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Talking Wills and Estates with Elderly Parents

While it’s never an easy subject to broach with elderly parents who have “not got around” to estate planning, knowing their wishes upfront can save a lot of stress down the line.   

The reality and consequences of not planning far outweighs the uncomfortable conversation. Death is a reality, and the correct planning eliminates the stress of uncertainty and lack of knowledge. Have this conversation as early as possible and revisit regularly to ensure all are aware of the process, desired outcomes and certainty of future.  

What you should keep in mind:

  1. Keep notes so that you can refer back to them, especially if you have to communicate this to another sibling or if your parents need to go back and discuss details. This will help you manage the process only though; in terms of who gets what and their actual wishes, a valid will is still the only legally accepted document.
  2. Be empathetic and listen to their concerns and needs. Nobody wants to consider their immortality. If this is a tough subject in your family, give your parents space and time, but be firm about the fact that it needs to be done.   

Questions to ask your parents:

  1. What planning have you done? It’s important to establish whether they have drawn up a will and spoken with a lawyer. And if so, who the executor is. Also clarify which family members should be involved in the planning process to avoid conflicts in the future.
  2. Do you have special needs and wishes? This can be in connection with philanthropy issues, gifting strategies to grandchildren, funeral arrangements, who cares for their animals or any charitable goals they might have.
  3. Who will look after them? It’s crucial that they identify people they trust now, while they are still able, to make decisions in the event they are unable to make decisions for themselves. What will happen to the remaining partner/parent if one passes? Who will care for your parents? Don’t underestimate the expense and the stress it can place on a young family having to look after elderly parents. Think about what role you are willing to take on. Many parents are adamant that they don’t want their children to take care of them in their later years – in this case, what would their preferred option be? What are the financial implications and responsibilities?
  4. If there are business interests involved, who will take control and what will be the arrangements around succession?
  5. Advanced medical care considerations. A living will speaks for you when you can’t speak for yourself, laying out the wishes concerning the use of life-sustaining treatment, procedures or medications one wants or doesn’t want in the event of becoming permanently unconscious or terminally ill. This can include a Do Not Resuscitate (DNR) order if they don’t want doctors to use life-saving measure to revive them if their heart stops functioning or they stop breathing. While it’s very hard to think about the possible situations and the decisions that may need to be made, it is an important document to consider.  

What happens if a parent loses the ability to clarify their wishes and nothing has been documented?

This is a very complicated process and mostly misunderstood as physical incapacity and mental incapacity need to be handled differently.   

Most people think if there is a power of attorney granted, they can act on behalf of the individual, which is mostly not the case. A power of attorney can be useful for someone who is frail or indisposed or traveling out of the country, or simply not up to dealing with commercial matters. But they become inoperative the moment the grantor of the power loses capacity. The reason being that an agent cannot have more power than the principal. Thus, it is unlawful to act based on a power of attorney, if you are aware that the principal has lost capacity.  

The only option open in this instance is to apply for a Curator Bonis to act on behalf of the person’s finances. The application is made to the High Court, in the jurisdiction in which the individual resides, to declare such person incapable of managing his or her own affairs and appointing a person (the Curator Bonis) to take charge of the affairs.  

As you can see there are many elements to consider beyond the distribution of assets. It is therefore strongly advised that you bring in an attorney who specialises in wills and estate planning to mediate the conversation and suggest areas of discussion you may not have thought of, as well as draw up legal documents. 

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