Tuesday, December 25, 2007

Freedom or Folly: Who Is or Should be In Charge?

The New York Times article about an elder scam or elder caper, depending on your point of view, raises a lot of excellent questions about the degree of intrusion the so-called able should have in the affairs of the not so able older person.

The story is familiar: an older person with a reasonable amount of money decides to undertake one or another project and ends up loosing all of his or her money. The loss is often due to a combination of larceny on the part of those who are aiding and abbeting the project and more importantly, of the freely chosen desire of the older person.

Benny Kass, who writes for the Washington Post on a number of related topics, described the process for the appointment of a conservator where a grandchild is worried that Grandma is spending her money foolishly. And yes, the courts will perform a thorough inquiry into the question of whether Grandma is really so incapacitated that she can no longer handle her money.

But how do we decide, before Grandma or Dad lets their bills go unpaid and a huge mess accumulates, that he or she is spending their money foolishly, or associating with flatterers who are actually trying to fleece them?

Example, Grandma has a tidy investment, she is well cared for in an assisted living facility. She is lonely and a very nice handyman befriends her. He fixes all of the equipment in her apartment, repaints her living room, to her delight, takes her on shopping trips to buy a new rug, he takes her out to lunch on these trips (of course, she pays the bill), visits often and entertains her. She really loves being with him. She would much rather be with a younger person than the doddering biddies in her facility.

Everyone in the family, all of whom live across the country, is delighted at first. Grandma has a companion who seems just right for her and who is useful to boot. Gradually, of course -- you can see where this is going -- disquieting signs begin to appear. Grandma wants to buy him expensive presents, wants to help him with his medical bills. She has a certain amount of dementia, but on the surface has nothing alarming.

What are family members to do? They have their own lives, children, jobs, friends, in their home towns, far away. Do they visit and take Grandma to visit a gerontologist? Get an evaluation of her mental capacities? One grandchild will argue that Grandma has the right to spend her money as she sees fit, it's hers afterall, and it gives her a pleasure she would never find elsewhere, to shower gifts on her new found friend. A son will argue that the handyman is taking total advantage of his mother, that he needs to be run out of dodge and that a conservator should be appointed to manage her money. A daughter will argue that she has the power of attorney, that she can step in a control Mom's spending.

Mom is flabbergasted at the concern of her children and grandchildren. She retreats into anger. Children, becoming more and more concerned, hire a lawyer. Lawyer advises that they should seek the appointment of the nearest living child as conservator and guardian. They file the petition and get Mom's internist to state that Mom has enough dementia to be incapacitated as defined by the law. Mom gets very alarmed, stops trusting her children, hunkers into her friendship ever more tenaciously. The court appoints a attorney to represent her.

The story ends in tragedy. Mom is alientated from her children; handyman is more closely entrenched in Mom's heart; even if a conservator is eventually appointed, the conservator inherits the problem: how far should he or she go in yielding to the desires of his or her ward? The law mandates that the conservator and or guardian provide the maximum amount of self-determination to the ward.

The children put pressure on the conservator to get rid of the handyman. Mom of course, begins to dislike the conservator and becomes ever more anxious, angry and ensconsed in her idea that she and her handyman should buy a house together and he will take care of her.

Assume that she is able to buy the house and Grandma willingly and happily puts the handyman's name on the deed.

If she were to later change her mind or if her children wanted to reverse the deal, what legal recourse would they have? Can Grandma or the children claim that her dementia should excuse her from her bad deal? If a child can get a contract voided for lack of capacity, can a dementer older person get the same benefit? How can the older person prove that -- despite their desire to enter into the transaction -- they lacked the judgment to do so and a court should void the deal? Does it make good public policy to allow certain states of mind a pass on the liability of freely chosen but later regretted transactions? Where does a legislature and then a court draw the line.

An alternative scenario is for one of the children to bring Mom to live with them. They shower her with love. She loses interest in her handyman as she plunges into the world of her grandchildren.

There are, of course, many other scenarios that could play out. Grandma here is lucky to have children and grandchildren. Many elderly persons have no one. The unscrupulous can take advantage very quickly.

The fundamental questions remain: how to balance the competing interests of the individual, the family (if there is one), the sanctity of contracts freely entered into, the medical and legal definition of incapacity that could help to define the boundaries of a new legal opt out. If medicine and law find that a line can be drawn, what are the risks of endless litigation?

On the more human level, what right does a child (heir or legatee) have to direct the way their parent lives their life or spends their money? Where does love and responsibility intersect with a parent's need for and right to autonomy? How healthy is it for a child or social worker or attorney or conservator to say, "I know better what is good for Grandma than Grandma herself" regardless of her "mental capacity" or judgement? How can an elderly person be protected from the wiles of the unscrupulous, when the elder person is gaining tremendous pleasure in the company of that villain or in donating large sums to televangelists? Should they be protected from themselves? At what point?

The longer we live, the longer we will enter into dementia, the more children and professional caretakers will be called upon to care for aging parents and the more difficult decisions will have to be addressed. With love, compassion, self-awareness, a sense of humor, and a dollop of common sense.


Judith Shapiro said...

An adult at 33 can "squandor" their trust fund on any scheme, dream, affair, or adventure that they want. An adult at 83, with potential heirs salivating and breathing over their shoulder has no such freedom. The right to folly is, indeed, one of the greatest rights of all.