Casey Kasem’s passing is a sober reminder of how people with estate plans can still be subject to bitter Court disputes in their golden years. Prior to Mr. Kasem’s death his wife and children (from a prior marriage) were involved in a bitter conservatorship dispute. Mr. Kasem had apparently prepared a healthcare directive naming his daughter and her husband as agents to make health care decisions (according to news reports). But Kasem’s wife
had other ideas. She refused to allow Kasem’s daughter and husband to act. When faced with the possible appointment of a conservator over Kasem, she fled the state and went to Washington state where the battle over Kasem continued. Kasem’s passing ends the conservatorship dispute, but my guess is that there is an estate fight in the works.
Kasem’s plight prompts the question: what are family members to do when planning documents fail them?
Healthcare Directive Issues
In Kasem’s case, he had the right planning document in place—a healthcare directive—but it did him little good because his wife did not honor it, and the document cannot enforce itself. Since Kasim’s wife had possession of him, she was able to circumvent his wishes as stated in the Healthcare Directive apparently. So what good is a Healthcare Directive?
As with most planning, it is great to have and will work most of the time, but not all of the time. When you have warring family members who do not get along and work at cross-purposes to each other, then a piece of paper is not going to help much.
The key, is working together with family members to develop a workable plan that works for everyone. Easier said than done in some cases. But still, even in tough family situations communication is key.
Having a clear plan on who will make decisions, what the future plans will be for financial management and caregiving (either at home or at a facility), and as much about future medical decisions, or philosophies, is all helpful information. And the more that is written down, the better. If nothing else, it will help a Court make a good decision if ever a Court has to get involved in your future care. Don’t leave it up to chance, as chances are, you will be sadly disappointed by what occurs.
Convincing a Parent to Step Down as Sole Trustee
A similar problem is when a parent no longer has the ability to manage his or her financial affairs, but refuses to admit it. How does a child step in as successor Trustee when a parent refuses to step aside? While most Trust documents have a procedure to find a parent “incapacitated” to act, that procedure typically requires a note from one or two physicians—what if your parent refuses to go to the doctor, or refuses to have a mental exam done?
This is a tough problem with no good solution. If you cannot convince a parent to either step down or see a physician for a mental exam, you have few good choices.
Of course, you can file to obtain a conservatorship over your parent, which would then establish (in a very forcible, expensive, and public way) that your parent no longer has capacity (that’s what happens in a conservatorship, before being awarded the Court must make a finding that the elder lacks mental capacity). But that is not a good option, as it tends to make a mess of the entire situation (not to mention royally piss-off your parent—and you thought staying out past curfew was bad…).
Alternatively, I have had children act as a Co-Trustee as a means to provide help to a parent without pushing the parent aside altogether. Co-Trustees work together to jointly manage the Trust estate and pay bills. The Co-Trustee idea allows you to approach your parent and ask to help them in their role as Trustee, rather than replacing them in that role. A parent can remain as Co-Trustee with you, and you can take the laboring oar in managing Trust assets and paying bills. It can be a real win-win for everyone involved. And it is much easier to talk to a parent about helping them—not replacing them.
Estate planning is not perfect. There are challenges and issues that we must face. There’s no doubt that planning is important to avoid being dragged into Court, and a majority of the time good planning will avoid a trip to the courthouse, but not always.