Episode 2: What the hell is power of attorney and why do you need it? With Rachel Schromen of Schromen Law, LLC.

“Are you the Power of Attorney?” When shit goes down and a health crisis happens with our aging parents, this is one of the first questions we are asked. But what the hell is a power of attorney and why do we need it?

In this episode, Eliesa Johnson and Robyn Frank are joined by (the fantastic) Rachel Schromen of Schromen Law, LLC and we discuss it all. Rachel’s approach to guiding her clients through Estate Planning and Elder Law is truly remarkable and we are so grateful for her advice and real-life-tips that you can put into action to help you today!

Side note: We learned Power of Attorney isn’t just for aging parents, it’s important for ALL of us. Listen in to learn more! 

Takeaways

• Why Power of Attorney and Health Care Directives are important for ALL of us, NOW! Including your freshly turned 18 year old.  
• What’s valuable about hiring an attorney to help with Estate Planning and Elder Law. 
• How to interview attorneys to find the right personality and fit for your family. 
• When to strategically schedule legal meetings + important appointments to allow everyone to retain the information best. 
• How siblings should play to each other’s strengths to divide and conquer responsibilities.
• What’s the difference between Power of Attorney and co-signer on your parent’s bank accounts, and which one is better.

Links and Resources:

**The following links are resources based in the state of Minnesota.**

Schromen Law, LLC - Learn more about Rachel’s practice and approach to Estate Planning and Elder Law. We know we’ll be making an appointment!

10 Questions to ask your Estate Planning Attorney - A very cool document provided by Schromen Law, LLC that walks you through questions to ask while calling around for Estate Planning and Elder Law. 

State of Minnesota Power of Attorney Forms - If you’re interested in a DIY approach. A word of caution - these forms can seem deceivingly simple. We might recommend hiring a pro to help guide you. 

State of Minnesota Health Care Directive Form - If you’re interested in a DIY approach. A word of caution - these forms can seem deceivingly simple. We might recommend hiring a pro to help guide you. 

Low Income Resources:

Mid Minnesota Legal Aid

LawHelpMN.Org

Do you have a hot tip for legal advice to share? Good resources beyond our state of Minnesota? Maybe you have a hilarious Laugh or Cry moment you want to contribute to our show. We want to hear from you ✨

Find us on Instagram @ thesandwichgenerationpod

Join our community on Substack

Email us: hello@thesandwichgenerationpod.com

Visit our Website: thesandwichgenerationpod.com 

Chapters

00:00 Meet Rachel Schromen: The Expert in Elder Law

01:55 Rachel's Personal Journey with Grief and Law

06:48 What the HELL is Power of Attorney?

19:10 Segment: To Laugh or Cry

20:36 Should I DIY the paperwork or hire a pro?

28:22 Mental Capacity for the l

Transcript

Eliesa Johnson (00:00)
Welcome to the Sandwich Generation pod, the show for anyone caught between raising kids and caring for aging parents. We're your hosts. I'm Robyn. And I'm Eliesa. And today we're tackling one of those topics that no one wants to talk about until it's too late. We're talking about aging parents, hard conversations, and the legal stuff

We are joined today by Rachel Schromen of Schromen Law LLC located in St. Paul, Minnesota. Rachel is an estate planning and elder law attorney and Schromen Law has been voted Minnesota's best estate law firm by readers of the Star Tribune annually from 2021 to 2024. And I think that's awesome because that is something that like the people vote for.

The people, the people love her. Apart from her law practice, Rachel is a hospice volunteer and end of life doula. And she is here to walk us through the stuff we had wished we had known earlier in our journey. So let's do it.

Eliesa Johnson (00:53)
Welcome back. Welcome back. We are so glad you're here, you guys. We are so excited for this episode today. Before we get going, we wanted to mention a segment that we added to the end of this episode called Real Talk. Yeah, we wanted to sort of include what it was actually like for me and Eliesa to go through like the legal stuff, We would love for you to stay tuned ⁓ and listen to that. So without further adieu...

Here's Rachel from Schromen Law

Eliesa Johnson (01:20)
So we are so lucky today to be joined by Rachel Schromen.

you're

the perfect guest for this podcast. So thank you so much for being here. before we jump into the legal side of things, I feel so lucky to have you on like Eliesa was saying, because you have such ⁓ an interesting textured background.

And we talked to a little bit before you came on and we were able to sort of hear about your personal story. And because we're getting pretty personal here on this podcast, can you share just a little bit about, your story and how you connect with what it is that you do from a personal standpoint?

Rachel Schromen (01:55)
it's interesting because my personal story really developed alongside my law practice.

When my dad passed away in 2019. I was a practicing estate planning attorney. I was volunteering with a therapy dog at that time in hospice and I was fortunate enough to be with my dad when he passed away and I walked away from that experience.

Eliesa Johnson (02:04)
you

Rachel Schromen (02:21)
feeling like I was just horrendously underprepared for what we went through. And that made me really, really angry because I thought, you know, I was young when my dad passed away. But for someone my age, I had a lot more experience with aging and death and dying. And when I was with my dad, when he was passing, there were so many things that happened that

were surprising to me, were alarming to me, that took me out of the moment because I needed to process what was happening and kind of self-regulate. And it was very, it was kind of like death and dying 101. And I say that as in this, know, in hindsight, I learned this is what happens when a human body, a human person is going through the end of life transition. And I was very frustrated that I didn't.

Eliesa Johnson (03:00)
Yeah.

Rachel Schromen (03:14)
know that going into it. I felt like it robbed me of the ability to be present with him. Grieving was very hard. I struggled with it and I don't know, you know, that there's any sort of preparation that can prepare you for it. And we all do things imperfectly the first time. But it was really after that experience where I did the end of life doula training, I leaned into the grief world and I started bringing that into the practice of law.

