Astor Matter Reminds Us that Trustworthiness is Essential When Nominating Substitute Decision Makers

Lately, the matter of Brooke Astor’s estate has been covered in the media. Like many people she had an estate plan in place which included a Durable Power of Attorney and Health Care Proxy, which nominated subsituted decision makers in the event she would lose the capacity to make important financial and/or medical decisions at some point during her elder years. She did not want to burden her family with obtaining a Guardianship and/or Conservatorship through the courts. She did end up suffering from Alzheimer’s disease and her son took over her financial powers. He just didn’t do a very good job…

The following is an exerpt from this week’s AZCentral.

Anyone who has signed a financial document has to be squirming a bit over Brooke Astor’s estate case.

Her son, Anthony Marshall, recently was convicted of stealing millions of dollars from Astor while she suffered from Alzheimer’s disease before her death. Although the case largely centered on a contested will purportedly signed by Astor, other estate-planning issues also came into play.

One was a financial power of attorney signed by Astor that gave Marshall authority to direct her affairs if she became incapacitated - and the means to steal from her.

The episode provides a wake-up call for people who use financial powers of attorney. These legal documents can be highly effective in ensuring that someone else will be around to handle financial matters for you if you’re alive but unable to do so - as in the case of mental incapacity.

A power of attorney can be as short as a page or much longer, depending on the detail desired. They’re often included with a trust, will, health power of attorney (addressing medical issues) and other estate-planning documents.

For all the benefits of using a power of attorney to avoid a potential court-supervised conservator situation, there are pitfalls, too.

In particular, you need to trust the person whom you designate to act on your behalf. And you should make sure he or she is responsible, diligent and reasonably astute.

“They really are documents that people should pay attention to,” said Denise McClain, a financial principal and attorney at wealth-management firm Lowry Hill in Scottsdale. “You’re potentially passing along a lot of power.”

Senior Centers:The Importance Elders Staying Active & Social

I’ve been trying to come up with a new slogan for area senior centers. So far I’ve come up with Senior Centers: come for the free food, stay for the crafts! or Senior Centers: It’s WAY more than BINGO!

But seriously, senior centers offer independence for aging adults. They play a very important role in the lives of elders today by encouraging them to become and remain social.

Socializing can help seniors with depression, dementia, or alzheimers. I know, you will say, Mom or Dad will not go to a senior center. Then make it easy for them. Go along with your parent for the day. Make it an outing and then take them to lunch. In most communities any aging adult who is 60 years old or older can join a senior center. You can also see the things that a senior center has to offer that Mom or Dad might be interested in or enjoy.   Knowing that your parent is at a center, or on an escorted day-trip can reduce the stress and anxiety you may have about your parents sitting home watching television all day or being alone. The main thing is to get them out and about.

Senior centers allow elders to develop a social network by making and meeting new friends. Senior centers offer programs and services like crafts, bingo, fitness, dances classes, travel to museums, computer classes, health screenings, informational speakers, daily meals, birthday luncheons to celebrate each member’s birthday and much more. Many senior centers also offer outings to do things such as live performances, fall foliage tours, and tours of Newport Mansions. Your loved one gets out of house, has an opportunity to socialize, while getting some light exercise and enjoying a good meal with great friends. Each senior center usually publishes a monthly calendar with a schedule of daily activities or programs.

To get your elder started, sign them up at your local center and tell them that they do not need to go everyday. They can start once a week, playing bingo, let’s say. This way they will not feel pressured. You will see that before you know it, Mom and/or Dad will be visiting the senior center on a daily basis. Suddenly catching up on their favorite television program may not be a priority anymore. (But hey, that’s what TiVo is for!)

So what if your parent/loved suffers from Alzheimers/Dementia and is too far gone to meaninfully participate at a Senior Center? Why not explore Adult Day options? These programs offer the socialization that some say is vital to keeping the disease at bay while also providing a safe, secure environment, specifically catered to your parent’s needs.

Check out this listing of Worcester area senior centers.

Thank you to Senior Living for contributing material for this blog.

Elder Mediation: A Great Option to Diffuse Family Tensions When Planning for Elder Care

Can’t we all just get along?  

I see it more and more and it really saddens me: families unable to “get along” when it comes to decision making for elder loved ones. It can be as simple as whether Mom and/or Dad need to meet with an Elder Law Attorney, to concerns over finances and inheritance issues, to whether siblings agree on who should serve as primary caregiver, and/or to whether assisted living/nursing home care is necessary.

Often as family members age, family dynamics can become more complicated. Conflicts that have simmered below the surface can boil up and make conversation impossible. Sometimes the elders are involved in the discussions, but unfortuntately sometime they are too far gone to meaninfully participate.

Either way, even the most harmonized family can sometimes hit a bad note or two and require some assistance.

(Dun, dun, dun, dun!) Enter the Elder Mediator. Mediation provides an opportunity for the Elder and all concerned members of the family to participate in creating a thoughtful plan for future. In most cases Elder Law Attorneys can act as Elder Mediators with certain issues. However the scope of the disagreements can often rest in other issues that are not related to the elder law topic. An Elder Mediator, working closely with your Elder Law Attorney, is trained to assist families in identifying the real issues, separating them from the crucial issues of planning for elder care, and developing the best plan of care.

