Articles Posted in Elder Law

Yesterday we discussed the various programs, agencies, options available to help families with aging seniors. In addition to assistance programs, it is important for caregivers of older adults to make sure that their loved one’s wishes will be met at the end of life or if the older adult becomes mentally incapacitated. Preparing for management of finances also is important. These matters can be addressed in the following documents–

Living Will- a living will is a written statement about an individual’s wishes regarding medical treatment should he or she become incapacitated. This includes statements about a person’s wishes regarding “Do Not Resuscitate” (DNR) orders, intubation, feeding tubes and hydration, and other critical care matters.

Health Care Proxy (also called Durable Power of Attorney for Healthcare)- The Health Care Proxy is a written document where the older adult appoints someone he or she trusts (such as a family member or close friend) to decide about medical treatment for the older adult if he or she cannot make that decision. The agent is instructed to act on the older adult’s behalf and in his or her best interests.

When American Top 40 legend Casey Kasem’s daughter, Kerri Kasem, appeared in front of a Los Angeles County Superior Court Judge this past Monday, she told the Court she believed her 82 year old father had been “kidnapped“. Prior to the disappearance the radio icon, who suffers from Lewy body dementia, had been residing in a Santa Monica nursing home receiving 24-hour medical care. Kerri Kasem feared that removal from the nursing facility allegedly by Kasem’s wife, with whom Kasem’s children had been involved in a long-time feud, threatened his health and safety considering his medical condition. Kerri Casem was immediately granted a temporary medical conservatorship, filed a missing persons report with the Santa Monica Police Department, and Kasem was ultimately located on Wednesday in Washington State with his wife. Kasem’s children suspect Jean absconded with their father out of fear that they would coerce him into changing his will.

Casey Kasem’s family saga is a public and an extreme example of how contentious familial relationships can become when disagreements as to the health care of an older family member arise. Medical Conservatorship is a legal concept in the United States where a guardian is appointed by a court to manage the healthcare decision-making concerning an incapacitated or individual. As explained by the New York Department of Health, an individual is determined incapacitated when an attending physician finds to a reasonable degree of medical certainty that the patient lacks ability to understand and appreciate the benefits, risks and consequences of proposed health care. The individual must be able to make an informed decision as to health care. If an individual already has in place an advanced healthcare directive, the decision-making about the individual’s medical care in the event of sudden incapacity, or incapacity due to old age, is already taken care of.

But oftentimes, there is no directive document. That is where the conservatorship arises. Conservatorship is a legal arrangement that requires appointment by a court, granting authority to a legal decision-maker to act on behalf of the incapacitated family member. In addition, a conservatorship provides a legal process where major healthcare decisions, for example removal from life support, must be approved by the court. In the absence of a healthcare directive, conservatorship grants family members a clear legal determination of authority when it comes to medical care of an incapacitated family member.

There is growing discussion about elder caregiving in America and across the world. As the population ages, much more attention is being paid to how seniors are treated when their health falters and their ability to care fully for themselves wanes. In general, there is a rough assumption that many cultures around the world have closer family units, while here in the United States we are more likely to pay professional caregivers.

That assessment is somewhat misleading, because even in the U.S., younger generations (adults children) continue to provide the majority of care to seniors. That is not to say that use of nursing homes, assisted living facilities, and at-home caregivers is not common. But, elder care is simply a reality for tens of thousands of families throughout New York.

Who is Providing Care?

Seniors suffering from Alzheimer’s disease or dementia are at an increased risk of financial exploitation. Each health condition results in a progressive cognitive impairment that can be taken advantage of by the unscrupulous. As a recent true story from Massachusetts illustrates, Alzheimer’s disease can render seniors susceptible to even the most strange of schemes.

A 74-year-old Massachusetts woman suffering from progressive dementia and living in a nursing home has a pet named Puddy Cat. Puddy Cat is so dear to the woman that she created a trust in the animal’s name worth nearly half a million dollars. This “Puddy Cat Trust,” created in the woman’s will, provided that, upon her death, Puddy Cat was to be cared for through the trust and that all remaining assets were to be used for the benefit of animal welfare groups.

Seeing an opportunity to profit at the expense of the woman and Puddy Cat, two neighbors made efforts to befriend the woman and offered to take care of the feline. The pair are accused of swindling the woman out of her life savings, and Puddy Cat out of its inheritance, and they have been charged with embezzlement, larceny, intimidation, and perjury. They allegedly gained access to the woman’s financial assets and bank accounts, withdrawing nearly $200,000 in a 12-month span. The money was not used to care for Puddy Cat, as the two promised, but rather for a prolonged spending spree.

Adult guardianship concerns the laws governing a person’s capacity to manage their own affairs and their own estate. The law presumes that a person possesses this capacity. Therefore, satisfying the legal criteria sufficient for a finding of incapacity is prerequisite to the formation of a guardianship.

Capacity

There is no single, universal definition of capacity. Often, the term “competency” is used interchangeably with capacity, though the modern trend is to prefer the latter. The meaning of the word derives from the context in which it is considered; it cannot be determined in the abstract. An individual’s capacity or incapacity generally must be determined in relation to his or her ability or inability to perform a specific function or act. Because an individual is capable of performing an astonishing number of different functions and acts, a person may have the capacity to do A, B, and C, but not X, Y, and Z. Further illustrating the complexity of the concept is the fact that capacity may be defined differently, depending on whether the context is legal, social, or medical. In terms of legal standards, a determination of incapacity requires clear and convincing evidence that a person is likely to suffer harm because: