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Wills & Estate Administration

When a loved one dies leaving a Will, the question of who will administer the Estate is usually contained in the document. Letters of Testamentary are granted to the person named as the Executor in the Will. If the named Executor or named successor Executor is unable or unwilling to serve and no successor executor is named, the Court will follow the order of priority for qualification utilized for intestate Decedent’s estates. An intestate estate is the legal term for individuals who die leaving no Will. The order of priority for who will serve when there is no named Executor willing or able to serve or when there is no will is set forth in North Carolina General Statute § 28A-4- 1(b).

N.C.G.S. § 28A-4- 1(b) provides a prioritized list, subject to the Clerk’s discretion and what is best for the Estate, of who shall be granted Letters of Administration:

a. surviving spouse;
b. any devisee of the testator;
c. any heir of the Decedent;
d. any next of kin of the Decedent, with a person who is of a closer kinship under N.C.G.S.
§ 104A-1 having priority;
e. any creditor of the Decedent;
f. any person of good character residing in the county who applies for Letters; then
g. any other person of good character who is not disqualified to serve as personal
representative under N.C.G.S. § 28A-4- 2.

Who Cannot Be Named an Executor of a Will

There are some circumstances when the person named in the Will as the Executor or the person listed above is not authorized to serve as a matter of law. Specifically, N.C.G.S § 28A-4- 2 sets forth a list of persons who would not be able to qualify as a personal representative. No person is qualified to serve as personal representative who:

1. Is under 18 years of age;
2. Has been adjudged incompetent in a formal proceeding and remains under such
3. Is a convicted felon and whose citizenship has not been restored;
4. Is a nonresident of North Carolina and has not appointed a resident process agent;
5. Is a corporation not authorized to act as a personal representative in North Carolina;
6. Has lost that person’s rights as provided by N.C.G.S. §31A;
7. Is illiterate;
8. Is a person that the Clerk of Court finds otherwise unsuitable; or
9. Is a person who has renounced their right.

Estate Planning Attorneys Can Help Name Executors of Wills

Administering an Estate can involve a significant amount of work. Individuals named as an Executor in a Will should seek legal counsel prior to attempting to qualify. A meeting with an attorney who routinely practices estate administration will assist a named Executor in understanding, prior to qualification, what type of administration will be necessary and the steps required to complete the administration of the Estate. If you have any questions about estate administration or need help naming an Executor to your will, we would be glad to help. Just give us a call at (910) 815-0085 to set up a consultation with our expert Estate Planning attorneys here in Wilmington, NC.

Why can’t I paint my house green, pink, or yellow: Architectural Restrictions in a Community Association

A common complaint among those unhappy with their community association, or disdainful of community associations in general, often sounds something like: “I don’t want to be told what color to paint my house or what kind of shed I can build in my backyard.” Putting aside the discussion of the pros and cons of community associations, the obstinate homeowner raises some important questions regarding the definition of architectural restrictions, the basis of the architectural review committee’s authority, and the architectural review committee’s options for enforcing its guidelines and decisions.

What Are Architectural Restrictions?

Architectural restrictions are guidelines, standards, or rules that set forth requirements for the size, color, location, and materials of construction and improvements within the neighborhood. Such restrictions serve the purpose of maintaining aesthetic quality and conformity within the community, and of increasing the value of the homes in the community. They are usually promulgated by the developer, the board of directors, or a committee of directors of association.

Where Do Architectural Committees Attain Power and What Rules Must They Follow?

Most often, the board of directors of the planned community will appoint the architectural review committee. The declaration of covenants or the bylaws of the planned community usually provide this power. If the governing documents do not state otherwise, the board of directors may appoint itself as the architectural committee. As with any committee in a community association, the architectural review committee must follow the rules set out in the governing documents as well as the requirements of the Planned Community Act (N.C.G.S. §47F) and the Nonprofit Corporation Act (N.C.G.S. §55A).

How Are Architectural Committees Appointed?

