The Sandwich Generation: Caring For Both Your Parents And Children.

Originally published in New York Journal, VOL. CXCIIi- NO.2 - INDEX 89

Being prepared is always the best practice By now, we have all heard the catchy phrase -- Sandwich Generation -- a moniker coined in the 1990s to describe individuals sandwiched between caring for and supporting their own children and at the same time caring for and sometimes supporting or helping support their aging parents.

Whether you are a baby boomer, a Generation X'er or a member of Generation Y -- in all probability someday you will also get to call yourself a member of the Sandwich Generation. With advances in medicine and better health care, our parents are living longer, often into their 80s and 90s, making the probability of membership within this generation more likely. In 25 years, experts predict there will be 60 million Americans between the ages of 66 and 84. Add to the mix the fact that couples are also having their children later in life. Finally, American families are more and more dispersed, which means that aging parents can live hundreds of miles away and support systems for families are no longer comprised of grandparents helping care for and raise their grandchildren. Rather, adult children find themselves juggling the demands of caring for aging parents and yet also caring for their own children.

The demands placed on the Sandwich Generation can be financial, emotional, legal and physical. This article will focus on some of the legal issues that need to be addressed in caring for our aging parents. In addition, the article will address the legal steps parents need to take to insure their own children are properly provided for. Finally, the article sets out the legal documents young adults should execute and the reasons why these documents have become critical.

Elder Law Issues Because we are living longer, the likelihood of either mental incapacity or physical incapacity is increasing. In order to be prepared should incapacity arise, it is imperative that our aging parents meet with an estate planning attorney and execute both financial and medical powers of attorney. The financial power of attorney authorizes a trusted individual, ordinarily a spouse or a trusted child, to manage an individual's financial affairs should issues of physical or mental incapacity ever arise.

Here is a recent real life example of why a financial power of attorney is critical. A school teacher collapsed at work and was rushed to the hospital. The teacher now lies in a coma, completely unable to communicate with her family or her doctors. The school district, her employer, offers long-term disability coverage, but only the school teacher herself or her agent designated pursuant to a financial power of attorney can elect to begin paying for and receiving the coverage. The cost of the attorney's time in preparing the financial power of attorney would be far outweighed by the financial loss of long-term disability coverage. In most states, if not all, the only alternative available to the family members of the school teacher would be a costly and very cumbersome guardianship proceeding wherein a guardian would be appointed and authorized to, among other things, elect to receive long-term disability coverage for the school teacher.

The second legal document that is a must is a medical power of attorney. This document names the individual that will make all medical decisions if an individual is unable to effectively communicate with his or her doctor either because of physical issues (such as an intubated patient who is unable to speak) or because of mental issues such as a patient with advanced Alzheimer's.

Another real-life example: Mom is in the hospital receiving treatment for her aggressive cancer. Mom is in and out of consciousness and unable to communicate with her doctors. Daughter has been appointed Mom's agent pursuant to a medical power of attorney and consults with Mom's doctors. Because Mom and daughter have discussed Mom's desires regarding her medical treatment and, specifically, her medical treatment for her cancer, daughter authorizes an experimental cancer treatment. Son arrives on the scene and disagrees with daughter's decision. Without the medical power of attorney being in place, it is possible that Mom's desires regarding her medical treatment would not have been followed.

We all remember watching the Terry Schiavo situation unfold in such a public way on the television and in the print media. No mater which side of the legal battle you identified with, it is critical that you make your wishes known should you ever find yourself suffering from a terminal or incurable medical condition. Every individual, especially the elderly, need to execute a third legal document known as a living will. This document ensures that an individual's medical end-of-life decisions are known and respected by family members and medical providers.

The final document every one of our moms and dads should have is a HIPAA authorization. Recent changes to federal laws prohibit doctors and hospitals from releasing protected health information unless HIPAA authorizations have been executed. There is an exception under HIPAA that allows covered entities to speak to family members without an authorization in place. However, this practice will vary from one provider to the next. So why risk not having n HIPAA authorization in place?

From a practical standpoint, unless your parent has executed a HIPAA authorization naming you as an individual authorized to receive protected health information, your parent's doctor and/or hospital is prohibited from speaking to you or releasing any medical information to you. Gone are the days of picking up the telephone and calling Mom's longtime doctor or nurse and checking on Mom's condition. This becomes especially problematic for parents that live long distances away, because the ability to participate in the actual doctor visits becomes very difficult. Make sure Mom and Dad both execute HIPAA authorizations naming each individual who is authorized to receive their personal medical information.

Legal Issues for Minor Children and Young Adults As an estate planning attorney, the issue that gives parents the greatest amount of angst is the decision about whom to name as guardian of their children should both parents die. While this is clearly a very emotional and important decision, thankfully, in my 18 years of practice, I have yet to have the situation arise in real life. If both parents die and the parents have not executed a legal instrument naming their desired guardian, the courts will be called upon to make the decision. The courts are always charged with the legal standard of appointing as guardian the individual who would be in the best interests of the child.

A far more important document for parents of minor children to have is a will. Why? Because minor children cannot own property. So, without a will in place creating trusts for minor children, most states require the creation of a guardianship or a court-created trust if a parent dies leaving property to a minor child.

Once children reach the age of 18, the law no longer considers them minors and, as parents, the law no longer considers us their natural guardians. Most young adults do not own any property of real significance -- that's right, an I-pod, six pairs of Converse tennis shoes, a messenger bag  and a lap top computer do not add up to an estate. But, that being said, because so many of the younger generation are delaying marriage, it may be that a young adult could have 10, 12 to 15 years where he or she is out in the work world accumulating assets and contributing to retirement plans. A young adult would be wise to execute both a financial power of attorney and a medical power of attorney for the same reasons listed for the older generation. Should a young adult become physically or mentally incapacitated, even for a short period of time, there needs to be someone legally designated to act on his or her behalf with respect to both the financial and medical issues that can arise. In most situations, the most logical choice to name as a young adult's agent is his or her parents.

Finally, last year's shootings at Virginia Tech underscored, all too tragically, why even young adults need to execute HIPAA authorizations. When parents living many miles from the school called local hospitals to find out if their child was a patient and, of course, to check on his or her status, hospitals were unable to provide parents with any information. Imagine the fear and the anguish these parents went through. Again the cost involved in having these legal documents drawn up pales in comparison to the emotional cost to these parents. Make sure your young adult executes all of the same documents your aging parents need: (1) Financial power of attorney; (2) Medical power of attorney; (3) Living will/advance directive; and (4) HIPAA authorizations.

Conclusion Being prepared is always the best practice. When it comes to our aging parents, do not wait until the opportunity to be prepared has passed when our parents no longer have the legal capacity to execute the necessary documents. Likewise, while it is easy to assume our children do not need to worry about such adult concerns, the reality is that today's world demands that even the youngest generation have their legal affairs in order.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Ms Bridget Purdie

Bracewell & Giuliani LLP 

711 Louisiana Street

Houston

Texas

UNITED STATES 

E-mail: [e-mail]

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