The Elder Law Coach

Balancing Autonomy and Protection: Navigating Elder Law and Guardianship

• Todd Whatley

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This episode explores the delicate balance between protecting the rights of elderly clients and preserving their autonomy in light of diminished capacity. Todd emphasizes the ethical responsibilities of elder law attorneys to advocate for their clients and the importance of legally empowering them through comprehensive powers of attorney. 

• Understanding the implications of diminished capacity 
• Importance of advocating for client autonomy 
• Ethical duties of elder law attorneys 
• Role of powers of attorney in preserving rights 
• Common issues faced with powers of attorney 
• Necessity for proper client education and communication 

Please visit the elderlawcoach.com website.

Trisha's Contact is 479-802-4767 and Trisha@TheElderLawCoach.com

Check out our new website www.TheElderLawCoach.com.

Speaker 1:

Thank you. Specialized experience, Whether you're an established attorney looking to refine your expertise or an emerging lawyer seeking a successful foray into elder law, this is your masterclass. Now let's get started with the luminary in the field. Here's Todd Whatley.

Speaker 2:

That's right. This is the Elder Law Coach. My name is Todd Whatley and, as always, I am extremely appreciative that you have joined me again today, and I've been getting some really positive comments from my podcast, and that just absolutely makes my day, knowing that all of this time and effort is not for nothing and people are actually enjoying this, and a few people last week told me this had kind of changed how they do their practice, and so that's exactly not that I want you to change. I want you to improve, and if improving means changing by George, let's do it. So today I may step on a few toes. All right, it's okay, we can get past this, but just understand, I've been doing this for 25 years and not that everything that I do is absolutely correct. Done this for 25 years and not that everything I that I do is absolutely correct, and, um, I am not open to um criticism or suggestions, but I'm just saying this is one of those things that I am extremely um passionate about, and I think, as an elder law attorney, you should also be passionate. And I think what's most interesting is, I don't think a lot of people get it right, particularly non-elder law attorneys, some judges, and that is dealing with diminished capacity. And yes, I know I've done a podcast on this before and it's been very popular and people have listened to it. But I just kind of want to go through in general as an overview of this and just talk about how we must, as elder law attorneys, fight for the autonomy of our clients. And I just see consistently where, when someone has been diagnosed with dementia, alzheimer's, whatever, instantly everything changes and it's like oh, they have dementia, so therefore they can't sign documents and we shouldn't be talking to them and let's just take over their life and let's decide everything that they do. And it's like no, no, no, no, no, no, no.

Speaker 2:

We as elder law attorneys well, attorneys fight for the rights of our clients and I always relate this back to criminal law. When someone's been accused of a crime, many times the penalty for that is we take away their freedoms, we put them in jail, in prison, and that is their punishment is taking away rights. And for us to do that to an American citizen. We have implemented a ton of protections for these people. Okay, justifiably, you've been accused of a crime. We as a society are wanting to take away your rights and we have implemented a number of protections the right to remain silent, the right to have an attorney appointed for you if you cannot afford that. This is so important that you do need an attorney, and if you can't afford one, one will be given to you at the cost of society to protect you. And a jury must be unanimous and beyond a reasonable doubt Not just any doubt, but a reasonable doubt. You know there are all of these protections and appeals. You can appeal it, and so there's just all of these layers and layers and layers of protection, which I'm not fussing about, I'm all for that.

Speaker 2:

But when it comes to an older person who's now been diagnosed with dementia, it's like, eh over, they lose their rights. We're going to get a guardianship and be done with it. No, a thousand times, no, that is not how this should be happening. But it is what is happening across the country. And you know, sometimes I feel like a lone voice in the wilderness screaming about this and saying, no, this is not how it should be done.