The community association’s governing documents should set forth whether the board of directors has the ability to appoint architectural committees and, if so, the process for appointing such committees. If the governing documents to not set out a procedure for appointing committees, and do not disallow committees, the creation of a committee and appointment of members to it shall be approved by the greater of (1) a majority of all the directors in office when the action is taken, or (2) the number of directors required by the governing documents to take action in a meeting. N.C.G.S. § 55A-8- 25. The association may wish to contact its attorney to ensure the architectural review committee was properly appointed.

How are Violations Enforced?

The most common method of enforcing the architectural restrictions is to impose fines for violations, or to suspend privileges such as access to association amenities. Before imposing any fines or suspending privileges, in most cases the association must provide the homeowner with notice of its intent to impose fines and allow the homeowner an opportunity to be heard to challenge the decision to impose the fines. N.C.G.S. § 47F- 3-107.1. If imposing fines and/or suspending privileges does not compel the homeowner to remedy the violation, the association may consider seeking injunctive relief. Getting the court to require a homeowner to comply with the architectural guidelines or the architectural review committee’s decision requires filing a complaint with the superior court of the county in which the property is located, serving the homeowner with the complaint, and holding a hearing before a superior court judge. It may be wise to contact your association’s attorney to review the governing documents and architectural review guidelines to evaluate enforcement options.

An Easement Crosses My Property – What Are My Responsibilities?

Robert Frost knows that “good fences make good neighbors.” If anything makes a bad neighbor, other than a bad fence, it is a bad easement. Easements can be a significant source of contention among neighbors, causing ill will, hostility, and sometimes costly litigation. Among the issues that may arise between the dominant estate holder (the person whose property is benefited by the easement) and the servient estate holder (the person whose property is burdened by the easement) are questions regarding who must maintain the easement area, what activities are allowed under the easement, and how to enforce each party’s rights under the easement.

Responsibility to Maintain the Easement

The North Carolina Supreme Court has held that the dominant estate holder is responsible for maintaining the easement area. Green v. Duke Power Co., 305 N.C. 603 (N.C. 1982). Unless language in the easement provides otherwise, the servient estate holder has no obligation to maintain the easement area. Id. As a result, "if the character of the easement is such that a failure to keep it in repair will result in injury to the servient estate or to third persons, the owner of the easement will be liable in damages for the injury so caused." Id.

Overburdening the Easement

To determine whether the dominant estate holder is exceeding the rights under the easement, the servient estate holder should look first to the language granting the easement. If the language is unclear (as often will be the case when a dispute arises), then the analysis may turn to the intent of the parties who created the easement. It therefore may be necessary to evaluate the circumstances that existed at the time the easement was created. Depending on the language of the easement and the circumstances existing at the time the easement was created, uses not expressly allowed could be found to be in violation of the servient estate holder’s rights. See Swaim v. Simpson, 120 N.C. App. 863, 463 S.E.2d 785 (1995) and Moore v. Leveris, 128 N.C. App, 276, 495 S.E.2d 153 (1998). In other cases, the seemingly expanded use may be deemed permissible. See Chestnut Branch, LLC v. Public Interest Projects, Inc. (COA04-1406, 2006 N.C. App.). In any case, determining the dominant or servient estate holder’s rights under the easement will require a careful review of the granting language, the surrounding circumstances, and the relevant case law.

Enforcement of Easement Rights

What do you do if the easement holder is overburdening or failing to maintain the easement? A court can issue a mandatory injunction, requiring the easement holder to take certain action (such as maintaining the easement by clearing the easement area), or a prohibitory injunction, requiring the easement holder to refrain from certain action (such as using a utility easement for vehicular access). The same remedies may be available to the dominant estate holder if the servient estate holder is obstructing access to the easement. Obtaining a mandatory or prohibitory injunction against another party requires filing a complaint in the county in which the property is located and holding a hearing before a superior court judge. At the hearing, the judge has the option to impose damages in favor of the aggrieved party. The damages could be calculated to cover compensation for injuries suffered as a result of the violation or the difference in value of the easement before and after the violation.


What are Bylaws? Bylaws outline the organizational structure of the corporation. B. They tell shareholders, directors, and officers the how, the what, the who, and the when in terms of how a corporation functions. Directors, officers, and shareholders should look to the bylaws for guidance on their roles and on how the corporation functions as a legal entity. When forming a North Carolina corporation, the first step is to draft and file articles of incorporation with the NC Secretary of State. “Corporate existence begins when the articles of incorporation become effective.” N.C.G.S. § 55-2- 03(a).

