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 Rockland
- The call from the facility to inform me that Howard had
passed away triggered a variety of emotions in me, but not
for the reasons you might expect. Howard had no family and
had not executed a Durable Power of Attorney (DPOA) or
Health Care Proxy (HC) to appoint someone to make decisions
on his behalf. So, when Howard was suffering from dementia
and no longer able to live alone in his apartment, Elder
Protective Services asked me to serve as his court-appointed
guardian. As Howard’s guardian, I became responsible to make
all medical decisions on his behalf, secure appropriate
housing and services, and to manage his finances.
I called Kate Granigan (now of Overlook C.A.R.E.) to
incorporate her geriatric care management services into
Howard’s plan. Kate and I moved Howard to an assisted living
facility and put services in place to allow him to retain as
much independence as possible. Even after the transition to
a nursing home became necessary, we maintained companion
services to provide Howard with a few hours out of the
facility each week.
Kate and I have worked as a team to advocate for all of
Howard’s needs, and although his dementia advanced he always
knew who we were. In fact, Howard once informed the nursing
home staff that he was not happy about something and assured
them that “his people” were going to look into it. We were
proud to serve as “Howard’s people” and so honored that he
realized our role until the day he died. Although we were
not “family,” we treated Howard with the respect and dignity
we would demand for our own parents.
As my week went on, I was consulted by five siblings
regarding their father, Bob, who they believe is being
financially exploited by their sibling, Jack. Jack, as agent
in the HCP and DPOA, is trying to place Bob in a nursing
home contrary to Bob’s wishes and despite the fact that Bob
is doing well at home with significant assistance. The
reality is that Bob’s care is expensive and funds spent on
his care now will reduce his children’s future inheritance.
As I listen to this family’s story, it appears that Jack is
not acting in his father’s best interest, not upholding his
father’s wishes to remain at home and is motivated solely by
his own financial gain.
Apparently, Bob appointed Jack over the objections of all
the other children simply because he is the oldest. Jack
does not get along with any of his siblings. He has had
trouble managing his own finances and filed for bankruptcy
in the past. Jack was simply not an appropriate choice to
serve as Bob’s agent, and although Bob realized that when he
executed his documents, he did not want to hurt Jack’s
feelings.
To make matters worse, Bob took steps to protect his assets
from the cost of nursing home care by conveying his home and
assets to a trust. Yes, you guessed it – Jack is the
trustee. Bob is now at risk of being moved to a nursing home
against his will, despite the availability of sufficient
funds to provide the necessary care in the home.
The cases of Howard and Bob illustrate that poor planning
is worse than no planning at all. Make no mistake – the
message here is not that planning is not important. It is
critical to understand, however, that the primary purpose of
planning and protecting assets is to ensure your own future
care and security. If your intent is to remain in your home
as long as possible, then your planning should reflect that.
You must appoint agents and trustees in a manner that
respects your wishes, protects your security and does not
leave you vulnerable in the event that relationships go bad
in the future.
Howard did no planning at all, but as his Court-appointed
guardian I had a duty to use his funds for his benefit and
to keep him in the least-restrictive environment as long as
possible. In contrast, Bob’s poor planning left him
unprotected because in his effort to “protect” assets, he
gave up all control over his future security.
If you do not want to find yourself in Bob’s situation, work
with an elder law attorney to ensure that your documents
include the necessary protective provisions and be willing
to make the difficult decisions that are necessary to
appoint agents who will hold your wishes and best interests
paramount to their own.
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