THE DARK SIDE OF HEALTH CARE POWERS OF ATTORNEY - Part 5
By Cary A. Lind
Scenario 3 - The Emotional Daughter.
Ellen lived rent-free with her mother, Catherine, and had control of her mother's care. Ellen was the youngest child, and several of her older siblings were jealous of her low-cost living arrangements and her control. The older siblings took Catherine to an attorney and she executed new powers of attorney. By use of the HCPOA, the agent then evicted Ellen from the house and denied her visitation with her mother.
Ellen was distraught. She had done nothing wrong. The only remedy available to her was through guardianship, but Ellen did not have either the money or the emotional strength to pursue that route. She was totally cut off from her mother for no reason.
Scenario 4 - The Alcoholic Son.
Michael lived with his father, Joseph, for over 40 years. As Joseph's health deteriorated, Michael became his primary caretaker and did a generally good job of doing so. However, Michael had a problem with alcohol. During one bout of drinking, Michael "took" approximately $100,000.00 of Joseph's money and used the greater part of it for improper personal use. Michael's brother, Robert, contacted the IDA, and they investigated. When they discovered the financial losses, they acted at once to get Michael out of the house and prosecuted him for the theft.
Michael acknowledged his part but had no assets with which to repay his father. The financial loss could probably have been "settled" later on between the two sons out of Joseph's Estate. Michael, however, was cut off from seeing his father at all as a condition of the bond in the criminal case against him. Even though he brought it on himself, that separation was devastating to Michael, both for the loss of his ability to continue to take care of Joseph and because so much of his world was built around Michael's relationship with his father.
On the other hand, Michael was also concerned about Robert's financial reliability. We filed for guardianship and moved to void the new POAs, which we suspected had been executed while Joseph was not competent. Instead of fighting our petition, Robert agreed to be appointed guardian and to allow Michael supervised visitation to the extent both courts would allow. The guardianship provides Michael a vehicle to obtain visitation should Robert change his mind and seek to prevent contact and also a mechanism to monitor Robert's financial transactions on Joseph's behalf.
Scenario 5 - The Good Daughter and Her Husband.
Chester was 99 years old and a widower. Chester had two children, Ron and Chris. For several years, Ron had taken care of Chester's living trust and finances and those of Chester's deceased wife. Ron would stop by Chester's house early every morning to check on him, to pick up the mail, to check with the full-time caretaker, and to do what might be necessary. However, that was usually Ron's only contact with Chester.
Ron and Chris had little to do with each other. Ron refused to keep Chris advised of anything regarding Chester's health or finances. For reasons we do not know, Ron made plans to move Chester from his home to an assisted living facility. Chester wanted to stay in his own home, not in a facility. Because Ron would not listen to him, Chester wanted Chris and her husband, Eric, to be in charge and did not want Ron to have any more control over his money or his personal circumstances. After satisfying myself that Chester was competent, I drafted an amendment to Chester's trust together with new POAs to make Chris and Eric the new trustees and Chris the initial agent on both POAs. Chris and Eric advised Ron in person that the changes were made.
So far, this story sounds like the others set forth above, but it changes here. I instructed Chris and Eric to keep Ron fully advised of everything related to Chester's health and finances, and they did so at once and in great detail. I also wrote to Ron and asked for a full accounting of his actions as trustee and as agent.
Ron hired an attorney, who (to his credit) attempted to work out a solution involving joint control of Chester's assets by both Ron and Chris. Chester, however, still did not want Ron to have any control. Apart from control, however, we gave Ron full disclosure and let Ron know that we welcomed his input and would take it into account in any decisions which affected Chester. Chester continued to stay in his home with Chris and Eric fully involved in his care. Ron was not happy with the loss of his control, but he had no basis upon which to contest the new POAs, and we had no intention of ever cutting him off from Chester.
©2007 by Cary A. Lind, all rights reserved.
Cary A. Lind, P.C.
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