Saturday, June 9, 2012

Learning from mistakes

As part of my elder-law practice, I subscribe to several 'list-serv' groups and learn from experiences of others.  On one recently was a question about whether someone was competent to grant a power of attorney.  It brought back a painful memory, which I related to the list-serv and copy here.  The more that can learn from my experience, the better.  The post:

Sometimes we learn the hard way. A personal experience.

Years ago in the early days of my career a couple came to see me with their daughter. There was discussion of a power of attorney and the growing disability of the parents to cope with their day to day needs. I 'helped' the daughter talk the parents into granting her agency through a power of attorney.

Six months later I got drafted by the Court (on petition of Social Services) to become guardian for these same parents as the daughter had fairly well cleaned them out. All money was gone, there was an equity line mortgage on their -- previously -- paid for house, that money spent also. She had let a drug dealer 'borrow' their car and he refused to voluntarily give it back. I had to place the people in an Assisted Living Facility and sell the house. (The Court also entered a $65,000.00 judgment against her for defalcation)

The husband -- by now in full blown dementia -- was aware enough that he knew he was going to lose the home he had worked very hard to buy and pay for. He stopped eating. He stopped drinking any fluid. He actually willed himself to die and did. The mother lived on for another few years in Assisted Living.

I never want to repeat that experience or lose sleep that way again.

If it's marginal, then I don't do it.

When I draft a power of attorney, it must be signed in my office and I must meet with both the principal and agent(s). I go over the rules governing POA's and was the first lawyer in my area to give the agents 'rules' to govern their actions under a POA. You can find them here. In my opinion, drafting a power of attorney and NOT giving instructions/rules is malpractice.

Frequently a doctor sees and evaluates individuals for a brief interval, some don't even do a 'mini mental' test. To really evaluate takes a specialized approach - in the Roanoke area we have the Center for Healthy Aging, part of Carilion Clinic. Doctors also do not understand the legal standards and implications of 'competency' unless it's for purpose of consenting to treatment (and even that can be dicey). When I started practice, a doctor's evaluation was a one-sentence letter that said "Irving Puffuffnick has been examined by me and needs a guardian". Now we have a checklist of things the doctor must address in his report.

We are part of the checks-and-balances in the system trying to protect feeble senior citizens.

Trust your gut.

If you suspect someone's taking advantage of a disabled individual, let Adult Protective Services know; contact (other) family members, call the police, contact a lawyer.