Part 3 of Of A Three-Part Series On Elder Abuse That Appeared In The Taconic Press Papers And The Independent, August 2006
Brooke Astor's name is one that brings to the public's attention a problem faced by thousands. Mrs. Astor, the 104 year old philanthropist, is under the legal guardianship of her son, who is now alleged by his son, her grandson, to be abusing her, both by neglecting her physical and psychological needs, and by misusing her funds, which are under his control. This case reflects the issues of elder abuse recently discussed in this column. When a person, by virtue of their mental incompetence, becomes at risk of harm to herself, physically, financially or otherwise, then someone, if not a relative or friend appointed by the person, then someone court-appointed, must step in to function as their guardian. If the person vested with legal power misuses it, then what can you do? The means of granting power, and of challenging elder abuse perpetrated through those powers, are discussed below.
Ideally, the individual, while legally competent, will vest in someone trusted the power to assist them in personal and business matters if they later decline in competence. An individual can give another the power to collect government benefits as representative payee, or to pay bills by writing checks from a household expenses account, or more broadly to engage in legal transactions, handle litigation and taxes, or any other responsibilities enumerated in a power of attorney. For medical care decisions, the individually will appoint a health care agent.
In New York State, use of a Power of Attorney is provided for under the General Obligations Law. Standard forms of these powers are set forth in the statute, and the form can be purchased or obtained in consultation with an attorney. These standard forms are not mandated, however, thus attorneys frequently modify the forms as appropriate to the client's needs (e.g., including authority to declare the principal's "intent to return home" for the purpose of preventing the home from becoming immediately subject to a Medicaid lien). Whether you choose to do-it-yourself or consult an attorney, you must fully understand the scope of the powers you are granting and the fiduciary responsibilities of the agent to the principal.
A Power can be durable, non-durable or "springing"; it can appoint one agent or multiple agents with the power to act only jointly, or jointly and severally. If you are buying a home but can't attend the closing, you might give your attorney or another person a non-durable power, one that would be effective just for that transaction. A durable power becomes effective upon its execution and continues notwithstanding any subsequent incompetancy of the principal. In contrast, a "springing" power is so-called because it does not become effective until the principal is determined to be mentally incompetent in a written declaration(s) made by the person(s) designated to make such determination (usually the principal's physicians). A Power can be revoked at any time while the principal is still competent, either expressly (e.g., the execution of a successor power), or implied through the principal's words or actions. The Power, no matter what its form, terminates at the death of the principal. A Power must be executed before a notary, but is not required to be witnessed. The agent does not have to sign the Power in NYS, and can decline to act as agent if called upon. Generally, you would execute multiple originals because banking institutions and others may require an original copy.
The agent is a "fiduciary" and owes the principal the duty of loyalty and scrupulous attention to the principal's best interest, and not in conflict with it. Granting an agent power does not reduce the inherent power of the principal to act for herself; the powers are simultaneous. The agent's power to act on the principal's behalf is only as broad as stated in the Power. New York State's "short form" is so-called because its long list of stated powers (which can be individually selected or rejected) are actually defined in the General Obligations Law, and therefore only by referring to the law will you actually understand what powers you are granting. Depending on what power you are granting, there may be more restrictive ways to accomplish your goals (e.g., writing household checks) than using a Power. It is very important for the principal to have taken the time to discuss her expectations, preferences and concerns with the agent, and for the agent to understand the significance of the responsibility. "Malfeasance" (the miscarriage of duties), abuse or neglect, can result in the power being terminated and the agent being prosecuted.
An agent under a Health Care Proxy is one that can make health care decisions for you in the event, and not until, you become incompetent to make your own health care decisions; unlike the Power, this agent's authority is only in the absence of, and not simultaneous with, the principal's capacity to decide. There is a form prescribed by New York statute, and it is available from the NYS Office of the Aging. The form is simple: its states the name of the principal; the name of the agent (unlike the Power, there can be only one agent at any one time, though a successor agent should be named in the event the first is unavailable); and that the agent is authorized to make health care decisions on the principal's behalf. It must be witnessed by two people, neither of whom should be an agent. The scope of this power does not include decisions concerning the administration or withholding of artificial nutrition or hydration.
The tragic case involving Terri Schiavo highlighted the importance of articulating your directives, ideally in writing. A "living will" is often confused with a Last Will and Testament. A "living will" expresses your wishes concerning the administration of life-sustaining treatment if you are in a terminal state or determined to have suffered brain death and are not capable of communicating these wishes because of your mental condition (e.g., in a coma from which you are deemed unlikely to recover). The principal's decision to forego life-sustaining treatment under these circumstances must be demonstrated by "clear and convincing evidence"; the health care agent does not have the power to exercise substituted judgment. The principal's desires must have been expressed to the agent, and thus can been communicated orally; but a properly written "living will" may be recognized as "clear and convincing evidence". There is no one form prescribed by statute, but forms commonly used in NYS can be found at www.nysba.org, and some attorneys, myself included, incorporate living will provisions into the form of health care proxy.
