This really happened. If you had this 91 year old client, what would you do?
Emma liked to play the sweepstakes. But her memory was starting to decline. A lot. When it came to her bank account, she forgot to check her statements as she had always done. Odd withdrawals began. Hackers had gotten in. Before she realized what had happened, someone had withdrawn a total of $40,000. It was time for her family to act. Emma was a planner. She had trusted her son and put his name on her trust, her durable power of attorney and her health care directive. But her son needed cash. He became an opportunist.
She had a daughter too, but she was old fashioned and thought the man should take care of the money. Her son, Jonny knew his mother needed to stop handling her finances. So, he rushed her off to the clinic and told the doctor what happened with her bank account. After 15 minutes, the doctor, without doing any psychological testing on Emma decided that she was no longer capable of handling her affairs. He and another clinic doctor signed a handy form letter to that effect and gave them to Jonny. Jonny then went to both Emma’s banks with a copy of the trust appointing him to take over when Emma could no longer handle her affairs. He produced the two form letters from the doctors and was instantly given access to Emma’s account. He withdrew all of her cash, a total of $20,000.
Jonny then informed Emma that she was coming to live with him. He would charge her $1000 a month to live there. Emma was very angry. She admitted that she could no longer keep track of finances, but she did not want to give up her home, her community and the things she loved to do. She was alert, and knew what losing her home would mean. Jonny worked full time. His idea of a life for his mother was to take her to adult day services early every morning and leave her there until after 6pm when he returned from work. She wanted none of it. She felt betrayed, duped into giving Jonny all the power and furious that he could run her life without any interest in what she wanted.
There is danger in assumptions. Loss of the ability to handle finances safely does not mean in every case that a person can’t make decisions about where to live, what she wants and who should be in charge of her affairs. Emma had the strength to stand up to her son. She contacted us with her daughter at AgingParents.com. Was Emma too impaired to change her trust? The only way to safely answer this controversial question was to have Emma undergo psychological testing and some interviews with Dr. Davis, my partner here.
Testing was done and two interviews on different days were conducted. Result: Emma had mild cognitive impairment and still had the ability to decide who should handle her affairs. She did indeed have significant short term memory loss but many of her other abilities were intact. Her daughter then took her to a local attorney and she immediately changed her trust to appoint an independent, licensed fiduciary to be her new trustee. I doing so, Emma removed all power from her son. She put her daughter on the trust too, but only for oversight of the fiduciary. The fiduciary would have complete decision making ability as to how Emma’s funds should be spent. And she gave authority to her daughter on her healthcare directive to decide where she would live, as she knew that her daughter would honor her wishes to remain in her home, with a helper, for as long as possible.
The risk of making the assumption that loss of capacity for financial decisions means total loss of the ability to think or decide everything else can lead to disaster. Emma was nearly kidnapped by Jonny who was determined to make his little scheme work, all to his benefit ($1000 a month). With total power in his hands, he likely would have immediately sold her house as well. She was fortunate to have escaped a fate that would have made her both frustrated and miserable.
The takeaway here is to beware of too hasty conclusions that an aging parent is completely incapable of decisions other than financial ones. Financial capacity may be the first intellectual ability to go when impairment begins but it is not a sign that the person has no ability left for anything else. While it is true that many impaired elders grossly overestimate their own ability and insist on living in unsafe conditions, some elders are not as impaired as circumstances might suggest. Psychological testing can provide important objective data to help families make the right choices. Emma was willing to do whatever it took to stay in her own home. At 91, we at AgingParents.com thought she deserved that dignity, at least. Emma has regained her sense of control and we’re glad for her.
Carolyn Rosenblatt, RN, Attorney, Mediator
Dr. Mikol Davis, Psychologist, Gerontologist
