A recent New Jersey appeals court case demonstrates how important it is for families come up with a long-term care plan before an emergency strikes to avoid conflict later. The case involves two brothers who got into a fight over whether to place their mother in a nursing home. R.G. was the primary caregiver for his parents and their agent under powers of attorney. After R.G.’s mother fell ill, R.G. wanted to place his mother in a nursing home. R.G.’s brother objected to this plan, but R.G., as mom’s Agent, went ahead and admitted their mother to a nursing home. R.G.’s brother sent angry and threatening texts and emails to R.G. as well as emails expressing his desire to find a way to care for their parents in their home. Eventually the men got into a physical altercation and R.G went to court and obtained a restraining order against his brother.

In granting the restraining order, the trial judge ruled that R.G. had been harassed and assaulted.  R.G.’s brother appealed, arguing that R.G. did not meet the definition of a victim of domestic violence under New Jersey law.  A New Jersey appeals court reversed the trial court, ruling that R.G.’s brother’s actions did not amount to domestic violence. According to the court, there was insufficient evidence that R.G.’s brother purposely acted to harass R.G., ruling that “a mere expression of anger between persons in a requisite relationship is not an act of harassment.” Whether or not R.G. would have been successful in obtaining a restraining order in Arizona, is not the topic of this blog. I think the more important take away is what can be done to avoid things getting to this point in the first place?

Unfortunately, we see cases like this in Arizona where siblings disagree about what is “best” for mom all too often. In fact, some of our clients do have restraining orders in place against a sibling as a result of similar disputes. But what steps can be taken to avoid such disputes? Ideally, children should talk with mom and dad before they need care to explore options and determine their parents’ wishes before the need arises to avoid drawn-out and costly disputes later.  They may even wish to seek advice of an elder law attorney to have a plan in place to protect assets in the event of long term care expenses arise in the future. In our experience, many disputes arise between siblings when one or more do not have a true understanding of the medical and other needs of mom and dad, and have formed their opinion on inaccurate or incomplete information. In those instances, perhaps a sit-down meeting with mom’s physicians and/or the involvement of a geriatric care manager (professional third party) to assess needs, make recommendations, and help provide clarity and understanding to the situation can be invaluable to reaching agreement. Of course, if there is an Agent under Health Care Power of Attorney and mom and dad can no longer make their own medical decisions, the Agent can act without the consent of other family members. After all, mom and dad picked them for a reason. However, if there is no valid Health Care Power of Attorney,  the law may then require majority vote of the adult children to act but when no agreement is possible legal battles may ensue.  A court can appoint a legal Guardian and even make the placement decisions. Whether family agrees or disagrees, we can help you understand all of the long term care options and resources available, and assist in those difficult cases when there is dissent.

-Stephanie Bivens