Eliesa Johnson (03:19)
to

Rachel Schromen (03:40)
⁓ And boy, you want to talk about an area of law that's just riddled with human emotion and family dynamic and grief and fear and all those things that come up. It's estate planning and elder law.

Eliesa Johnson (03:52)
Yeah.

Let's just get down to it.

Let's say something goes wrong and you know, there's like a medical scare or, um, you know, someone falls or there's, there's an emergency that happens. What's the first thing they should know about? What kind of lawyer are they going to look for? What are some of the basic legal documents they might need to have in place? Just start like, talk to us like we're five or maybe six.

Rachel Schromen (04:08)
you

Okay.

Okay. what I would say is in this specific situation that we're talking about where we're kind of isolating the hypothetical to elder parents or aging parents, estate planning and or elder law attorneys are really, really good place to start. Now, estate planning attorneys, they're who do wills, trusts, healthcare directives, powers of attorney, which we'll talk about a little bit.

Eliesa Johnson (04:19)
You

Rachel Schromen (04:43)
Elder law attorneys also are going to provide support around long-term care planning, things kind of more leading up to that moment to the point of death where estate planners, maybe the focus is a little more after death.

Eliesa Johnson (05:00)
So do you think elder law attorneys are a little bit better of a choice if you're in this predicament with aging parents? That's kind of like gets you to the heart of it faster.

Rachel Schromen (05:07)
They

can be, yes. I have colleagues that are estate planning attorneys that don't do elder law that maybe they did estate planning for a family, but the family comes to us to do the medical assistance planning piece.

Eliesa Johnson (05:21)
So yeah, like we went to my parents estate planning. That's where we ended up. So that can happen too, right? people might end up using their parents' attorney that did their estate.

Rachel Schromen (05:24)
huh.

totally.

And that can be a good place to start. And so, you when you offer that question of, well, I don't know if we need an attorney. What I would say in response is a lot of law firms will do a complimentary initial consultation, whether it's 30 minutes or a phone call or a full hour.

I have had plenty of clients come in where they need some guidance, they need some high level questions answered, but maybe they don't need a whole lot past that. We identify that and we tell them and help them along their way, right? And then some people, it's very simple things that are needed and some it's more of a project. But an attorney is always going to explain to you, well, this is what we recommend you get. This is what it costs. This is what the process looks like.

Eliesa Johnson (06:03)
Yep.

Rachel Schromen (06:21)
And you can ask, well, why? What is the benefit from that? And you make that decision. I think there can be some fear in reaching out to attorneys that all you're getting is information to then make a decision whether to hire or not.

Eliesa Johnson (06:32)
Well.

I know for me and my sister, we just went back and forth because we're like, what's it gonna cost so much to reach out to a lawyer? And how do we know that this lawyer is gonna know the answers? So, you just you getting a little bit more specific is super helpful

What is power of attorney and why is it such a huge deal? If you can just break that down. A lot of times people say POA, that's power of attorney people POA. They love using their jargon around the hospitals. So yeah, break it down. Yeah.

Rachel Schromen (06:49)
Yep.

Huh? Cute.

That's the coolest thing. Yeah.

So power of attorney. Now, This is the document where someone can name who has the legal authority to do things like manage finances for them. We call it a power of attorney in Minnesota. Other states might use different names for this. ⁓

Eliesa Johnson (07:20)
like what?

Rachel Schromen (07:21)
Well, you'll hear durable power of attorney. Sometimes the word like the actual word financial will be in the name of it. ⁓ But I just want to clarify that because for example, for health care decisions, we call it a health care directive in Minnesota, but other states call it a health care proxy, a power of attorney for medical decisions. Anyone listening from outside Minnesota, you might have a different.

Eliesa Johnson (07:42)
⁓ I see. Now I'm thinking about

all the John Grisham movies I watched where they're saying like Power of Attorney. Yes. And I bet I think those confused me. OK, thank you for saying that because I always thought Power of Attorney had to do with both medical and financial. So OK, in some states, yes. OK, not in Minnesota. OK, got it.

Rachel Schromen (07:56)
In some states, But in Minnesota,

power of attorney is a legal document where you're saying this person can step into my shoes for financial or some legal type things to manage things for me. And.

Eliesa Johnson (08:12)
So like something like bank accounts

or I know like for us, we've needed it for decisions even at my parents assisted living place

Rachel Schromen (08:22)
That's going to be the power of attorney. And it's active. A lot of times people will say, well, I know I need a durable power of attorney. Durable is important. I don't know why, but I know durable is important. All that means is that it's going to stay active if the person's incapacitated. So people get very freaked out by this and they go, whoa.

Eliesa Johnson (08:34)
you

okay.

Rachel Schromen (08:44)
wait a minute, I only want this to be in place if I'm incapacitated. And then I have a conversation with them about, well, let's talk about capacity versus incapacity and how often is it zero to 60 in a moment, you know?

Eliesa Johnson (08:59)
So you're talking about

if an older person let's say, is thinking down the line for their own life, they might come in to talk to you about power of attorney. So that's kind of what you're saying is they're talking about what they're deciding. But we're also talking about if a child comes in and is asking about power of attorney. Yes.

Rachel Schromen (09:16)
Yes,

I have parents that are paying for their 18 year olds to get these documents in place. Like the 18 year old has to hire me to do the document, right? But

it's active when it's signed. So I have a power of attorney form naming who can manage finances for me. If I'm in a car accident and I'm in the hospital with two broken legs and two broken arms, but my mental capacity is perfectly fine, I can still call my person and have them come grab that and go manage some banking for me. My stepmom last summer was at Mayo Clinic for like three months. Mental capacity was totally fine, but she was super, super sick and she was stuck in Rochester.

