If you are taking care of your elderly mother or father, especially if your parent is living in your house with you, pay attention: Your siblings will claim that you exerted undue influence on your parent. I am probably being a little overly cynical, but claims of undue influence, both before and after mom or dad have passed away, happen all the time and keep many lawyers in business with tens of thousands of dollars in legal fees paid pursuing and defending against claims of undue influence.
Unfortunately, the elderly in our society are susceptible to influence. In general, the elderly want to be liked and do not want to upset their children by disagreeing with something that the child proposes, particularly if the elderly parent is living with or dependent upon the child. Even when the child has no bad intentions, suggesting a course of action that the parent would not agree with is a type of influencing of the parent. And, even when the child has no bad intent at all, a suspicious or jealous sibling will do everything in his power to make those actions look as nefarious as possible.
If you are the primary caregiver for your parent or if your elderly parent lives with you, here, then, is the top 10 list1)Given the limitations of this medium, you will just need to imagine me throwing a note card/the crashing glass sound upon completion of each point of things that you absolutely must do to protect yourself from the inevitable claims that you have unduly influenced your parent2)“Paul, hit the music!” and stay tuned next week for a our new segment “Will this legal concept float?”.
The Top 10 Ways to Avoid an Undue Influence Claim Against You
#1: Be Transparent
Undue influence and particularly the suspicion of undue influence, grow in the shadows. Your siblings will become more and more suspicious if they have no idea what is happening with your parent’s health care and financial situations. Share financial statements and medical information with your siblings. “But wait a minute,” you say. “This is none of their business. What Mom and I do with her money is her business. I don’t have to tell my brother what we are doing.” You may feel this way and you may be right. However, if you choose to keep your siblings in the dark about mom’s health care and finances because it is not their “business,” just know that an eager lawyer will make it their business soon enough.
#2: Have a Written Agreement
You might think this is silly and overly formal, but make a written agreement with your parent about your arrangement with him/her. If Mom is going to contribute $200 per week for the joint household expenses, write it in an agreement. If Dad is going to pay you $1,000 per month for your caregiver services, write it in an agreement. If Mom and Dad are paying you back for expenses you incurred, write it in an agreement. When your brother sues you for undue influence (and he will) and the only thing that he sees is a check coming out of Mom or Dad’s checkbook written to you, he will naturally assume you were just cashing in at Mom or Dad’s expense. You might be able to convince the judge, eventually, that the arrangement with Mom and Dad was always on the up-and-up, but it will cost you much more in legal fees to do so than Mom or Dad ever paid to you. Write it down, have everyone sign it, and preferably have an independent third party (someone outside the family) be a witness to the agreement.
#3: Keep a Paper Trail
Receipts, receipts, receipts. Keep a receipt for every penny of your mom’s money that is spent. If Mom likes to pay with cash only, make sure you get a receipt for every cash purchase. If checks are written, make sure there is written documentation of the purpose of the check, especially if the check is to you3)see #2 above, your spouse, or to another person that would not be obvious what the check is for.
#4: Do Not Use Cash
Many elderly people like to operate only in cash. Trust me: cash causes problems. The only thing that your sister sees when she claims to everyone on Facebook that you are exploiting Mom is a bank account statement showing hundreds or thousands of dollars in ATM cash withdrawals every month. Sister is also likely to claim that you were the one using Mom’s debit card to make the withdrawals (which is probably true). It looks bad for you even if you did nothing wrong and even if you really did give all of the cash to Mom. Strongly encourage Mom to use a debit card or write checks4)I know, I’m old fashioned. A debit card purchase will at least show the payee on the bank statement if you forget my advice in #3 to keep receipts. If Mom insists on using cash, remember to keep receipts for every penny.
#5 Document Gifts or Avoid Gifts Altogether
Just as cash causes problems, so too do gifts. Mom may want to give you a couple hundred dollars here or there to thank you for your hard work. Or, Mom may give you an item of jewelry (usually the coveted diamond wedding ring). It is best to avoid gifts prior to death altogether, but if Mom insists on giving you something (whether it has a lot of value or just sentimental value) you need to protect yourself because Sister is not going to be happy when you claim that Mom gave you the diamond ring. Make written documentation of the gift and have Mom sign it. Document what the item is, when Mom gave it to you, and, in the best case scenario, a statement of why she is giving you the gift. More importantly, have an independent third party (someone outside the family, like an attorney, and preferably not one of your friends) also sign a statement about the gift. It would be most effective if the third party witness talked with Mom outside of your presence about the gift and could sign a statement explaining why Mom is making the gift. The more documentation you have, the better it will be for you when Sister sues you for taking Mom’s jewelry or stealing Mom’s cash.