Speaker 2:

Okay, so let's just start out with autonomy. We are to seek and maintain the autonomy of our clients, and just because someone has been diagnosed with some kind of cognition issue doesn't mean we take away their rights. They're still able to do many things and many times the initial diagnosis no one knows what's going on, except for very close family. You know they can still function, they can still do things, although they have the diagnosis of dementia. And there is a very delicate balance here between protecting their interest, okay, and particularly as the dementia gets a little worse and they forget to pay bills and they're very easily influenced by scammers and sometimes family members are those scammers. You know being very unduly influenced to pay for things, give away things and just be taken advantage of and taking away their autonomy. So we need to protect them, but we don't need to take away their autonomy or their independence, okay. And so we want people to still be able to have independence, not have to go to court and all of their rights taken away from them in order to simply protect them from someone or to simply be able to write checks for them.

Speaker 2:

Okay, I think it is the ethical responsibility of attorneys, and particularly elder law attorneys, to prioritize client autonomy whenever possible. Absolutely, go to great links and our ethical rules actually say and if you've not read the rule on diminished capacity, go read the rule and focus on those comments. Okay, the rule and the comments are very clear that we are to take steps to foster independence in our clients, to foster the ability to be able to sign documents, to do things, and it is in our ethical code to protect people, to maintain their autonomy as much as possible. If absolutely a guardianship is the only thing we can do, if they are truly incapacitated and we need a guardianship, sure, let's do the guardianship, but my complaint is I think that is reached way too early. Okay, and I'll go through that soon. How we do this, how we protect people, is there are legal instruments there to safeguard autonomy.

Speaker 2:

Safeguard autonomy, all right, and early planning is crucial. I spend almost all of my spare time, my marketing budget, everything is to get this done early. Please come see us early. Let's get some documents in place and the primary document to do that is powers of attorney, both financial and medical, along with advanced directives. Okay, we need to get people into the office. We need to get them in and convince them that they need to do a power of attorney, and I think if an elderly or you know, I'm saying elderly, but if, pretty much, if any client leaves your office without doing a power of attorney, you've not done your job well. I know that's a bold statement, but it's true.

Speaker 2:

I think everyone over the age of 18 needs to have a power of attorney in place, particularly someone who is over 50, 60, 70 years old. It is crucial. They will spend some time incapacitated, unless they just drop dead, have a stroke that you know absolutely immediately renders them incapacitated, or some accident they fall, hit their head, car wreck, whatever You're going to spend some time incapacitated, and many times. That progression to incapacity is not sudden. Like I just mentioned, it's a progression, and trying to figure out when in that progression should we jump in and take over is difficult. It's difficult from a practical standpoint. We don't want to do it too early. But then if we know it's time to do it, but the person themselves still thinks they're okay, they don't think anything's wrong with them, the rest of the world is crazy. Trying to jump in and do what needs to be done to protect them without taking them to court becomes a problem, and all of that can be solved with an immediately effective power of attorney.

Speaker 2:

Okay, so we do a power of attorney and I convince my clients look, if you trust this person that you're naming as the agent to be your agent. If you trust them today, you should trust them always, okay, not just when you become incapacitated. Let's have them step in and start doing things. Let's have them out there ready, willing and able to do things immediately. They're not going to do anything While you can still sign checks and do things. They're busy, I'm sure, and they're not going to get too busy-bodied in your life. They have a life. They're going to do things, but when they need to do something, there's no other hoops to jump through and they can just step up and start doing it. So one of my recommendations is absolutely do an immediately effective power of attorney so we don't have to spring it to life Okay. A properly prepared power of attorney will help save this person's estate, save their dignity, save everything, and I encourage you if you are using your state's statutory power of attorney.

Speaker 2:

The ones I've seen are all very similar. There's typically a list of powers you can check to say, yeah, all of these basic powers, but then many times there's another section that says, hey, these are like superpowers, and that's what I call them when I'm telling my client okay, these next seven are like superpowers gifting, changing beneficiaries, closing bank accounts, things like that. I call those superpowers and I'm like look, I highly recommend that you initial those seven superpowers because we want the agent to be able to do whatever needs to be done. And once someone explains to them the importance of gifting, the importance of closing bank accounts, particularly if they're being scammed and we just can't get them to not stop writing checks to what they think is the Nigerian prince, you know we've got to jump in and do something, and how we do something is we jump in and close the bank account, shut it down, move the money where they can't get to it and it is therefore protected. Okay, so a very comprehensive financial power of attorney authorizing all of the powers is absolutely crucial.