Well, her brother was her POA. He could drive to Iowa, open her mail, write the checks, you know, do the stuff for her and then go visit her at the hospital. He wasn't showing up with a stack of mail because no one had legal authority or financial authority to do anything. So there's super important documents to have in place. once a person turns 18, no one has the inherent authority to do that. When I, I'm no longer married, but when I was married, I had a separate bank account.

If I was in a coma, my husband's not accessing that bank account. The bank would not let him. Without. Yep. Yeah.

Eliesa Johnson (10:30)
Unless you somehow had power of attorney for you. So

basically the takeaway here is that we should all have power of attorney for each other, whether or not we have aging parents or not. Right. if you're in a position where your parents are still in relatively good health, this would be a really great time to take your parents in while everyone is still good sound of mind and say,

Rachel Schromen (10:49)
Absolutely.

Thank

Eliesa Johnson (10:55)
let's get this document signed that said, God forbid if something happens, someone is managing your finances.

Rachel Schromen (11:01)
Because if they don't have capacity or if something happens and they lose capacity to sign, it's not getting signed. And then it turns into you're needing to get like court appointed guardianship or conservatorship.

Eliesa Johnson (11:14)
Wow, which is really hard to get. That it is. It's really stressful too. Yes. I know someone very close to me who has had to do that. Their dad became incapacitated overnight basically. And they had to get instant legal guardianship through the courts. It was very stressful, but

Rachel Schromen (11:16)
And it's stressful. Yes, exactly.

Eliesa Johnson (11:33)
That's what happens if you don't have this in place. Is that correct? If there is like an emergency medical situation, Which is a much more rigorous process, right?

Rachel Schromen (11:42)
It's expensive. It's stressful. When I do seminars, I jokingly say I don't like being in a courtroom when I'm paid to be there. Like I don't take court work because it's, it's just inherently stressful.

Eliesa Johnson (11:50)
Yeah. Yeah.

I know people won't even get on the phone with you that like when we were talking in the long-term health insurance, people wouldn't even get on the phone with us unless we were POA, but it is a, it's a door opener when you say you have it and you can prove you have it. Cause then everyone's like, I'll talk to you. Great. There have been some times where I've been like, well I'm their POA. go to the club, I'm like, I'm power of attorney for somebody.

Rachel Schromen (11:57)
I hope.

Yes. Yeah.

Yeah.

Eliesa Johnson (12:18)
You better let me in. just, put that out there right away. So they're just like, ⁓ okay, got it. like, okay, I guess I'm not going to fuck with you today. It's a credential.

Rachel Schromen (12:27)
I

Eliesa Johnson (12:30)
Okay, so let's say you have a difficult parent, which I feel like if you're driving right now listening to this, you're like, she's talking about me. Well, I might be talking about my own dad, Dan, who we did get him to the office to talk about power of attorney. We got him in the chair, but

Rachel Schromen (12:36)
Thank

Eliesa Johnson (12:45)
he leans back and he's like, not going to sign it. And he's like, but I want to know that I can eat Chinese every Wednesday and no one's going to take that away from me. So he really thought that like the minute he signed Power of Attorney that I literally had control over his Chinese food intake or whatever, like his decisions he was making about like buying stuff on, you know, TV late at night.

Rachel Schromen (12:58)
Yeah.

Eliesa Johnson (13:06)
So can you explain that? Like if you have a parent who's really afraid to sign power of attorney, are they signing away their rights or how do we calm their fears and get those dads in the chair and signing?

Rachel Schromen (13:19)
Well, the first thing which you kind of already identified is first and foremost, taking a step back, acknowledging that there's fear and having some empathy around it because it can be very, very frustrating. And I do work with a lot of children of parents and I've been that child where I'm like, why can't you just get these signed? What is the deal?

But that transition of losing autonomy and needing more help and being at end of life is incredibly intense. It's a huge, huge change, huge process. And our parents...

I look at the resources we have and even the fact we're having this conversation, we're not having these conversations.

Eliesa Johnson (14:02)
Yeah, exactly.

Rachel Schromen (14:03)
And so it's hard enough with all the resources and tools we have to move some of these emotions through our body and address some of this. So first and foremost, have some empathy and acknowledge like, yeah, this is probably really fricking scary. And this is a big transition and a big change and can be a really hard pill to swallow. As an attorney, what I do when these conversations come up and even when children aren't present, clients I'm meeting with, they'll be like, this seems like a lot of power. I don't feel good about it. I say, okay, what are you most

concerned about and so it's identifying what is the concern. If the concern is I'm scared I won't get Chinese food on Wednesdays. I'm like awesome that's the easiest concern I've ever had to like deal with. you signing this POA is not going to impact your ability to order Chinese. Also you can revoke it while you still have capacity. You can change it. You can decide what

they have authority over and what they don't. You can require that they send an accounting once a month to their sibling. So their siblings watch it and making sure there's no shenanigans. You can also say they're not allowed to gift money to themselves if you're worried about them skimming off the top. Like there's protections. On top of it, totally.

Eliesa Johnson (15:04)
Okay.

Interesting. Okay. So these are good things for people to talk about.

Like, okay, mom and dad, if you're worried about this, this is something that we can actually state in the document or we can put in place. So I would imagine that would be really important around financial. When there might be a lot of money at stake and there's several siblings and maybe one sibling has power of attorney to be able to put.

parameters around that so that everyone feels safe about it. That's a really interesting thing to know.