#6: No Joint Bank Accounts
If Dad suggests that he wants to add your name to his bank account, urge him not to do so. When a bank account is held in joint ownership and one of the joint owners dies, the law presumes that the surviving joint owner is the 100% legal owner of the bank account and has no legal obligation to share the account with anyone else. Brother will claim that you wrongfully convinced Dad to put your name on the bank account so that you could claim surviving ownership of the account when that is not what Dad intended. Instead of joint bank accounts, Dad should consider adding your name to the account as a power-of-attorney5)but remember that all authority as power of attorney terminates upon Dad’s death, or Dad may consider creating a revocable living trust and placing the account in the trust with you as a trustee. Which brings me to …
#7: Proper Estate Planning
Hopefully, far in advance of you taking care of Mom full time or having Mom live with you, Mom established a relationship with a good estate planning attorney and has signed power of attorney documents and possibly, created a revocable living trust. If Mom has not yet done so, Mom should do so as soon as possible. WARNING: This is a sticky process. If you find the attorney for Mom, set up the appointment with the attorney, drive Mom to the appointment, or sit in with Mom and the attorney in the consultation and signing appointments, these facts will be used as evidence that you unduly influenced Mom to make the power of attorney, will, and/or trust that benefits you. Be helpful, but not overreaching. If Mom does need help getting to the attorney’s office for the meeting, do not sit in any meeting with Mom and the attorney. If Mom disinherits any of your siblings after she has started to live with you or after you are her caregiver, just know that you will be sued for undue influence even if you had nothing to do with the decision or process of your Mom disinheriting your sibling. I repeat, if Mom disinherits one of your siblings, you will be sued. In any event, even with potential problems, it is far better for Mom to have met independently with a good estate planning attorney who can do an independent analysis of Mom’s situation and assist her in making her wishes known.
#8: Do Not Use Fill in the Blank Estate Planning Forms
Dad probably does not want to pay for an expensive attorney to do estate planning for him (see #7). You cannot make him do so. But, please do not make the situation worse by buying Dad the fill-in-the-blank forms that are available at office supply stores. More often than not, these forms are completed incorrectly or signed, notarized, or witnessed incorrectly, both of which could cause the forms to be invalid. In any event, Sister will claim that you unduly influenced Dad to sign these forms, especially when everything is filled in in your handwriting, not Dad’s.
#9: Do Not Isolate Your Parents
It is crucial that you allow your siblings access to your parent, including phone access, email access, and in-person access. Even if you cannot stand to see your brother’s face, if he feels like you are preventing him from seeing Mom, he will sue you for undue influence. Be overly accommodating and go out of your way to make time for Mom to spend time with your siblings or to speak with them on the phone. To protect yourself even further, keep a log if your mother’s visits with her other children and keep track of the phone records that show calls to and from Mom with her other children.
#10 Repair Relationships
This may be the most difficult advice to give and for you to receive. If you are reading this blog post, and you are concerned about what your siblings will claim about you and your relationship with your parents, then you might have a dysfunctional relationship with your siblings. These could be deep-rooted issues and you may not like each other as much as you used to. As much as we all dislike minor children being a pawn in a divorce proceeding, it is equally bad when an elderly parent is used as a pawn in a power struggle between feuding adult siblings6)who often times are not acting very much like adults. This is a great opportunity to heal with your siblings and bring everyone around to supporting Mom or Dad in their later years. Swallow the bitter pill, be the better person, and make that most difficult first phone call to bury the hatchet7)It seems so much worse in theory than in practice. If you think your relationship with your siblings is bad before Mom or Dad pass away, just wait until Mom or Dad have died and you are sued for undue influence to see how much worse it can get.
Unfortunately, most people who care for their parents as a primary caregiver, or who have their parents living with them, are unaware of the undue influence risk. Relying on the well-worn statement of “I didn’t put a gun to her head” is not a very effective defense when your siblings – or rather your siblings’ attorney – come calling to claim that you exerted undue influence on your parent. The last person you will want to see while grieving your loss is a process server.
Footnotes [ + ]
|1.||↑||Given the limitations of this medium, you will just need to imagine me throwing a note card/the crashing glass sound upon completion of each point|
|2.||↑||“Paul, hit the music!” and stay tuned next week for a our new segment “Will this legal concept float?”|
|3.||↑||see #2 above|
|4.||↑||I know, I’m old fashioned|
|5.||↑||but remember that all authority as power of attorney terminates upon Dad’s death|
|6.||↑||who often times are not acting very much like adults|
|7.||↑||It seems so much worse in theory than in practice|