This may sound cynical, but if you benevolently care for an elderly relative’s everyday needs, expect to deal with undue influence claims from interested parties when the elder’s estate enters probate.
This is especially true when children offer live-in home care for an incapacitated parent and take over the parent’s financial decision-making responsibilities.
The will dispute attorneys at iowaprobatelitigation.com regularly provide counsel for such innocent siblings—individuals who perform caregiver services in good faith and usually without compensation only to find themselves defending a costly undue influence lawsuit after their loved one passes away.
Iowa Probate Code rightfully protects susceptible seniors from influencers who exploit their intent to gain a personal benefit. A fine line therefore lies between primary caregivers acting with sincere intentions and carelessly swaying a caregiver recipient to do something they wouldn’t normally do.
Just imagine a father forming a trusting, confidential relationship with his daughter to care for his needs, and later the daughter innocently suggesting to dad that he sell a family heirloom to pay for a new car—is this undue influence?
If you’re taking care of a parent or sick relative, consider these nine recommendations for protecting yourself against undue influence claims, posted by the will dispute defense lawyers at the Smith Law Firm in Iowa.
#1 Openly Communicate With Siblings and Other Relatives
Undue influence suspicion often rises in the shadows of the unknown. When children and family members are unaware of where their loved one’s healthcare and finances stand while in the care of another, they usually become suspicious.
Caregivers should therefore openly share among siblings the details about the elder’s financial and medical affairs. You can send casual monthly emails with medical updates to family members or offer concerned relatives informal accountings immediately upon request—never feel that this information is none of their concern because, in principle, it is.
#2: Draft and Execute a Written Personal Care Agreement
Formal written agreements among blood-relative caregivers and recipients that memorialize their promises, duties and responsibilities are not silly, they’re actually necessary. If the elderly recipient agrees to: pay rent, compensate you for caregiver services, contribute to household expenses or the like, put it in writing.
Better yet, have an estate attorney draft and execute the agreement for you—that way, if an interested party tries to sue you for undue influence (which will most likely happen), you’ll have evidence in hand to prove the arrangements were mutually agreed upon and fair.
#3: Keep Records and Account for Everything
Caregivers who assume control of a relative recipient’s personal finances hold a fiduciary duty to keep records of significant cash transactions or property acquisitions/sales that occur during their tenure—at minimal, your estate accounting files should hold cash receipts and invoices with accurate descriptions of what the recipient bought or sold; the date of the transaction; and the entity or person who received/delivered the asset.
#4: Avoid Using Cash When Possible
Probate litigators regularly advise fiduciary caregivers that cash dealings can lead to undue influence allegations during probate proceedings.
Most family members don’t understand that the elderly like to spend cash to pay for things, which is why a curious sibling may notice many ATM withdrawals on their mom’s bank statement when reviewing her finances.
Regardless of whether you know the caregiver recipient’s ATM pin number or not, financial records displaying thousands of dollars of cash withdrawals each month just looks wrong to any person who reviews the accounts—make sure the elder always pays for items with a credit card or debit card or writes a check, doing so will document the payee and can help you explain how the recipient spent his or her money if an inquiry follows.
#5 Avoid Accepting Gifts and Document All Gift Transactions
Gifting estate assets that are in your care can cause problems too. Never accept cash or property gifts from caregiver recipients unless the transfer is documented in the personal care agreement, and even then, the exchange must be bargained for, fair and hold valid consideration provided by both sides.
Sometimes a father will want to give his caregiver daughter a few hundred dollars to thank her for her hard work. We recommend that the daughter refuse the gift and accept payment only in smiles.
If however you accept property or gifts in kind, protect yourself by memorializing the event in writing, detailing why the caregiver recipient gave you the asset, its value, and the date of the transaction—better yet, have an estate attorney draft, witness and execute an inter vivos gift transfer-of-title to keep for your records.
#6: Never Commingle Assets
This means no opening joint bank accounts or taking money from the elder’s savings to pay your personal expenses (even if you plan to pay it back later)—bank assets held in joint tenancy may further automatically revert to the surviving owner upon the death of the other owner, effectively excluding the property from probate and opening yourself up to undue influence suspicion.
#7: Let Recipients Plan or Modify Their Estates Independently
You must not participate in the planning of your relative’s estate. If the elder asks for your help, politely refuse, but you can assist the senior in locating independent agencies that will help him or her find a good estate planning attorney.
The worst thing you can do is locate an estate attorney for the caregiver recipient, take him or her to the initial consultation, and be present at the will signing ceremony—all culpatory acts that interested parties can offer as evidence in probate court when proving up their undue influence claim against you.
#8: Always Allow Family Member Visits
Visitation privileges should include full access to the caregiver recipient’s cell phone, email and social media platforms. You should further keep a visitation log and save phone records to prove the elder held unrestricted access to other family members.
Also, never deny in-person visits from siblings you can’t stand—which leads us to our final recommendation….
#9 Repair Sibling Rivalry Relationships
Often the most challenging to do, mending dysfunctional relationships among family members while caring for a blood-relative and managing his or her estate finances is essential for warding off costly undue influence litigation.
Take advantage of the opportunity and heal old wounds, even if it means swallowing a little pride to get the job done—you should make first contact, bury the hatchet, and strive for bringing the family together to revel in the elder’s golden years collectively.
