An elder’s problems may be exacerbated by medical, legal, or financial advisors who listen to the wishes of an adult child who may produce a valid power of attorney and insist upon documents to ensure control or obtain results detrimental and contrary to the elder’s needs or desires. If the elder has hearing, visual, or cognitive impairment, but is quiet and happy in the presence of their child, even saying, “I want whatever my child says. I trust him or her completely,” the professional advisor may effectively wring their hands of the situation and try to determine the next course of action.
If a doctor, lawyer, or other professional correctly expresses concerns about the capacity of the elder, the next move may well be that the client is whisked off to another professional who is more willing to accept at face value the views expressed in the presence or under the direction of an adult child. If the client goes elsewhere, the original lawyer may well face repercussions for attempting to “interfere” with the new lawyer by expressing concerns about the client’s capacity for decision-making.
While it may be possible to file various causes of action to reverse financial mismanagement, if there is no valid party to complain, if the government will not step in, or if a different family member attempts to act, then there are a myriad of defensive tactics that can be taken to shut down efforts to remedy bad fiduciary acts.
What preventative steps might an elder lawyer take to avoid exploitation, abuse, or neglect of an elder client?
This writer has found clients to be very receptive to the suggestion of annual checkups to review estate plans, insurance, contracts, or changes in laws which might impact previous plans. Setting up such annual visits and charging a nominal consultation fee where the lawyer and client look through estate plans, insurance coverage, or changes in health or family status helps the client maintain confidence in the attorney, gives the attorney an opportunity to suggest changes that may improve upon legal plans, and gives the attorney greater credibility in assessing changes which seem harmful to the client. Often the practitioner who sees the client annually may be in an advantageous position to note any changes in demeanor, finances, and lifestyle through establishing a long-term relationship with the client and they are in a better position to stave off the beginnings of financial or emotional abuse. Annual visits with the elder client should elicit the following information:
- Where do you live and who else resides in the home?
- Do you own the home (include a check of the county property assessor site to ensure deed has not changed since previous visit)?
- What is your current income and what is the source?
- Are you receiving any governmental benefits? Specifically, are you receiving Medicaid or Veterans disability assistance?
- Is your income sufficient to cover your current spending habits?
- Are you financially “helping out” a friend or family member on a regular basis? Who and to what extent?
- What debts do you have? Were credit card purchases made mostly for you or for other family members?
- Have you gifted any significant amounts to any friends or family members in the past year? How much and why?
- What are your current assets? Is that a notable change from last year?
- Have you suffered the loss of any family members or close friends in the past year? (Hopefully, they would have called the attorney’s office in the event of such a loss.) How has this changed your personal care habits?
- Have you inherited any assets in the past year? Did you keep the inheritance or did you “share it” with another family member?
- What vehicles do you own? Who routinely drives that vehicle? Who is insured to drive the vehicle? Evaluate the insurance coverage to determine sufficiency of policy.
- Evaluate insurance on any family home or other property.
- Do you own any new properties other than your homestead? Are those properties in another state? Do you regularly visit that property or is someone else living there or extensively using the property? Evaluate whether the property should be deeded into a trust for ease in transition or even liquidated to provide funds for elder care rather than preserved for the benefit of one’s children or other heirs.
- Do you have any new health issues or are you having significant problems with any health issue? Who is your primary physician? Do you see any specialists, and if so, for what?
- What types of medication do you regularly take?
- Consider using a short mental health screening device to establish a baseline and evaluate any changes in cognitive ability.
- Do you have any concerns about your agent under your power of attorney? How are you having a good relationship with your designated agent? Is it time to consider naming someone whose decisions will comport with those you would make, or do you feel obligated to designate someone who you do not completely trust?
- Go through the listed heirs. Are there any changes or new concerns about existing plans?
- Look at the client. Is the client clean or wearing clean clothes? Do their clothes appear to fit properly? Is the client shakier than you recall or having issues communicating?
- Has the client considered organ donation, cremation, or burial? Is there an existing prepaid funeral plan and is that plan in the client’s portfolio? Is a funeral trust appropriate to exempt assets from Medicaid issues?
- Are all appropriate property tax deductions utilized? Are local property tax payments up to date? Is there a possibility that the senior is in danger of losing their home due to unpaid property taxes, code enforcement issues, unpaid mortgage issues, or other financial issues?
- Has the client signed for a new mortgage on the homestead and, if so, were the funds misappropriated by someone other than the senior client?
- If the client has a trust, have assets been properly reassigned? If POD designations are in place, is proof of same in the estate portfolio, along with beneficiary designation for assets passing outside of probate?
- Is it likely that the client will soon be a candidate for an assisted living or skilled nursing facility? If so, would Medicaid planning be appropriate? What concerns does the client have about in-home or out-of-home care?
- Do you have a gut feeling that something is not right? Follow your instincts until you are sure the senior is safe!
Preventative planning is the best way to protect clients from elder abuse, but it should not be a one-time event. Ongoing checkups and maintenance are the best way of ensuring that appropriate checks and balances are in place and that the senior client is not being steered into a course of action that is detrimental. Showing genuine care and concern beyond simply constructing a plan to disburse assets beyond death should be an intrinsic part of the estate planner’s job. Make it clear to the client that you are as interested in ensuring the person and property of the elder client before death as the client is about heirs after death. Acknowledge the elder client has built an estate based upon demanding work or good luck and that the clients’ assets should be used primarily to ensure that the remaining years are well lived. The elder client should know that just because one is aging does not mean that assets must now be set aside in favor of heirs rather than used by the senior to enhance ongoing quality of life issues. As Americans live longer, elders should be encouraged to retain and use sufficient assets to live well before ensuring loved ones are left a particular inheritance.
Changes in laws related to inheritance of IRAs and other retirement plans initially seemed to penalize secondary non spousal beneficiaries. But it is time to evaluate retirement plans as they were intended: to provide for and protect the elderly – not to satisfy greedy heirs who may not genuinely care about their parents’ needs or wishes.
Do you really know elder abuse when you see it? Are you doing your part to protect elder clients? Have you implemented your own end-of-life strategies to avoid being a victim yourself? Take charge and empower yourself and other seniors to “live long and prosper,” in the words of Mr. Spock!