Rachel Schromen (15:38)
and

like communication requirements. I've had clients before, elder individuals that say, well, what if this happens, what do I do? And I tell them, I say, you call me, I'm your attorney. So if something's happening that they don't like or something's happening that they perceive as abuse or mismanagement of funds.

I say, you can contact me if someone's acting as an attorney, in fact, they have requirements, they are required to manage the assets in the best interest of that parent. It's not just here, do what you want.

and I can't have any say or do anything. And that's the big fear. And so I think when a parent is able to sit down with an attorney and say, is what I don't want, this is what I do want, and that attorney can give reality to the situation and affirm to them that they're not giving up autonomy, the flip side of it, if I have a power of attorney that I can revoke and I can change, like those powers are limited. If I don't have one and I go under a guardianship, I'm essentially 17 years old again.

Eliesa Johnson (16:45)
Right. Yep.

Rachel Schromen (16:45)
So you

give up heck of a lot more through that process. yeah, yes.

Eliesa Johnson (16:50)
So it's better to do it earlier. Yeah. By far and away.

I just love the tip of saying if your parent is reluctant to go in to say to your parent, listen, let's talk about everything you're worried about to the attorney because you might have more rights than you realize that we can put in a document.

Rachel Schromen (17:04)
Yeah.

Eliesa Johnson (17:04)
A question came up in our conversation. Can you choose anyone to be your power of attorney or does it have to be a family member? Good question. Okay. And I was going to ask when it comes to siblings, because I think a lot of people have this question too. Do all siblings get power of attorney? if all siblings do have it, does that mean they all have equal power?

Rachel Schromen (17:12)
You can choose any one. Yep.

Eliesa Johnson (17:25)
Can you talk a little bit about that mess?

Rachel Schromen (17:25)
Yeah,

there's a lot of options. So a parent can choose any child or any sibling that they want. It does not have to be birth order. It doesn't have to be all the siblings. And they don't all have to act at the same time. And so every family is different in terms of dynamic,

And I say play up to strengths and reflect the dynamic accurately. My younger brother and I we're both competent to make medical decisions and to manage financials. However, we respond to stress differently. When I'm stressed, I go into

hyper performance. I'm like, what needs to be done? And I'm kind of almost extra sharp. And my younger brother really shuts down and he takes time to really process it more emotionally and physically. It would almost be mean to name him in that role. It's not a dig at him. It's taking in the reality of his personality and the dynamic and everything.

In terms of naming siblings jointly, they can be named jointly and required to act together. So my brother and I could be named and we both have to sign every check. We both have to say yes before things happen, or it can be that we act independently of each other where he can do something one day and I can do something the other day. And depending what is recommended or appropriate is incredibly fact specific to the family.

Eliesa Johnson (18:49)
That's what me and my sister did.

Rachel Schromen (18:59)
So that's something that people should be really talking through the options and talking through the dynamic and working through it with their attorney to make decisions that are right for them.

Eliesa Johnson (19:08)
That's great advice.

Eliesa Johnson (19:10)
And now it's time for a segment that we like to call, To Laugh or Cry.

Eliesa Johnson (19:15)
So we have a segment here on the Sandwich Generation pod called To Laugh or Cry. And in fairness, My sister and I always say it because we're always like, well, if we can't cry in this moment, we should at least laugh through it. Absolutely. Cause otherwise we would never get out of bed because some of this shit is sad that happens to us in this moment. humor makes it all possible. Right? Yeah.

This story is from one of our listeners and

Let's just say it involves an extra special shopping trip with our parent who has dementia or Alzheimer's. I took my mom to Kohl's to do some Christmas shopping for the grandkids. And when we got to checkout, she was digging through her pockets of her purse and setting everything down onto the counter as she looked for a wallet which I've seen my mom do that. I always wanted to be able to do things as independently as possible until she gets frustrated. So I let her keep digging until she pulled out a literal butcher knife.

out of the side of her pocket. She likes to pack her belongings on a daily basis without rhyme or reason. The look of horror on the cashier's face as I quickly grabbed it and put it back before handing her the credit card was hilarious. Amazing. And that is this week's To Laugh or Cry. That's a laugh for sure. That's a laugh. Even though you're horrified, that's a laugh.

Eliesa Johnson (20:32)
And now, back to the legal stuff.

Eliesa Johnson (20:36)
Now, when it comes to getting power of attorney paperwork filed, I went on the internet, I printed it out, we filled it out, we got it notarized. Is that all you need to do? Or should you go to an attorney? I was just flying by the seat of my pants. good to know you can print it off the internet. And that's worked for me. I don't know if that was, you know, the best way to do that, though. We do what we can do.

Rachel Schromen (20:53)
Yeah.

I mean, that can depend. there's a number of documents that are made available through like mncourts.gov or different websites. A statutory short form power of attorney is gonna be one of them. You usually can it comes to whether to do it yourself or hire an attorney,

that again is very like fact specific. I have a lot of clients that hire me that say we've had the forms sitting and we're just not doing them. So there's a big element of that, right? Even for me, when I update my documents, I'll, I have to put it on the calendar for my employees to witness and notarize updates to hold myself accountable or I don't.

Eliesa Johnson (21:30)
Okay.

Great.

Rachel Schromen (21:43)
The other word of caution I will say about these forms is they can be deceivingly simple looking and the power of attorney, especially a small error can lead to it not being acknowledged at all. I have had people call me where the power of attorney form isn't being recognized because a certain page wasn't initialed where it was supposed to be initialed. And when I was a new practicing attorney, I remember I did my first estate plan.