Bylaws, though, are not typically filed with the Secretary of State. This can lead some incorporators to assume that bylaws are not necessary to conduct business as a corporation. Indeed, there is North Carolina case law suggesting that the absence of bylaws will not necessarily invalidate the corporation. Conversely, the North Carolina Business Corporation Act (the “Act”) provides that “the incorporators or board of directors of a corporation shall adopt initial bylaws for the corporation.” N.C.G.S. § 55-2- 06(a). The Act further provides that, after incorporation, either the initial directors or the incorporator shall hold an organizational meeting to, among other things, adopt the bylaws. N.C.G.S. § 55-2- 05. It is therefore highly advisable for a corporation to adopt bylaws.

Should We Adopt Bylaws

North Carolina corporations should adopt bylaws not only because of the aforementioned provisions of the Act, but also because of the organizational clarity and procedural predictability that comes with having a clear and comprehensive set of bylaws. All bylaws should set forth the roles, authority, and duties of the officers, the number and manner of electing directors, and the time and date of the annual shareholders’ meeting. In addition, bylaws may contain “any provision for managing the business and regulating the affairs of the corporation that is not inconsistent with law or the articles of incorporation.” N.C.G.S. § 55-2- 06(b). These additional provisions may include, but need not be limited to, the quorum required for meetings of the shareholders or directors, the time and place of the annual shareholders’ and directors’ meetings, the vote and notice required to call meetings, the requirements for use of proxies in meetings, and the procedure for taking action without a meeting.

Amendments to Bylaws

To amend the bylaws, the first question to ask is whether the provision to be amended was adopted by the shareholders or the directors. If adopted by the shareholders, the shareholders must approve the amendment unless the bylaws or articles of incorporation specifically state that the directors may amend that particular provision. N.C.G.S § 55-10- 22(a). If the provision to be amended was initially adopted by the directors, then in most cases either the shareholders or the directors may amend that provision.

Contact your corporation’s attorney to discuss preparing, adopting, or amending your corporation’s bylaws.

Can a Board of Directors Take Action Without Meeting In Person?

 Anyone serving on a board of directors (whether for a business, for a charitable organization, or for a homeowner’s association) knows the situation: just a week after the last board meeting, the board needs to take a certain action, and half of the board is not available to meet in person before it is too late.  Fortunately, the North Carolina Business Corporation Act (the “Business Corporation Act”) and the North Carolina Nonprofit Act (the “Nonprofit Act”) allow board of directors to take action outside of a formal, in-person meeting.  Unfortunately, many individuals serving on boards of directors do not understand the requirements for taking such action.

The Business Corporation Act and the Nonprofit Act allow directors to “participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting.”  N.C.G.S. § 55-8-20(b) and 55A-8-20(b) (emphasis added).  The board of directors may take action during a regular or special meeting in which some directors are not physically present as long as all directors participating in the meeting can be heard simultaneously, for instance, through a conference call or videoconference.  Since directors cannot hear each other simultaneously using written communication or email, such communication cannot qualify as an acceptable means of conducting a regular or special meeting.

Alternative Actions for Board Meetings

As an alternative to holding a regular or special meeting through a conference call or videoconference, the Business Corporation Act and Nonprofit Act allow a board of directors to take action by unanimous written consent.  Action by written consent outside of a formal meeting is only effective if the board of directors unanimously approves the action.  N.C.G.S. §§ 55-8-21(a) and 55A-8-21(a).  The action must be accompanied by a written consent “signed by each director, describing the action taken, and included in the minutes or filed with the corporate records reflecting the action taken.”  Id.  “The action is effective when the last director signs the consent, unless the consent specifies a different effective date.”  N.C.G.S. §§ 55-8-21(b) and 55A-8-21(b).  