Speaker 2:

Do a guardianship because, between your financial power of attorney and your healthcare power of attorney, your agent has the ability to do whatever needs to be done in any situation. The two times that we may need to do a guardianship is number one if a person won't stay where they need to stay or go where they need to go, meaning typically nursing home. If everybody says look, ms Jones, you need to stay in the nursing home, she got there because she went into the hospital. Some injury, illness, whatever, put her into the hospital. Then they went from the hospital to the nursing home under Medicare rehab and she did not progress like they thought she would. Then she would need to stay in the nursing home. She's like nope, I'm not staying, okay. Well, that's a situation where if she absolutely is insisting on walking out the door, then we may need to do a guardianship to take physical control of her without kidnapping or unlawfully detaining her. We get a guardianship so we can say, no, you're not leaving, okay, or you go. If they don't go when they need to go, they're at home. They need to go to the nursing home and they've almost burned the house down. They keep falling, they're not bathing, they're not taking their meds, whatever and they won't let anyone in the house. You know it's just a bad situation and they need to go to the nursing home but refuse to go. We would need a guardianship to do that, okay. The second situation that I see, where sometimes I'm like you know, I hate it, but we need a guardianship.

Speaker 2:

I call it the serial POAs. This is when typically a mom, sometimes a dad, but the older person is being unduly influenced by different children to create a POA for them. Okay, meaning, you know, ms Jones comes to me with child A, we sit down. You know, I've seen child A out of the room. I'm like, ms Jones, um, do you trust child A? Yep, she's good, she's been there helping me, she's fine. I'm like do you have other children? Yeah, but they're, they're not that involved in this one child. This one child has always quote borrowed money but never paid it back, or is always needing things or doing things. And this child A does protect me and I think this is a good idea. I'm like, okay, great, let's do it. So we do that power of attorney.

Speaker 2:

Well then, a few weeks later, child A calls me and says hey, child B took mom to another attorney and she did power of attorney appointing child B Bring mom back in, I'll talk to her and I'll bring them back in. She's like, oh yeah, I didn't want to appoint child B, but you know, they just said they would stop coming to visit, or they said they were about to lose their house, or you know some sob story, why they needed money. And so she appointed child B as power of attorney. I'm like, well, you told me the other day, a is the best choice. She is the best choice. But I just felt I said, okay, well, let's appoint child A again, let's get rid of that power of attorney, okay, good. And so we do it.

Speaker 2:

And then child C or child B comes back and it's just back and forth and so that she's doing POA after POA, after POA or serial POAs. In that situation where I just can't get her to stop doing it or stand up to those children, sadly we have to go to court and say, judge, this lady's really not incapacitated. And in Arkansas that would be known as a conservatorship to say, judge, we just need you to supervise this and know that this can't be changed unless people come back to court and convince you that it needs to be changed. And so that is a conservatorship. I don't like it. But it is one of the two situations where we do need to do guardianship.

Speaker 2:

I think everybody understands the thresholds of establishing a guardianship, which I think is pushed on the low side. I've had full meetings with people who come into me. It's like, yeah, I want to appoint this child as POA and we have a very good, full conversation and she completely understands everything that's going on and I'm like, okay, this makes sense. And then somewhere in the meeting she's like does it matter that I have a guardianship over me? And I'm like what? She's like, yeah, a few years ago my son got a guardianship over me and I was like, okay, but you're fine. She said, well, they said I was diagnosed with dementia and so they needed a guardianship. So say, I'm not just making this up, I'm not just complaining, I'm saying this happens all the time. And I was like, but you're fine. And she said, well, I didn't contest it. And the judge was like, yeah, she has dementia, so let's do a guardianship. I said, yeah, that matters, I can't do anything because with a guardianship, chances are you don't have the power to do this. And so I forget what happened. This was, you know, the most blaring situation was quite a few years ago and it's just like, yeah, this happens all the time and it's just, it's extremely frustrating Drafting POAs again.