Eliesa Johnson (22:03)
⁓ yeah, that's happened to me.

Rachel Schromen (22:10)
basic will power attorney health care directive. And I finished it and I went, gosh, that was easier than I thought. It seemed very, very simple. And then my mentor who was reviewing everything and helping me as a new attorney, those documents came back with a lot of red marks and it freaked me out. And I did walk away with this very healthy fear of how deceivingly simple forms can

it can seem. I mean, I went to law school for this. I'm not dumb. I'm a very good attorney. And you don't know what you don't know. And so what's very scary is if you have this document and you think, this will be good, we can use this. And the parent does become incapacitated. Now they can't sign anything and that document doesn't work.

Eliesa Johnson (22:40)
Right? Yeah, clearly. Well.

I've even been in a situation where if something wasn't dated and then suddenly it was invalid and if people want something to be invalid they will find any reason to make it. So I wanted to also back up to the care directive that you're talking about which I know is different from state to state.

Rachel Schromen (22:59)
⁓

Eliesa Johnson (23:07)
why don't we do care directive, which is, you want to talk about that a little bit and how it might differ from state to state.

Rachel Schromen (23:12)
Yeah,

the healthcare directive, other states have different names for it, like power of attorney for healthcare, healthcare proxy. This is the document where you can state who has the authority to make medical decisions for you if you cannot make your own. So different than the power of attorney where it's active, when you sign it, the healthcare directive is only going to be in effect if you cannot make your own medical decisions.

This will allow people to review medical records, request medical records, get specific medical information from the doctor, and then make that decision. a lot of times people will say, well, this and this happened and the doctor still listened to us or we had this emergency and they were still asking us what to do. They can defer to family. In emergency situations in an ER,

they're not going to stop and pause and look for a healthcare directive. They need to make decisions fast. Let's say that person goes from the ER to the ICU. That's when they're going to press pause and they're going to say who has legal authority and they're going to start looking for that.

So the healthcare directive, one gives that authority, but people can also go on to have conversations or indicate what type of decisions they want made, which can be a massive blessing.

Eliesa Johnson (24:24)
when my parents moved into assisted living, this is one of the documents you have to have in order to move in here because so many medical decisions obviously happen when you are in an assisted living community. But that was sort of the first time that

Rachel Schromen (24:31)
understand.

Eliesa Johnson (24:40)
we had really hard conversation about what do my parents actually want? You know, there's a DNR, is that another document or is that part of the healthcare directive, the do not resuscitate? Okay, that's what I thought. Yeah, but it led us to all these kind of hard conversations. I'm a person who's like very strong for my parents in the moment.

Rachel Schromen (24:45)
Yeah.

Yep, plus a K over.

separate document, but it's kind of that same umbrella.

Eliesa Johnson (25:05)
And then I leave that meeting or something and I'm like, that was a lot. And as I process it, I'm like, holy shit, we just had that conversation about their death wishes, Or like in an emergency situation, what I might need to carry out someday. And that's a lot to carry and that's a lot to hold. and also, I'm so happy that we...

Rachel Schromen (25:08)
Yeah.

Eliesa Johnson (25:27)
did have the conversation, just as hard as it is for me to hear it, it's hard for them to imagine, and think about, the scenarios that may or may not happen. since then,

we have needed it. I'm so glad we had that piece of paperwork in place. Like I just, had no idea what that was at the time. I had no idea what power of attorney was, let alone the difference between the medical and the financial difference of those two documents. So highly important. And if your parents are still young and healthy,

Rachel Schromen (25:49)
Mm-hmm.

Eliesa Johnson (25:59)
And I know for the care director for us, my mom is my dad's first decision maker and vice versa. And then it goes to me and my sister. So you can set it up where, you know, if my mom is still sound of mind, if my dad needs that decision, she's the first one. And then did you go over what happens if

There isn't a care directive in place. You kind of touched on that.

Rachel Schromen (26:21)
you can end up in a situation of needing to get a guardianship to make decisions.

Eliesa Johnson (26:26)
So basically, if there's an emergency situation and you don't have power of attorney, you don't have a healthcare directive, and you are incapacitated, all signs point to this emergency guardianship. Is that correct?

Rachel Schromen (26:41)
If there's no documents, yeah.

Eliesa Johnson (26:43)
Yeah. And then what happens if people don't have family around? Who is that emergency guardian?

Rachel Schromen (26:51)
Someone who steps up, someone appointed by the state.

Eliesa Johnson (26:55)
Yep.

And you kind of touched on guardianship again,

I mean, maybe it's extreme, maybe it's not. I don't know. Maybe there people that are, that are contending with this. Can you talk a little bit about it?

Rachel Schromen (27:03)
I mean, it's requesting that the court basically legally force a hand and appoint someone as a guardian over an adult. And the court is deeming that that adult can't make their own decisions or isn't able to act in their own best interest. And so it essentially like strips away their legal autonomy to do certain things.

Eliesa Johnson (27:26)
I just keep thinking about Britney I'm sorry, I had to say it. sorry. Yeah, Brittany. Yeah. Free Britney.

Rachel Schromen (27:28)
Totally, mean, that's an example. It's definitely

simple, And then if, and like Britney went through, if the person then regains capacity.

It has to be undone. They have to petition to have the guardianship or the conservatorship ended. There's accountings to the court that have to happen if you're under a court-ordered guardianship. ⁓ You can have to get court approval before you do certain things. It adds time, expense, complexity, and oversight that might...

not be necessary in that sometimes it is like guardianship can be a very good thing it's very good we have that system in the process it's good that it is complicated ⁓ but with some pretty relatively simple and inexpensive documents it can oftentimes be avoided.