Obtaining a written consent signed by all directors may be more efficient than holding a special meeting, but it could still be insufficient for timely action when one or more directors is unable to sign the consent.  As a potential solution, both Acts allow the written consents to be in electronic format, including e-mail, if authorized by the articles of incorporation, bylaws, or by action of the board of directors.  N.C.G.S. §§ 55-1-50 and 55A-1-70.  To ensure that the board of directors can act as efficiently as possible for the benefit of the corporation, it may be in the corporation’s best interest to amend its bylaws to allow written consents to board action to be in electronic form and delivered by electronic means.

In summary, the Business Corporation Act and the Nonprofit Act provide only two ways in which directors of a corporation can take action outside of a formal, in-person meeting.  First, the directors can “unanimously take action without a meeting if the action is described in one or more written consents signed by all of the directors. . . .” §§ 55-8-21(a) and 55A-8-21(a).  The written consents may be in electronic format if authorized by the articles of incorporation, bylaws, or action of the board of directors.  Second, the directors “may participate in a regular or special meeting by telephone or any other means of communication by which all participants can simultaneously hear each other during the meeting.”  §§ 55-8-20(b) and 55A-8-20(b).

HOA Conflicts of Interest

Directors owe a duty of loyalty to the Association, meaning they must act in the Association’s best interest.  Doing so requires spotting and properly handling conflicts of interest.  But what, exactly, is a conflict of interest?  Does a director have a conflict of interest if the Board is accepting bids for a new pool facility and the director plays golf with one of the bidding contractors?  What if the contractor is the director’s cousin?  What if the Board member is a 10% owner in the contractor’s business?  Board members frequently face similar quandaries, and HOA Boards often struggle with how to identify and resolve conflicts of interest.  Stated simply, a conflict of interest arises when a director’s financial interests may be affected by the Board’s decision.  The director with the golf buddy is not conflicted out of the vote, and neither is the director whose cousin has submitted a bid.  The director with the ownership interest in the contractor’s company does, somewhat obviously, have a conflict of interest in voting on which contractor to hire.  A more detailed explanation follows.

Under N.C.G.S. 55A-8-31, there are two types of conflicts of interest: direct and indirect.  A direct conflict of interest is not defined in the statute, but occurs when the director may lose or gain money as an immediate result of the Board’s action.  An indirect conflict occurs when another entity in which a director has a “material financial interest” is a party to the transaction, or when another entity of which he is a director, officer, or trustee is a party to the transaction and the transaction is or should be considered by the Board.  For example, a director may own a thirty percent interest in a painting company the Association considers hiring, or the director might be vice president of a company to whom the Association might sell land.

Overcoming Conflicts of Interest

Many potential conflicts of interest can be overcome by disclosing the material facts of the conflict to the Board.  A transaction is not voidable merely because of the conflict of interest if the board knew or the director disclosed to the board the material facts of the transaction and the director’s interest and the board authorized, approved, or ratified the transaction.  Likewise, if members vote on the transaction, they can overcome the director’s conflict if the material facts and the director’s interest were disclosed or known to the members entitled to vote and they authorized, approved, or ratified the transaction.  Finally, a transaction is not voidable solely because of a director’s interest if the transaction was fair to the Association.  In summary, there are three situations in which a director’s conflict of interest is not fatal to a transaction: (1) the board was made aware of the material facts of the transaction and the director’s interest and authorized, approved, or ratified the transaction; (2) the members were made aware of the material facts and the director’s interest and authorized, approved, or ratified the transaction; and (3) the transaction was fair to the Association. 

The Board can authorize, approve, or ratify the conflict of interest transaction with an affirmative vote of a majority of the disinterested directors (those who have no direct or indirect interest in the transaction).  In this case, a quorum will be considered present if a majority of the disinterested directors vote to authorize, approve, or ratify the transaction.  The presence of, or a vote cast by, a director with a direct or indirect interest in the transaction does not affect the validity of any action taken pursuant to that vote if the transaction is otherwise authorized, approved, or ratified in this manner.

