Jewish World Review Jan. 5, 2004 /11 Teves, 5764
Jan L. Warner & Jan Collins
Can you stop a double-dealing lawyer?; caregiver red flags
Q: Ten years after our father died, our mother remarried a man whom none of us trusted or cared for. We kept in contact with Mom when he was not there. After a time, she confided that he totally controlled the relationship. She knew she had made a mistake marrying him and was miserable, but didn't know how to get out of the relationship. We were even more concerned about her emotional and economic safety after she was diagnosed with dementia early last year.
Dad had formed a trust for him and Mom. When her banker told us that her new husband was trying to take over the funds, we stepped in to help, only to be met by a lawsuit he brought to get her declared incompetent so he could be appointed as her guardian. My siblings and I hired the same lawyer for our mother who had represented her and our father for years. When the court-appointed mental examiners ruled that Mom had poor memory and was vulnerable but not incompetent, her husband withdrew the guardianship proceeding and took her home with him against our wishes.
Not a month later, we were shocked to find Mom living in a residential care facility. Her money is gone from the bank. It seems that the same lawyer who represented her husband in the failed guardianship attempt had prepared documents that Mom signed in this lawyer's office that revoked her trust and gave full power of attorney to her husband. Is this legal?
A: We don't think so. First, it appears that your mother was sufficiently vulnerable and subject to undue influence that the transactions should be set aside. Second, and probably more importantly, given your mother's state of mind and the fact that her husband had sued her not a month before, your stepfather's lawyer should not have prepared, much less had your mother sign, any documents knowing that she had a lawyer representing her.
Bottom Line: This seems to us to be a clear violation of the Rules of Professional Responsibility, which prevent one lawyer from contacting or getting another person to contact a person known to be represented by another lawyer without consent.
Q: After our mother died, Dad lived alone until he became unable to care for himself due to physical conditions and forgetfulness. Wanting to respect his wishes that he stay at home and not be placed in a facility, we hired a caregiver to stay with him. He insisted that he continue to pay his own bills and although I have his power of attorney, I did not want to intrude on his autonomy. It's been six months now, and I'm concerned that the caregiver has been accepted by him as a member of the family. He does everything she tells him, and has become very secretive. I found evidence of large cash withdrawals from Dad's accounts that were taken when the caregiver took him to the bank. While we don't want to upset him, we need guidance on our options about how to deal with the caregiver and Dad.
A: In our view, the "red flags" waving are sufficient to justify taking immediate action before as has occurred in some situations the caregiver takes the vulnerable adult to a lawyer and gets a power of attorney.
Because of the seriousness and frequency of abuses of elderly persons with diminished capacity, we suggest that you 1) hire a certified public accountant and a lawyer to review the records and make sure you have the evidence, 2) confront the caregiver and terminate her immediately, 3) give the caregiver the opportunity to make restitution of the "loans," and 4) contact your local authorities concerning potential violation of vulnerable adult laws in your state.
Taking the Next Step: Although your Dad might not like it, we don't see that you have much choice. Because seniors like your father are susceptible to abuse, we believe those with caregivers should not have total control of their finances, and that families should keep a close watch on the relationship between the caregiver and the elderly person. The situation you describe is the reason more and more families are turning to geriatric care managers to oversee the care and caregivers chosen by homebound seniors. You can find out more information from the National Association of Geriatric Care Managers (www.caremanager.org).
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JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here.
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Seeking help for dementia victims
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powers of attorney or a living trust to manage our assets
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Slacker son will blow his fortune; lawyer's role in "estate-planning"
Mom remarried and spent my inheritance; doesn't want daughter-in-law to receive anything from estate
Can we stop our brother from swindling us?
What Gifting Will Disqualify You From Medicaid
The 'magic' language for a power of attorney agreement
Is care insurance a healthy choice?
Is there protection against Medicaid costs?
Long-term care insurance comes up short
HIPAA -- too much privacy?; nursing home doc could care less
Private pay nursing home residents pay more
Separated families should use care managers
What Makes Up a Caregiving Team?
Who is the client, parents or children?:
© 2003, Jan Warner