National Public Radio has recognized the usefulness of elder mediation for families dealing with aging issues.

As baby boomers age and options for their care increase, we will all face many difficult choices concerning how we handle transitions during our elders’ declining years. Families will have to be able to evaluate resources, options and develop flexible strategies to support their elders. Even when not legally competent to make decisions, it is important to include an elder’s wishes and expressed preferences when putting a plan into place. Elder mediation is a rational first step for families to help them address their changing needs while enhancing problem solving/communications skills and avoiding messy litigation.

Guardianship Alternative for Minor Children Living With Non-Parent

Occasionally a minor child will end up living with someone else besides his or her parents. This could be temporary, semi-permanent, or permanent. Perhaps the parent is in the military and was called to active duty so the child goes to live with a grandparent. Maybe the parents have a health or substance abuse issues and an aunt/uncle take charge of the child. Or perhaps a child chooses to live with a relative so that they may attend a specific school.

In situations such as those it used to be that in order for the caregiver to have the authority they needed to deal with health care providers, medications, and the school systems, a Guardianship was needed. This process was costly, time consuming, and actually replaced the parent’s rights to make decisions for their children during the time that the guardianship remained in effect. A trip to the Probate Court was needed to initiate and terminate the process.

Currently there is a new law which allows a parent to give a caregiver (the person the child is living with) concurrent authority to make educational and health care decisions for the minor child. The Act Relative To Caregiver Education and Health Care Authorization allows a parent to authorize a person with whom their child is residing to “exercise concurrently the rights and responsibilities, except as prohibited by the parent, that the parent possesses relative to the education and health care of the minor children.”

The parents can specify any actions that the caregiver is not allowed to take, and the parents continue to retain their authority to take any and all actions related to their children’s health care and education. The form only needs to be signed by one parent so it can be used to grant limited powers to “step-parents” who are primarily available during school hours and/or who take the children to their medical appointments. This is a wonderful news for blended families with minor children. The parent’s decision supersedes the caregiver’s decision if there are any disputes. The caregiver signs an acknowledgment that they will not knowingly make any decision that conflicts with the decision of the child’s parent or other legal guardian.

The document remains in effect until the date specified by the parent, not to exceed 2 years and the powers can be changed or amended at any time by the parent. The document should be provided to the child’s school and health care providers.

This new law will go a long way to help those families who need some assistance in caring for their children, without needing a costly and inconvenient visit to the probate court.

Elder Abuse Often Goes Unreported

Many elderly people rely entirely on family or other trusted individuals to help them. Whether it is for physical or emotional needs, as people grow older they tend to need more and more help from others. This dependence on caregivers or family members makes an older person more vulnerable to abuse.

For example, an older person relying on her children to provide meals, transportation and help her with financial decisions finds it difficult to complain when one of her children takes advantage of her. If, for instance, the child takes her money, hits her or neglects her care, the parent may be threatened with loss of support from the child if the parent complains. The child may also use threats of violence to keep the parent in line.

It is estimated that 5 to 10% of elderly Americans are suffering abuse. According to the National Committee for the Prevention of Elder Abuse, more than 750,000 persons aged 60+ were victims of domestic abuse and that an estimated 84% of incidents are not reported to authorities, denying victims the protection and support they need. Much attention has been focused on abuse in nursing homes but most of the elder abuse in this country is at the hands of family members or other caregivers in the home.

What about the unreported cases? It is suspected that 9 out of every 10 actual cases of elder abuse and/or exploitation go unreported. The majority of the victims were females between the ages of 60-89 and 60% of the perpetrators were family members/relatives, while 24% were non-related paid caregivers.

There are a number of reasons why incidents of abuse, neglect, or exploitation are not reported to Adult Protective Services or other authorities. One of the most common reasons is the victim’s fear of losing support. Many of the perpetrators are family members and the victim fears that reporting the crime will result in removal of the caregiver, as the perpetrator may face incarceration or may discontinue relations with the victim once accused, charged, or convicted. Many of these victims fear that by reporting abuse they will be left alone and expected to care for themselves, or they will be forced to live in a nursing home.

Many states, including Massachusetts,have implemented mandatory reporting laws to assist in the prevention of abuse, neglect or exploitation of vulnerable adults. Massachusetts law requires doctors, nurses, social workers, police and other emergency responders, elder outreach workers, directors of home health agencies, and certain other workers to report elder abuse. If any of these mandated reporters knows of elder abuse and doesn’t report it, that person can be fined. A mandated reporter must call to report the abuse right away, and must file a written report within 48 hours.

In non-emergency situations, one can call the local Aging Services Access Point (ASAP) and ask for Protective Services (Massachusetts Area Agencies on Aging (AAA’s) and Aging Service Access Points (ASAP’s).

Prevention can only occur if there is awareness, the statutes are adhered to, and any suspicions of abuse, neglect or exploitation of vulnerable adults are immediately reported to Adult Protective Services and/or law enforcement.