HOA Board Member Actions

A Board member who has a direct or indirect conflict of interest should recuse himself from the discussion and vote on the transaction.  The North Carolina General Statutes do not provide a system for forcing an interested Board Member from recusing himself from a vote in which he has a conflict.  If a Board Member refuses to recuse himself from a vote in which he has a direct conflict of interest, it is advisable to remove him from the Board of Directors.  North Carolina law allows the Association to impose additional requirements on conflict of interest transactions, either through its Articles of Incorporation or Bylaws or by a resolution of the Board.  If the Home Owners Association does not already have a conflict of interest policy, the directors would be wise to cause the Association to adopt one.  


Political Sign Display

In the building to a political election, neighbors may differ on whether they wish to support their preferred candidate with a sign in their yard, or to never see a certain candidate’s name again.  For community associations in North Carolina, the association’s declaration, the North Carolina General Statutes, and local ordinances provide the guidelines for how and when political signs may be displayed within a neighborhood.

A community association’s ability to regulate political signs is governed by North Carolina General Statutes Section 47F-3-121, which applies to all community associations regardless of when formed.  For restrictions registered prior to October 1, 2005, the statute provides that no restriction on the use of land shall be construed to “regulate or prohibit the indoor or outdoor display of political signs by an association member on property owned exclusively by that member” unless the restriction specifically uses the term “political signs.”  For restrictions registered on or after October 1, 2005, the restriction “shall be written on the first page of the instrument or conveyance in print that is in boldface type, capital letters, and no smaller than the largest print used elsewhere in the instrument or conveyance . . .” and must specifically state ‘THIS DOCUMENT REGULATES OR PROHIBITS THE DISPLAY OF POLITICAL SIGNS’”

Even when the declaration does not explicitly prohibit the display of political signs, the Association may prohibit or regulate the display of political signs earlier than forty-five (45) days before the day of the election and later than seven (7) days after an election day. The Association’s regulation cannot be more restrictive than any applicable city, town, or county ordinance that regulates the size and number of political signs on residential property. 

Wilmington Law and Politcal Signs

The applicable section of the New Hanover County Ordinances, Article IX Section 93(4), provides that non-illuminated political signs not exceeding 12 square feet in area may be placed on private property.  Such signs must be removed no later than 30 days after the applicable election or referendum.  Likewise, the applicable City of Wilmington ordinance, found in Section 18-576, sets out that political signs, which are non-illuminated and do not exceed twelve square feet in sign area, are permitted in all districts, and must be removed within thirty days after the applicable election.   

Contact an attorney if you are uncertain whether your Declaration complies with N.C.G.S. § 47F-3-121, or if you have questions about the extent to which your community association can regulate the display of political signs.  


Continuing Care Retirement Communities (CCRC’s), also known as Life Care Centers, are becoming more and more popular as a housing option for seniors. Carolina Bay at Autumn Hall, Brightmore of Wilmington, and Plantation Village are all CCRC’s located here in Wilmington.  Each facility offers the promise of an active, social, and stimulating lifestyle with all of the necessary medical care and the security of knowing that you will not have to move again as your level of care increases.

A properly qualified and experienced Elder Law Attorney may be an important part of the admissions process. A CCRC contract is extremely complex and the decision to move from your home into a CCRC is not only a difficult and important life choice, it is also a difficult and important financial choice. And as with any important financial relationship, your role as a resident and the CCRC is controlled by a contract. A qualified and experienced Elder Law Attorney may be a very important part of the team when the decision is made to move to a CCRC.  The Elder Law Attorney can assist you in contract negotiations and can explain the contract so you understand your rights and responsibilities.  Most importantly, a good Elder Law attorney can help make sure that the contract meets your needs and North Carolina statutory requirements.

CCRC’s, often in exchange for a significant fee,  may provide a full spectrum of care – from independent living, to assisted living, to skilled nursing care.  Initially the CCRC may accept only people that are healthy and are able to live independently. However, once you are admitted, you are assured that you will have care that meets your needs for the rest of your life and that you will not have to move again.  A good Elder Law Attorney can help you understand who decides when you move to the next level of care (from independent living to assisted living, for example) and what criteria is used.  You should ask the CCRC what happens if your spouse requires a different level of care than you do.  Does the contract allow you to stay with your spouse or must you live separately in different levels of care?  