Eliesa Johnson (28:22)
This is a good question, how much mental clarity does a parent need to legally give that consent? Sometimes when people are in a dementia Alzheimer's journey with their parent, the area is a little gray, or people are in and out. Do you have clients who are like, you know, it feels borderline, can my parent make this decision for themselves?

Rachel Schromen (28:35)
Mm-hmm.

Yeah, I

An attorney needs to make a determination if they have legal capacity to sign a document. And at a very kind of high level, what that looks like is they understand what they're signing. They understand what the document does, what powers they're giving away, and they understand who they're naming and that the documents are what they want. I have had clients where

they do better in the morning and then maybe their memory or things get a little trickier to navigate towards the end of the day, we make sure we meet in the morning. I've had clients where we schedule signing for one day and then they wake up and they're not having a great day, so we reschedule it. Every attorney I think can be a little different on where their comfort level lies. It's certainly the capacity standard if someone comes in with one of their children and they say,

I want to disinherit all of my other children except for this one. That's a very, very big change. There's going to be a very, very high emphasis on legal capacity testing if we're simply updating a document to bring it up to date or ⁓ it can be a little more relaxed,

Eliesa Johnson (29:50)
lovely to hear that you're kind of considering.

where people are at that day, and if it's a good day to proceed with changes or a good day to make decisions or not, because sometimes it feels like we have this meeting and we have to check this off our list and we have to get this done so we can get these other things done for you. And that's really great advice to make sure that everyone's in a good place to make these decisions on that day.

Let's say child has power of attorney and there is a situation where the parent is acting very irresponsibly with their money and the child is trying to protect them. Does the parent have the power?

The hierarchy of power, is it that the parent is like, I can do what I want, it's my money? Or is there an opportunity for the child power of attorney to step in and say, I have the power here?

Rachel Schromen (30:39)
That gets very, that's a very, very gray area and it can look very different. That's a hard one to answer. it's something that comes up.

haven't walked a lot of those cases through, but we get those phone calls and we will refer them to an attorney that does emergency guardianships or helps with contested cases where son's saying, no, mom's being irresponsible. I'm going to exercise my power of attorney to do this, this and this. And mom's saying, no, buzz off. I know what I'm doing. no, it's not. It's not because at the end of the day, our parents are allowed to do stupid things with their money.

Eliesa Johnson (31:06)
Okay, so it's not that simple. Okay.

Rachel Schromen (31:15)
They're allowed to be like ⁓ an adult has the autonomy to be irresponsible with their funds and to make reckless decisions. And it very much is this sliding scale of figuring out, well, when are we taking that power away? And as you can imagine, very fact specific and different.

Eliesa Johnson (31:33)
Okay, I'm glad I asked that.

For the medical assistance process.

there's a lot of very specific rules that you have to follow in order to qualify for medical assistance. Can you speak to that a little bit about how your firm helps families go through the medical assistance process? That's a whole other episode. I know. So high level, high level is good here. We need you to come That's a deep one. That's a deep one.

Rachel Schromen (32:00)
level, we sit down, we look at the parents financial situation, what assets they have, what the value is, etc. And then we support them in how to utilize or protect those assets while still being able to qualify for medical assistance. Sometimes it means doing something five years in advance to protect that legacy for the next generation.

Sometimes it's as simple as what can we be doing rather than just writing checks to a nursing home for the next 10 months before the assets are to the point that we qualify. And we sit and walk them through that.

Eliesa Johnson (32:35)
It would have been so helpful to have that advice. Like I kind of had to like muddle through it on my own. I mean, it's still kind of am, but it's, it's so crazy.

Rachel Schromen (32:41)
Well, and it's, I'll tell you,

Two of us in my office, work together on the files because even though we've been doing this for years, it's complicated. It's a very complicated area of law. Yes, I mean, I...

Eliesa Johnson (32:54)
complicated. Like I feel going

into it, I was like, I'm smart. I run businesses. I can manage a lot. I can time manage really, really, really well. And she's an only. Yes. But like, I, I can do this. And it was nearly impossible. I can see why two of you tag team it. know, sometimes I see people

in my parents assisted living community who, you know, the staff is trying to help them fill out forms. I'm just like, God, what do people do if they don't have someone

Rachel Schromen (33:27)
When I started practicing in elder law, the nursing home helping with applications wasn't a bad option. Right now, attorneys are getting hired more and more to do the applications, frankly, because of staffing cuts.

Eliesa Johnson (33:43)
Yes,

can absolutely, absolutely attest to that. Yes, I see that.

Rachel Schromen (33:45)
Like

some colleagues of mine, there's another elder law firm that does a lot of applications. It's kind of their bread and butter. And anymore what they're doing is they're putting the application in and then they're just setting a reminder to file for appeal after so many days because they know the application is not going to go through because the system is so backed up. But when they get an appeal from a law firm, they push it because they don't want to deal with the appeal, which is unreal.

Eliesa Johnson (34:07)
It's so backed up.

Well, and I'll say

I know like when I ask my parents facility about it, it's like, they don't necessarily want to help because it's not really in their best interest, more in their best interest to just have us pay the rent

Rachel Schromen (34:15)
going to use.

Mm-hmm.

Eliesa Johnson (34:25)
I also wanted to ask if someone's in a position where they do not have the funds, their parents do not have the funds, are there free resources? What are things that people can do if they're in a compromising financial position when they get here?