Speaker 2:

Let me just kind of get back to that. I have notes here and I don't follow my notes like I should. I get off on tangents. I just covered point four in, I think, point one. So anyway, point four is drafting powers of attorney to support autonomy. Okay, make the powers of attorney very comprehensive, very encompassing, so that anything that needs to be done can be done by the agent.

Speaker 2:

Now let's talk about agents. Who needs to be the agent? Well, for the financial power of attorney, this ideally is a child that is nearby, but with today's technology, the financial agent doesn't have to live nearby. The financial agent doesn't have to live nearby it's convenient, but they don't have to. With online banking and overnight, you know FedEx and emails and all kinds of things An agent can function fairly well from a distance without having to be right here. But it is very convenient to be local to check the mail and you'll go to the bank with mom or dad or whatever. So it is convenient, but it's not necessary. But this person needs to be good with money. They need to be responsible, they need to recognize that a bank account's getting low or be able to anticipate bills coming. I mean they need to have some financial mindfulness to take care of mom or dad's money or their friend's money, whoever they appoint as the financial power of attorney.

Speaker 2:

I do separate healthcare powers of attorney because many times the person who's really good with money may not be the person that you want to be deciding if you live or die, or telling you know the doctors what to do. I've seen a whole lot of families where one child is financial they're a CPA, bank or whatever, and they're very good with money and then the other child goes the opposite direction, is really good in science, you know medicine or whatever. They're doctor, nurse, you know some kind of medical person. Well, that just makes sense. Let the one child be the financial power of attorney, let the other child be the medical power of attorney. So I think it's our job as attorneys to help, you know, encourage this and you know, walk with our clients through this situation to say this is what we're going to do, this is how we're going to do this, and give them ideas exactly on what to do. Okay, so I think that's our job. It is important to educate clients. People think, oh, I don't need a power of attorney until I need it. Well, it's too late once you need it. Okay, and you know, open communication within the family is crucial and when I do presentations, I always talk about power of attorney.

Speaker 2:

And just quick story, quite a few years ago, during COVID, I was doing an online version of my in-person Coffee with the Pros, and so people had signed up and they all joined by Zoom and everybody was there. And so I told them I said, hey, y'all have always wanted to see how I do Coffee with the Pro. I'm doing it online. Let me send you a link. And they're like yeah, we'll be there. And so they showed up and you know, they were just watching and they were quiet. And I told him I said, after we're done with this, send call, stick around, let me know what you think. And they're like okay. So I did the whole thing. It was about an hour long hour and 15 minutes or so and all I do is answer questions. You know, people ask questions and I answer it and back and forth. And so we got through and I was like okay, thank you, bye.

Speaker 2:

And so those two ladies stayed on and they just they brushed out laughing. I was like what is so funny? And they said we were just texting each other. They weren't sitting together, they were in different locations also and they said we were just texting each other. It's like, todd, the answer to any question is you need a power of attorney? And I said, no, it's not. And they're like yes, todd, every situation, you know, it doesn't matter what they ask about, you were always able to steer it back to. You've got to do your power of attorney, she said. They said it didn't seem artificial. It didn't seem first, it was just a natural progression of oh, you own a house, well, what if you can't sign the deed and we need to sign it? You need a power of attorney to do that or you know just any such way. They said every single question you would answer and eventually have some way to lead it back to.

Speaker 2:

You have to do the power of attorney and I tell people all the time I like to dress like I dress, which is a khaki and pullover typically, or button up shirt. I don't like to put on a suit and I always tell people if your attorney has to put on a suit and go to court for you, it's going to cost you a lot of money and I will tell you as an elder law estate planning attorney. If you were to ask me what is the most important document you can do, you'd probably think obviously a trust, a will or something like that. I said no, it's a power of attorney. It is absolutely the most important document you can do. Everyone over the age of 18 should do it, and particularly if you are advancing in age, then you absolutely have to do a power of attorney because you are going to spend some time incapacitated. Okay, so you know you have to educate clients and families to do this. Now, briefly, I do a whole podcast on this, but let me just briefly say this when is too late for someone to sign a power of attorney? In a quick nutshell, it's probably later than you think. Okay, so our ethical rules say we have an obligation to facilitate, to help the client have capacity when it comes time to sign the day. When it comes time to sign, pick the time of day.