Here are some other very important questions that a qualified elder law attorney can answer after reviewing a CCRC contract:

  1. What are the payment terms of the contract? CCRC’s offer different types of contracts (from a one payment for all services model to fee for service model to a rental agreement) and each one has pluses and minuses and different payment terms.

  2. Who owns the living space?  You, the CCRC, or someone else?


  3. As mentioned above, how are decisions made to move residents from one level of care to the next? Often one spouse may require a different level of care than another.  Does this mean one spouse must continue to reside in independent living while another spouse moves to the assisted level of care?


  4. When does a resident need to supplement services with paid care?


  5. What happens if a resident runs out of money?


  6. What happens if the CCRC runs out of money/goes bankrupt?


  7. Is the CCRC Medicare/Medicaid certified?


  8. Is long-term care insurance still required when you move into a CCRC?


  9. What is the financial status of the CCRC?


  10. What happens to your funds held by the CCRC when you pass away?


  11. How does a resident qualify for a refund?


  12. Is there an arbitration provision in the CCRC contract?

  13. If you decide to move out, what does the CCRC contract require?


Another good resource for CCRC’s is CARF International. CARF is one of the few organizations that accredit CCRC's.  Likewise, in North Carolina the Department of Insurance puts out a reference guide to CCRC’s that is very useful.

Making the decision to move into a CCRC involves a lengthy contract, a significant amount of research, and a hefty financial commitment. A good Elder Law Attorney can help you ask the right questions and get the right answers before making the decision to move into a CCRC.

The New York Times recently published an article concerning financial abuse of the elderly.  The article provides several disturbing scenarios concerning financial exploitation of the elderly and points out warning signs that are often missed. Links from the Consumer Financial Protection Bureau to help spot financial exploitation before it happens are also included in the article.

What the article does not include, however, is whether or not concerned relatives should consult with an attorney regarding financial exploitation of an elderly family member. A qualified Elder Law Attorney may assist in helping to prevent financial exploitation before it happens.  A good Elder Law Attorney may also aid in recovery of funds in the event financial exploitation has occurred.

It is self-evident that the best way to avoid financial exploitation is to stop it before it starts. To that end, consulting with a qualified Elder Law Attorney can be valuable and cost effective. A good Elder Law Attorney can discuss strategies to avoid financial exploitation (Trusts, correct titling of bank accounts and brokerage accounts, proper role and use of a power of attorney, correct disclosures, etc.) and can also properly advise parents and children regarding their roles, rights, and responsibilities. For example, preventing financial exploitation may be as simple as explaining the nature of a fiduciary relationship to a son or daughter and making sure the child understands they must act in their parent’s best interest instead of their own interest.   A son holding a Power of Attorney for a mother generally cannot use the mother’s assets to pay for his expenses.  A discussion with family members on the issue of separate fiduciary accounts to ensure that a parent’s funds are not used for a child’s expenses may also be helpful.

Likewise, a fiduciary must prove they have done their job correctly (this is a shift from the usual burden of proof that requires a plaintiff to show that the defendant has done something wrong). This also
means that a fiduciary must keep accurate records and must always act for the benefit of the party whose funds they are managing. Meeting with an attorney and having the attorney advise all of the family
members of each party’s proper role, including the correct recordkeeping and appropriate disclosures, may prevent financial exploitation before it happens. In other words, an ounce of prevention is worth a pound of cure.

Similarly, an attorney may give timely advice regarding filing a civil lawsuit in order to recover assets that have been taken. Too often, someone who has been exploited moves too slowly or too late and may not be able to recover any of their assets in a lawsuit.. A fiduciary (someone who has a power of attorney or a Trustee) exploiting the older person may have spent all of the money that they have taken and it may appear impossible to recover any assets. Consulting with an attorney may increase the chances of not only getting a judgment against a thieving fiduciary or caregiver, but also collecting on that judgment. Bank accounts can be frozen, real property may be liened, and sums may be recovered if the attorney is able to move quickly once the exploitation has been discovered.

Financial exploitation is becoming more and more prevalent as America ages. Consulting with an attorney may not only prevent the exploitation before it occurs, but may also increase the chances of recovery in the event an elderly parent has been exploited by a fiduciary, power of attorney, caregiver, family member, trustee, or predator.