The term "guardianship" is now a household word thanks to Mrs. Astor. Guardianship is either "of the person" or "property", or both. An individual can appoint an agent under a power of attorney with respect to non-health care personal, financial and business decisions; however, these decisions would generally not include the physical care of the individual except to the extent such care can be obtained through exercise of the financial powers (e.g., using the principal's funds to help provide such care). In the absence of a self-appointed agent, or if that agent is not fulfilling their required duties responsibly, court intervention may be required.
The process of appointing a guardian involves the filing of a petition with the court and requires notice to various required "interested" parties, including the anticipated ward herself, who must attend the hearing (with very limited exception). Article 81 of the Mental Hygiene Law of NYS sets forth the standards used for determining whether the person is incapacitated, and the tests for determining if a guardian is necessary. The goal is to allow the ward to retain as much autonomy as possible, while ensuring the person's physical, psychological and financial well-being. The guardian might have the power to protect the entire financial estate, or just certain property, or they may be a guardian "of the person" with the power to determine the ward's housing, standard of living, medical treatment, and other aspects of daily living, or both. The substantive law and procedural issues are more complex than can be described here, but are designed to determine the ward's capacity to maintain the autonomy to care for herself and her property, and then to vest in the guardian only those powers necessary to protect the ward and her property.
At the request of the Senate's Special Committee on Aging, the U.S.GAO issued a July 2004 report entitled "Collaboration Needed to Protect Incapacitated Elderly People". As the report states: "The number of people age 65 and older will nearly double by the year 2030 to 71 million. An estimated 6 percent of people aged 65 or older have Alzheimer's disease …. The Census Bureau predicts that in the future the elderly population will be more likely to live alone and less likely to have family caregivers. In situations such as these, additional measures may be necessary to ensure that incapacitated people are protected from abuse and neglect." (GAO-04-655 Guardianships, p.5; www.gao.gov/new.items/d04655.pdf). The report reviewed the individual states' guardianship statutes, and surveyed the guardianship programs in California, Florida and New York to determine what problems may exist and to suggest needed improvements. One area surveyed concerned the imposition of penalties on guardians. Whether because of differences in the elderly population, guardian qualifications, monitoring mechanisms, or otherwise, the NYS courts surveyed apparently imposed penalties on guardians in far fewer instances than California and Florida's courts. (See pgs 80-81 of the Report). The ability to monitor guardianships is as important as the establishment of them.
To improve the process of appointment and the court's ability to provide for and protect the interest of the ward, Chief Judge Judith S. Kaye of the New York State Court of Appeals (the state's highest court) announced the establishment of a Model Guardianship Part in Suffolk County. This model incorporates changes designed to improve the process for the benefits of the incapacitated and those caring for them by: maintaining pending cases before one judge, who would therefore become more familiar with the ward and the parties; using mediation to facilitate the resolution of disputes among family members; providing specialized training for family-member guardians; giving immediate attention to allegations of abuse by guardians; using volunteers to monitor the ward's status; and instituting stricter oversight of the guardian's compliance with reporting and accounting responsibilities. (See H. Patrick Leis, III, "The Model Guardianship Part: A Novel Approach" in NYS Bar Association Journal (June 2006)). The experience gained from the Model can later be applied to improvements throughout the state.
Educating yourself about personal legal affairs makes you a better-informed client. Accordingly, this discussion provides an overview of the subject, and does not substitute for consulting with an attorney. To learn more about creating a Power of Attorney, Health Care Proxy, Living Will, or Guardianship, see www.oag.state.ny.us/seniors, www.guardianship.org; www.abanet.org/aging, and numerous other on-line resources.
If you have reason to believe that a senior may be subject to elder abuse, whether physical, financial or otherwise, you do not have to become directly involved to help. If you suspect that the senior is at risk of immediate harm, you should call the Police. However, if you are concerned about an ongoing but not emergency situation, you can contact your local Department of Social Services and ask for Protective Services for Adults (PSA). You can call New York State Office of Children & Family Services (M-F) at 1-800-342-3009 (press option 6) to find the nearest PSA office. You do not have to be sure that there is a problem, only a good faith belief that there may be. Your report can be made anonymously. If you do not see any improvement in the situation, call again - it might make a difference in someone's life.