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When Sibling Rivalry Comes Back to Bite Us

Posted by Anthony Serra | Jun 16, 2018 | 0 Comments

Sibling Rivalry

I see the following scenario (or versions of it) quite a bit in my law practice.  It goes something like this:

Son:  What - are you blind?  Can't you see that mom needs to go into a nursing home?

Daughter:  No she doesn't!  All she needs is some help.  She's fine staying in her home.

Son:  She can't even take care of herself or go to the bathroom without someone standing right over her.  Come on, get with the program.

Daughter:  We can get an aide to come in and help and we can take turns with grocery shopping and laundry and whatever else needs to get done.

Son:  I'm not doing that stuff.  Sorry, that's where I draw the line.  I have to work full time you know and I have a family to take care of as well.  You're just in denial of the situation.  Wake up and smell the coffee sis.  Mom can't even remember when I see her or the names of our kids.  And you want her to stay in her home??  I think you're the one who needs their head checked.

Daughter:  What are you talking about? – so her memory is bad.  That doesn't mean she has to be yanked out of her home like a criminal and dumped in some rat hole nursing home.  Mom always told us she never wanted to go into a nursing home.  You know that.  Doesn't that mean anything to you?  I am trying to carry out mom's wishes.

Son:  No one wants to go into a nursing home, I'll give you that.  But face it, it happens sometimes and there isn't much we can do about that.  Mom will get the care she needs and we don't have to carry the burden of her care which will only increase over time, you know that.  So why fight me on what you know is inevitable?

Daughter:  But it's about what mom needs now and NOW is what is important – not what will happen months or years from now.  Can't you see how important this is to mom that we keep her in her home as long as possible regardless of the future – none of us has a crystal ball so who knows what is going to happen?  You're just selfish and only care about yourself.

Son:  Well I had enough of this nonsense.  If you don't agree with me that mom needs a nursing home, I will hire an attorney and file for guardianship and become mom's legal guardian and I will be the one to make these decisions for mom – not someone who is in some fantasy world.  At this point in her life, mom needs someone who is rational and realistic to manage her affairs, not a daughter who is in la-la land and unable to face reality.

Daughter:  Go ahead and try. I'll get my own lawyer and become mom's guardian and you'll be sorry.

Daughter and Son at about the same time (assuming they are on the phone): Good – die trying! – click. . . hang up!!

Obviously, this is not an easy situation to resolve and reconcile.  Perhaps both children are well intentioned, but Daughter is trying to advocate for her mother and do what she believes her mother wants while Son see the world more objectively and feels he knows what is best for mom given her diminished mental state.  Both children may actually have valid concerns and suggestions, but rather than hear each other out, they engage in a battle to try and convince the other they are wrong which only leads to more conflict, nasty accusations and a greater resolve to hold their ground.  I see this every day and it is unfortunate for the parties since the only people who will benefit from this conflict are the lawyers who make a living from these types of disputes –  in fact, the more protracted the conflict, the more money the lawyers will make . . . but that's a discussion for another day. For now, it may be fair to say that these are seemingly well intentioned children who simply cannot get out of their own way.

Unfortunately, mom is in the center of this shooting match and her fate lies in hands of the child with the biggest mouth, largest bank account and greatest resolve to get their way.  If the Daughter prevails (I don't say “win” any longer since no one “wins” in family disputes like this), then mom gets to stay in her home for as long as possible regardless of whether that is indeed best for her.  But if Son prevails, off mom goes on a one-way trip to a nursing home, her protestations to the contrary fading silently into the night.  The problem is, while the children are doing their dance, mom is in limbo land with what little assets she has worked so hard her entire life to save being squandered on lawyers and “experts” opining about mom's mental capacity and ability to make meaningful decisions for herself – a question, ironically, to which the children already know the answer.  Mom, of course, is the victim in all of this, though she did nothing to deserve or justify this treatment.  Or is she….

Actually, mom is responsible for some of this – not because she raised two Type “A” Personality children who can't get their act together – but because she did not take some simple steps a few years ago when she was perfectly healthy and sign the necessary documents that could have avoided all of this, like a simple Power of Attorney and Living Will.  In these documents, mom would have been able to specify who she wants to make financial and medical decisions for her when and if she was no longer capable of doing so on her own.  She would not have left to chance (or the outcome of an extremely expensive and convoluted legal process) who that person would be.  She could have appointed someone who shared her values and in whom she was confident would carry out her wishes to the extent possible.

Moral of the story:

Fantasy world:  I love my children and they love me and I know they will do the right things for me when I am older.

Real world:   Get yourself a Power of Attorney and Living Will and designate the one child you trust the most to make decisions for you when you can't (or choose a third party if you know your kids will do nothing but fight).  Otherwise, the child you least want making decisions for you will likely be the one with the loudest voice, exactly what you don't want.  Take control while you are still in control as I like to say.

About the Author

Anthony Serra

Tony Serra is a passionate advocate, especially for the elderly, disabled and those of modest means who need the services of an experienced and caring attorney. For more than 30 years, Tony has been helping common, everyday folks navigate their way through life's turbulent waters. Through innovation and utilizing modern technology, Tony and his law firm are now able to offer quality legal services that at one time were prohibitively expensive, at a fraction of the cost. If you need basic legal services, such as a Will, Power of Attorney, Living Will, Special Needs Trust, real estate transactions, uncontested guardianship pleadings and much more, please visit our website and our SMART LAW legal services platform. You will be pleasantly surprised by what we offer and glad you did! Tony is also an experienced mediator and founder of the Conflict Resolution Center of NJ. Tony has specific training in family matters as well as elder law and contested guardianship and estate cases.  


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