Just over one in every eight Americans age 40 to 60 is both raising a child and caring for a parent. It is estimated that between 7,000,000 to 10,000,000 adults are caring for their aging parents from a long distance. The Sandwich Generation is the generation of adults caring for both a child and an aging parent.

Carol Abaya categorizes the different scenarios involved in being a part of the sandwich generation: (1) Traditional: those sandwiched between the aging parents who need care and/or help and their own children; (2) Club sandwich: those in their 50s or 60s sandwiched between aging parents, adult children and grandchildren, or those in their 30s and 40s, with young children, aging parents and grandparents; and (3) Open faced: anyone else involved in eldercare.

However you are sandwiched, when your parents were younger they probably functioned well enough as a team and did not need your assistance to live their lives.  But as your parents get older and cope with the death of a spouse, (statistics indicate it is usually the husband who passes away first) your relationship changes and living alone may be very traumatic for your mom, the surviving wife.  She not only has lost a lifelong partner, but she also must develop new routines around the house and a different way of interacting with family and friends.  A son or daughter’s visit to a recently widowed parent, particularly when the son or daughter has their own children, can be very difficult.  Below is a checklist to guide you and your newly solo Mom (or Dad) to determine if assistance may be needed to assist Mom who is now living alone:

1. Is it safe for your aging parent to drive? Take a ride with your Mom or Dad and let them drive. Can they drive safely?  Can they find their way to the new restaurant that they heard about from their friends?  Does the car have any unexplained dents or scratches?  This is a very delicate and difficult subject because the loss of the ability to drive is associated with a loss of independence. If you feel that it is no longer safe for your parent to drive and you believe your Mom or Dad will resent you for even introducing the subject, have their physician discuss the issue. Their Doctor should be able to give medical reasons why it is unsafe for them to continue driving.  Discuss with your Mom or Dad  alternative transportation arrangements that may be used if Mom or Dad stop driving.

2. Is the mail piling up? If the mail is piling up, then it may be because your Mom can no longer understand what the mail says or how to pay the bills.  In addition to the obvious risk of the lights being turned off, there is also the risk of financial exploitation by third parties.  Gently review the financial records with your aging parent not by asking them if they need help, but by asking them to show you what bills need to be paid and how they should be paid in the event something does happen and they require assistance.  Remember that Mom has a right to refuse your assistance and access to her bills and financial information. Explain to Mom or Dad that you only wish to discuss their bills and finances to have a better understanding if you ever need to assist in the future.

3. Are prescriptions being taken as needed and in the correct dose? Check medications to see how often they are being refilled.  Ask your Mom what medication she takes, how often, and why? Make sure to confirm with her Doctor that she has answered appropriately. Note you will need your parent’s permission or a Health Care Power of Attorney to authorize the release of medical information to you.

4. Is the house being maintained? Is the house set up to prevent falls?  Is a discolored ceiling a sign of a water leak?  Is a formerly spotless house now messy?  Has the grass been cut?  Are carpets loose or are their other tripping hazards in the home?  Lack of maintenance may indicate a lack of ability to properly maintain the home.  Falls are a significant risk for the elderly and you should carefully examine the property for any tripping hazards.

5. Is your Mom eating right? Ask your parent about meals and what he or she cooks. Is the food in the refrigerator stale or expired?  Is it full of TV dinners or repeats of the same item?  If it is, then your Mom may not be eating right or forgetting what she has already purchased.  Meals may need to be delivered to the home or you may need to make other arrangements for appropriate nutrition.

We are “sandwiched” between our own lives and children and wanting what is best for Mom or Dad. Using this checklist should help indicate when in home assistance may be required if Mom wishes to continue to live in her home or, in the alternative, that living at home may not be the best arrangement.

Remember that as long as Mom has the capacity to make her own decisions, she may continue to make her own decisions regarding her finances and health care without consulting with family or friends. If you are concerned about Mom’s ability to make her own decisions, it may be helpful to speak with qualified Elder Law attorneys who may be able to assist your Mom and her family meet the changing circumstances.


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