Rachel Schromen (34:38)
Well, It is really unfortunate the number of people I meet who believed that their parent didn't need or couldn't afford legal help, who didn't get it, that absolutely could have and should have. And I'll give a good example. I had a woman come in, her dad had passed away and she said he didn't need

an estate planning attorney. He didn't have much. He couldn't afford it. He lived on social security and he owned a hundred and eight thousand dollar house that was paid off. And because of that, the house went through probate in order to get transferred to her. And it was thousands of dollars. It was a year long process. If he had come in at that time to my office, it would have been a three hundred dollar deed. That avoided probate. And I was just like, what a bummer, because he could have afforded three hundred dollars.

Eliesa Johnson (35:22)
Wow. Yeah.

Rachel Schromen (35:30)
And it would have been a lot less stressful than it was on her then spending a good amount of money to go through this probate process and having the stress of it. Yes, totally. And so my point to that is pause, have an initial consult. ⁓ You know, at this point in my practice, I'm

Eliesa Johnson (35:38)
and time. So much time. Yeah. Yeah.

Rachel Schromen (35:53)
we do flat fee, you know, but I bill at 425 an hour when I do hourly work. When I started practicing law, I was 150. So there's a range. You can find law firms that charge four times as much as I do for the work we do, and you can find law firms that charge half. And so there can be a range of what legal resources cost and ask the questions and learn the options. Apart from that, there are a lot of

Eliesa Johnson (36:08)
Yep.

Rachel Schromen (36:19)
different free legal clinics that exist. our firm volunteers for an organization that supports victims and survivors of domestic violence, free estate planning for individuals going through cancer treatments. We do a veterans clinic. We do a first responders clinic. So there can be these different resources to different demographics if they qualify.

there's always legal aid.

Eliesa Johnson (36:44)
So the gist of it is really make the calls, ask the questions, ask the rates right away, get the information. Yeah.

Rachel Schromen (36:50)
Yeah. Yeah.

And if you get the information from three attorneys and you get the rates and you may, and the assessment is, I don't know that we really need this and we need to spend the money. Okay. Then don't. You're just.

Eliesa Johnson (37:02)
But take the initiative, right?

Because planning early is key.

Rachel Schromen (37:07)
Yeah, I put a lot of value on peace of mind and buying time and space for myself to be present and be a little messy when I need to be. And that's why, you know, I said before, if my mom moved up here and I would hire my colleague Jill to do the elder law planning

just to reduce the stress and anxiety on me so I can show up and be a daughter in that moment. She needs she needs me to be a daughter. She doesn't need me to be her lawyer.

Eliesa Johnson (37:37)
That is great advice. I love that.

hearing your approach to the empathy that you have for families when they call to hearing them and asking them questions to guide them in the right direction, letting them know, Hey, do you need my services? Do you not? What a gift.

Rachel Schromen (37:45)
Mm-hmm.

Eliesa Johnson (37:55)
because having that not been my experience, that would have been a night and day difference in feeling support for our families. So maybe the takeaway for some listeners is if you have reached out to lawyers that are maybe a little more abrasive, sometimes jaded, maybe burnt out, don't stop there.

There are people out there to help and there are resources out there to help you.

Rachel Schromen (38:17)
Yeah.

And it's such an emotional and personal area that it is appropriate to look for someone that feels like a good fit. Even there could be people that meet with me and they go, you know, we really want someone a little more direct that stays out of the emotions. That feels more aligned for them and that feels more supportive and protective while they're navigating something emotional.

Eliesa Johnson (38:33)
Sure. ⁓

Hmm.

Rachel Schromen (38:42)
There's

plenty of attorneys that practice that way. There's plenty of attorneys that practice very similarly to me. So to your point, if you don't feel supported, if you have an off feeling, if you just don't like how the communication style is, make some more phone calls, have a couple of free consults, and then, make a decision.

Eliesa Johnson (39:03)
I feel like you are the perfect person for us to be talking to because I think we can both attest to the fact that, when life hits out of nowhere I've talked about this a couple of times. My mom got in really bad car accident on the way to see my dad who had had a massive stroke and that

day in particular, put both of my parents into the category of I was their caretaker along with my sister and we were no longer the kids. there is such an emotional component to that. mean, you talk about deer in headlights. you're just trying to struggle to get through your feelings, let alone suddenly you realize you're in charge and people are asking you things like, do you have power of attorney? You're like,

I just accepted that I was an adult like yesterday. Like, no, I don't know what you're talking about. I'm trying to care. I'm seeing my mother frail for the first time. Like, I have no idea what you're talking about. I will Google it and get back to you. So I really feel like this is where we can be of service to a lot of the people that are going through this very similar moment. Or maybe they're approaching the moment.

Rachel Schromen (40:08)
I have so many clients come in that are in that exact position. And I feel like part of what I'm doing is supporting them and it's

and even getting the help and saying it is okay for you to want to be a daughter right now. my mom lives in Iowa and I tell people regularly, let's say my mom moved up to Minnesota. She was going to go into a nursing home. I I wanted elder law support. I can tell you what colleague I would hire. Cause I absolutely would not do it myself. I don't want to be my mom's elder law professional. I want to be her daughter and

Eliesa Johnson (40:22)
Yeah,

Rachel Schromen (40:43)
I think when children step into that role, they feel like they have to do all the things and know all the things. And sometimes you can't. And it's really not necessarily appropriate. I mean, I've done a lot of, you better believe I get called a lot with a lot of questions from family members. My brain, even though I'm a lawyer, when it's my older brother calling me or my mom calling me, it's not a hundred percent Rachel Schromen lawyer brain. You know? And so,

Eliesa Johnson (40:49)
Sure do. Yeah.

Of course. Yeah.

Rachel Schromen (41:13)
it's even just in that moment giving ourselves permission to reach out to professionals to support us.

Eliesa Johnson (41:21)
that's really great advice. I powerful advice. exactly.

