San Francisco Office

FAQ – Elder Care Matters


My mother is scheduled for surgery and wants my brother and me to manage her affairs for six months. She has a living trust and power of attorney that names both of us to take over if she is incapacitated.  She says that this will be a good way for us to prepare for a time when she is permanently incapacitated. My brother and I are willing to accept this responsibility, but we need advice on how to do this properly and efficiently.   We both have different habits and views. For example, I balance my checkbook to the penny and my brother is not so good at keeping records.

To serve your mother’s best interests, you have to understand you role and how you should carry it out.

First, you have to understand that your role is that of a fiduciary. This is a person with the ethical duty to act only in the best interest of the beneficiary, even at the expense of your interests. Your mother is your beneficiary and your duty is solely to her. For example, you may face a situation in which your mother’s bank overcharged her by $10. If this was your own bank account, you may choose to overlook the error, but, because the bank account is your mother’s money, it is your fiduciary duty to make the bank correct the error.

Next, you have to acquaint yourself with your powers and duties under the various documents your mother has in effect. This means that you and your brother and your mother should make an appointment to meet with your mother’s attorney. At this meeting, you will examine your mother’s documents to understand what you are authorized to do. This is tedious but necessary.  The Health Care Powers and the Durable Power of Attorney should cover all your mother’s financial and personal care decisions.   Your mother’s trust may also have duties for you to carry out while she is living.

Then, you have to present your credentials to the people and organizations you will be dealing with during the next six months. This means that you will visit your mother’s banks and brokerage houses and her physicians and show them the documents that allow you to act for her. You may use your mother’s password or create your own to do her on-line banking. When your mother’s taxes are due, you have to collect her tax documents and make arrangements with her accountant for timely filing of her state and federal returns.

Lastly, you must keep accurate records in the proper form.  This means that you have to account for every receipt and every expense in every transaction in which you acted on behalf of your mother. In the account showing your actions during the six months, you would list your mother’s assets, your expenditures and the receipts and balance them out. Your mother’s attorney will provide the Summary forms the Court would require in a probate or trust proceeding.

Your mother is wise to name the two of you to act on her behalf. You and your brother are both responsible for all the fiduciary actions, regardless of who carried them out. This means that you and your brother have to divide the labor and act and a check and balance on the each other’s’ activities. If you are both conscientious and willing to work with each other and your mother’s professionals for your mother’s benefit, this six-month exercise should provide a good education in the powers and duties of fiduciaries and prepare you for the time when your mother really needs you.

Mediating Elder Care Issues

My sister and I disagree on how to take care of my father after his stroke? I want to have the Court appoint me as the sole Conservator to manage all my father’s personal and financial affairs. My sister doesn’t like the idea of court involvement and wants my father to stay in his home even though he can’t live by himself.   How can mediation resolve this family impasse?

A third party who acts as a Neutral will enlighten you on the realities of court conservatorship proceedings and will guide you in finding common ground with your sister. Mediation will keep your family dispute private and help you focus on your father’s welfare.

Conservatorship Proceedings: If you insist on conservatorship, you may be dissatisfied with the outcome of the proceedings and the extent of  its intrusion into your father’s life. When the Court takes over the supervision of the affairs of an incapacitated person, the Court is under duty to respect the best interests and dignity of the protected person and makes long and diligent inquiries into the financial, personal and medical history of the person to be protected. This Court supervision continues until the Conservatorship ends.

Appointment of a Conservator: If the Court determines that you and your sister do not get along and cannot work together, the Court may rule that your sister, and not you, would be the more appropriate person to appoint. Also, if your father tells the Court that he prefers to have your sister as his Conservator, the Court will favor this nomination. You can do your own evaluation of the downside of conservatorship by visiting conservatorship proceedings in your probate court.   You might ask yourself what effect these proceedings would have on your father and your relationship with your sister and the rest of the family.

Finding Common Ground: If you agree that you should seek court involvement only as a last resort, mediation may allow you to resolve your dispute with your sister because it provides a setting where you have the opportunity to be heard in confidence and have a say in the outcome. At a mediation session, the mediator conducts the meeting as a neutral allowing each position to be heard on the issues.  In your case, your father should participate only to the extent he desires. At the outset of the session, the mediator will have you and your sister establish one important goal and then identify ways to implement that goal. During the session, you and your sister and your father will each be heard, uninterrupted. The objective is to improve communication and generate options for a mutually agreeable resolution of most benefit to your father.   A successful mediation is focused and productive. Mediation has a high record of success because it is cost-effective and allows the parties to avoid conservatorship and settle their differences in private.