June 28, 2019
It happens all the time. A husband or wife dies and within a few months the surviving spouse takes up with a new girlfriend or boyfriend. A year goes by and they are suddenly living together. After a few trips to a lawyer’s office, the new friend (we’ll call him Larry) is now named as your still grieving wife’s power of attorney, health care proxy and trustee. The couple insists they will never marry, but lo and behold a few years later, they are indeed married.
Often, this is accompanied by Larry slowly taking control of your surviving spouse’s life. Your adult children may be busy with their own lives, and it is easier to just let Larry take mom to her doctor’s appointment, shopping and out to dinner. After all, he provides her companionship. The next thing your children know, Larry and their mother are inseparable. When your children do want to spend time with mom, Larry is always present. Eventually, they only see her for limited periods of time at holidays and always under Larry’s watchful eye.
There are six steps you can take to help prevent this scenario from happening to your own spouse.
Consider an independent trustee for your trusts. While you want your trust to benefit your surviving spouse, you also need to make sure someone is overseeing the assets and their distribution. You want to prevent the assets from going to Larry. As people age, their judgments about finances may become impaired or their health needs may require assistance with tasks they could previously do themselves. Bill paying can become a monumental task for elders. An independent trustee can help your surviving spouse with these tasks so that Larry does not need to.
Limit your surviving spouse’s access to the trust assets . Your surviving spouse may be making great decisions now, but over time she may start to listen to Larry more and more. After all, he may be the one taking care of and spending time with her. Shouldn’t he be able to have a new car to drive her around in? Or, wouldn’t their lives be easier if he could pay off his mortgage? If he did not work, he would have more time to spend with her. You may want to make sure your surviving spouse cannot take the assets and divert them from your intended heirs (usually your children and grandchildren) in favor of Larry and his kids.
Safeguard assets in your surviving spouse’s name. If your surviving spouse has assets in her name alone, encourage her to transfer them to the trust now and name a trust protector or a co-trustee whom your wife’s advisors can alert if there are signs of abuse or undue influence.
Surround yourself and your spouse with a team of advisors who will be on the lookout for any type of undue influence. Family members will often be alerted by a client’s financial advisors because they see unusual activity happening with the bank accounts.
Make sure your spouse has a support group. This could be family members and friends. Encourage her to get involved with activities so that her calendar will be filled after you are gone and she has friends to spend time with. Consider joining a country club. Let her choose which one.
If your kids or her favorite sister are far away, consider a move so that she can be closer to them. Or, purchase a small condo so that she can visit and be near them whenever she would like. It is nice when grandma visits, but it is even nicer when she has a condo down the street.
When all else fails, one of your children may need to bring court action against Larry or seek to be appointed guardian or conservator of your surviving spouse. That is an extreme step, and it may drive a wedge between your children and their mother. In many instances, the children learn to put up with Larry while limiting his control. You can help them by limiting his access to your family’s assets.