Shay Jacobson, RN, MA, NMG, LNCC, CNLCP
Martha M. Kern
It was an attorney who called us and rather bluntly stated: “I have a client here in my office asking me to draw up Power of Attorney documents naming his neighbor as Agent. I told him I’m not going to do it.”
There are many clients in the world who plainly lack an appropriate, willing person to serve as Agent under the Powers of Attorney. There are perhaps fewer attorneys as direct as this one was about their disapproval of plans to appoint an acquaintance, such as a neighbor, a family friend or a service provider, or even a geographically distant relative with whom the client has little contact.
The client at the heart of this phone call was a single male, in his early 60’s, who had never married or had children. His parents were long since deceased. He had no siblings. Understanding, of course, that it was in his best interest to have his affairs in order should he
suffer a medical setback, he went to his attorney with the only idea he could summon – appointing his neighbor to act on his behalf if the day ever arrives when he cannot act for himself.
The neighbor, if asked, may well have agreed to be named. Then again, the neighbor may not have been asked. We have certainly encountered scenarios where the named Agent was never told they were named, often leading to immediate resignations when the emergency call comes and the situation is finally revealed.
Aware of the appointment or not, the neighbor may be the same age or even older than the client, making him a less-than-ideal choice for the role. He may be called upon to make critical decisions or arrangements for the client when he himself is also suffering medical/cognitive issues.
Even if the neighbor is willing, younger and in peak health, it is difficult to determine if he really understands the scope of the job for which he is enlisting. The client may need quite a lot of attention and assistance, and it may occur at an inopportune time for the Agent. While we might suspend our day-to-day routines and exhaustively care for family members and other loved ones when the need arises, doing so for a neighbor may feel like an imposition that is just too much to manage.
The Chosen One
Max, a bachelor with no children, chose a woman who had been a friend of his family’s for many years to act as his Power of Attorney. Kathy seemed to be a logical choice at the time. She was younger than Max, a good, sensible decision maker in her own life, and willing. It was a perfect arrangement….until it wasn’t. Max and Kathy rarely saw one another. She was in the midst of a busy career which often found her on the road. They talked now and then, but not in great depth.
What Kathy could not know from her slightly distant position was that Max was not doing well at all. He was living in squalid circumstances and not eating very well. Increasingly, he was confused by everyday occurrences. On multiple occasions, Max drove himself to a nearby hospital, entered the Emergency Department, and explained that he was confused. They would admit him, work him up, and then, without a reason to keep him, send him back out the door.
Max probably never told Kathy about any of this. She did not learn about it until the hospital called Lifecare Innovations. They suspected Max was cognitively impaired but knew, by his own report, that he had no support system in the community. They wanted to halt the cycle of admission/discharge, so they contacted us with the hope that we could improve Max’s situation.
It appeared at the outset that Max was a probable candidate for guardianship. He did, however, recall that he had a Power of Attorney. On the day we finally reached Kathy, she was in New York. A member of her own family was ill and she was deeply involved in the care of this loved one. She had no idea Max was having difficulties. This confluence of events was too much for her and, despite Max’s protestations, Kathy resigned as his Power of Attorney. Lifecare Guardianship was appointed as Max’s Guardian, enabling us to move him from his filthy one-room apartment to an assisted living community where he was well-tended and safe.
Poor timing was a huge component of this plan failure. There was no way of knowing Kathy would be distracted with an emergency in her own family at the precise moment Max most needed her. It might have been anticipated, though, that she would be busy in her career, travelling for business, and otherwise engaged in her own life. Had Max been her father or even her uncle, things would likely have been different. But he was just a friend and when push came to shove, her family and her life took precedence over his needs.
Friends, neighbors, service providers, acquaintances – all well meaning, perhaps, but quite possibly unable or unwilling to drop everything and rectify a difficult situation with little warning for someone who is not immediate family.
Seizing the Day
A home care provider called us recently to ask if we could serve as Power of Attorney for a client in the company’s care. The caller explained that the client was an older female who lived alone in her house of many years. She had a Power of Attorney already, as it turned out, but was dissatisfied with his performance in this role. She had recently learned that he acquired five credit cards in her name and charged the maximum allowable amount on each one. He had also taken a mortgage on her fully-owned home without her knowledge and availed himself of the proceeds.
As the conversation progressed, the identity of the Agent was revealed: He was the son of the client’s hairdresser.
The client was fearful of the Agent and his mother, who was likely involved in the abuse, and did not want them to know she was seeking a new arrangement. As professional Lifecare Managers, we felt fairly certain that the client in the throes of this situation was not the only victim of these two. As a hairdresser for elderly women, it seemed quite likely that the stylist was listening to the stories of her aging, isolated clients and generously offering the services of her son to help them out. It’s possible they also had an attorney assisting them with the documents involved in this operation.
The client did not want to pursue the matter criminally; she merely wanted for the financial abuse to stop. It may be that she was embarrassed that this had happened to her without her knowing about it. She was hurt, disappointed and afraid. She was also saddled with new debt.
Family members have certainly been known to behave just as badly when put in positions of access and power. The poor economy has perhaps inspired choices people would not make under better circumstances. Whatever the cause, the victim needs a new Agent when these abuses come to light and, chances are, there are few if any people in their lives they will again trust with such a role.
The Corporate Alternative
Lifecare Innovations is the named Agent for Healthcare Powers of Attorney, and sometimes for Property Powers of Attorney, for a large number of clients who, like those in these examples, lack close persons in their lives who can be available to act on a moment’s notice when an emergency erupts. Unlike neighbors and family friends, we offer the advantage of 24/7 on-all services that invariably result in the caller’s access to skilled, experienced social workers, even in the dead of night or on Thanksgiving day.
Naming a corporate entity as Agent under the Powers of Attorney offers additional benefits as
- When a company is named in lieu of an individual, the client has access to multiple experienced professionals rather than having to rely on just one person who may be travelling, ill or living in Florida for the winter;
- A company is equipped with natural checks and balances, and abundant oversight. Rather than entrusting an isolated individual, a client can be assured that no one single person has exclusive, unsupervised access to their checkbook and accounts;
- A neutral, non-family Agent can also be a wonderful alternative when a flock of relatives is squabbling about who should be the named Agent for a client. We tend to see these skirmishes erupt when a client has a lot of financial resources;
- Our confidential electronic files enable us to remotely review a client’s expressed and documented wishes about medical procedures and end-of-life issues at any time of the day or night.
It has been our observation that many of our guardianship clients postponed their POA designations when they were competent, not because they didn’t realize they needed to make these choices, but rather because they could identify no viable candidates from among the people they knew. So they waited….and they thought about it some more…..and they waited….and then they lost decisional capacity and never had an opportunity to choose their own decision-makers.
Whether the client’s prevailing issue is a lack of trustworthy adult children, geographic distance from loved ones, ongoing or past exploitation, or a simple shortage of known, trusted and willing individuals, a corporate Agent can be a powerful option in an estate planner’s toolbox.
©Lifecare Innovations, Inc.