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.”

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.