I feel so lucky that you could bring so much to this conversation, so much heart and so much knowledge, and beauty all at the same time. I feel like we should only all be so lucky to sit

across from a lawyer that has so many great feelings. Yes, truly. Who has feelings? No, nothing. Clearly, clearly a gift to this world. But I, yeah, I, were, you were brought to us, I feel like as a gift and I wish I would have met you years ago. And I'm so glad that I met you now and we are so happy that we could have you. And I think you were also a major gift to your father and thank you for sharing those stories with us because I know so many people listening to this are going through that.

And so thank you for being so generous with your time and everything that you know from your heart and your mind. This is not the last time that Rachel Schromen of Schromen Law LLC will be on this podcast. I can already tell.

Rachel Schromen (42:15)
Thanks for having me.

Eliesa Johnson (42:23)
Thank you, Times a Million. You are so fantastic.

Eliesa Johnson (42:27)
We hope you enjoy today's episode and hopefully you can take away some helpful info and tips. All links and resources can be found in our show notes. Please share this episode with anyone you think this might help. And if you have a topic that you'd like to talk more with us about in the sandwich generation world, please slide into our DMS on Instagram. Our handle is @ thesandwichgenerationpod We hope you'll be back for more convos with us soon. And remember.

No matter whose diaper you're changing, you're never alone. That was great!

Eliesa Johnson (43:08)
Rachel was amazing. I truly wish that I would have known her at the beginning of this journey with my parents. And it's so true. Like my sister and I talk so much about lawyers at a certain point because we knew

We should be asking certain questions. And a lot of our parents' friends were like, do you have this in order? Do you have that in order? But it was all foreign to us. And we did call around to some lawyers. But we did get really scared off by some of them did charge, by the way, for consultation. We got referred to one that charged $400 for a consultation. So we got really scared off. ⁓ But I just wish we would have met someone as approachable as her.

And also so caring. Yeah. Like so caring as we're caretaking for our parents to have a professional, especially a legal professional who has empathy, who cares about your emotions and your wellbeing of the caretakers and the parents, What a gift it's such a shock

if you've been through this where you're in the emotional cloud and then you talk to a professional, like a medical professional or a lawyer or someone financial and they're stonewalling you or they're just so cold and you're talking about something so emotional and yet they're so transactional. you feel like, can I even ask you this question? Yeah. And you feel stupid.

So it was just really refreshing. It felt like I was talking to a girlfriend, which we, know that's not the usual case when you're talking to a professional like this. So I'm glad.

I hope you guys got something out of that. thought it was really insightful. The takeaway for me, is that I always think about getting power of attorney or these healthcare directives for my parents, but I haven't thought about getting them for myself yet.

I don't think about that in terms of what if something happens to me and that Nick can't maybe access some things that I have, So that was my takeaway. And the other takeaway was when your children turn 18, to have them get POA paperwork. if something happens to them because then they're a legal adult, to have that paperwork in place.

as they're out and about in the world.

I'm very proud of you for doing like doing all of this. I, I referenced my sister a lot and doing all of this on your own is really amazing. mean, you call lawyers and then you talk to yourself about, what's, what's that a good lawyer? guess you talk to your husband. do talk to my husband. Yeah, he's, he is a great soundboard. and always there for me, but also he's felt limited cause he's wanted to do more

My last thought is through this whole process, like we've had different turn of events where different points where we're like, we should call a lawyer. Yeah. And often we still are like, okay, do we call an elder law attorney? Do we call an estate attorney? What can do we call? Then there's insurance attorneys. So I love that we're going to keep asking the questions because it's not like you just hit one point in this journey where you need a lawyer. You need,

you might need lawyers and different kinds of lawyers along the way. I like that we're going to just keep asking the questions. And I also love that she said, you know, if you don't have the funds, because I think that is so real for many of us, whether it's that we personally don't have the funds or our parents don't have the funds, they are not set up for this kind of, because I think we all get really intimidated by.

Legal equals lots of money. I that she came up with a couple of suggestions if you're feeling that way.

I think the ultimate takeaway is get your people, get your shit in order.

Yep. Have them have them sign the documents. this was some advice and some tips that you all can take with you. One is, a lot of times people don't want to face the paperwork or face the questions because

It's scary and they feel like they're signing away their lives or losing their autonomy. The takeaway that I had from Rachel today was to know your fears can be talked about. Whether that's your own, your loved ones. And to go in to an attorney's office and talk about what they're afraid of.

The power of attorney is a financial document and the health care directive is the medical care document. Minnesota specifically. Correct, for Minnesota. Sometimes it can be different for other states. Yep. If you are going about this journey with your siblings, some advice is to play up to your strengths of each sibling when you're supporting your parents. If someone's not great at paperwork, let's not have that sibling do it.

I did want to say a note on that. it's really in real life been very helpful for me and my sister to both have power of attorney to do everything equally, ⁓ because she is better at the paperwork, but there are so many times that I've needed to put it into motion and it's not, dependent on each other.

Another thing I want to say in real life that I have used is, my parents are on medical assistance and we had to separate their bank accounts individually. And when I first got them signed up with their new bank accounts, I was just a co-signer on their account and I redid all of it because I learned that since I am their power of attorney,

I need to be listed as power of attorney on their bank account, not as a cosigner. That's a hot tip.

I loved this tip, loved this. Make sure you have the capacity, but also that your parents have the capacity to make decisions

on the day of. if you have a meeting set with an attorney and let's say one of your parents has Alzheimer's or dementia and they're having a bad day, reschedule, don't push through,

Those are some takeaways. So I hope you guys learned something. I sure did. OK. Bye.