Speaker 2:

Most people with dementia. They are better in the mornings than they are at night. You've probably heard of sundowner syndrome. It's like later in the day their brain's tired, they've been up and they just start acting a little more. The dementia starts showing more. Let me put it that way the dementia appears to be worse in the afternoon than it is in the morning. You can work with someone in the morning who's pretty clear, even though they have fairly advanced dementia. In the morning they can say, yeah, that's my son, he handles my business and I want him to be my financial power attorney. This is my daughter. She's a physician. I want her to be my healthcare power of attorney. This is my daughter, she's a physician. I want her to be my health care power of attorney. Great, let's drop the documents and sign it. Whereas if you brought this person in for the four o'clock appointment, they may not know who you are, who their kids are. Their brain is tired, they've shut down and it's like they truly have really bad dementia.

Speaker 2:

Okay, and so that leads to another point of getting a doctor's letter to help you prove capacity, I say is absolutely not necessary and I do not recommend it, because when's the doctor going to see them? That is one time, you know, one 10 minute meeting, probably during the day. We don't know when the doctor saw them, we don't know what their day was like, and I will tell you. If I have a client come in at nine or 10 o'clock in the morning and they're not doing well, I'll say okay, let's try again tomorrow. How was their night? Did they sleep well? Did they eat good breakfast? Did you give them their medication? They're like oh well, there was this or that or whatever. It's like okay, let's do it again another day at the same time and you may be very surprised that the person once you assist them and facilitate comprehension, you can get it a lot of times when most people would not and a doctor's letter is not necessary for you to prove this person has capacity.

Speaker 2:

I know stepping on toes when I grade the CELA exams I won't fail someone for saying this but it does rub me the wrong way. When there is a dementia question, they're like oh, I would absolutely have the physician write a letter. I'm like no, no, don't like this answer. Okay, ending on the other thing, if the rest of the answer is really good, I'll say okay, I'll let it slide. I don't agree with that. But sometimes if they say that the other parts of the answer are also not good and it's like sorry, dude, you failed this question, so don't put that. If you're about to take the CELA exam, don't put that in your answer.

Speaker 2:

I've been doing this for 25 years. I have thousands of situations where doing the powers of attorney allowed the family to do stuff when mom got to the point she was not able to make decisions. And I get cards, I get letters, I get phone calls. Particularly, I always bring families in after my client passes away and I think it's a fantastic story when I don't hear from them during this process. You know, mom got bad. She had dementia. She was, you know, incapacitated for a length of time. She declined, she passed away. And they're like hey, todd, mom passed away. When you come see us, like great, come on in. And so they come in. I'm like I'm sorry to hear that mom died, but did you have any problems? They're like, no, all those documents allowed us to talk to the doctors, talk to the bank. We did everything we needed to do. We did not need a lawyer, we did not need court, it just progressed. I'm like that's the greatest success story I could ever have is having a family say everything went great.

Speaker 2:

If this is not how you practice, if this is completely new to you, let's talk. I would love to be your elder law coach. I would love to help you get this portion of your practice I won't say fixed, but not that it's broke. I want to get it better. Let's improve this area of your practice so that you can see people. And if you make a living doing guardianships, let's not do that. Okay, let's change that. Let's do powers of attorney. Let's keep people out of court. Let's keep them autonomous, independent. Let's give the family the tools that they need to do what needs to be done to protect these people without having to go to court. Okay, um, I would love to work with you. I have all the training that you need on this. I have videos.

Speaker 2:

You get two hours of phone calls with me every month when you sign up. Um, I, I, I want to be your partner not legally your partner, but I want to walk you through this. I want to see you go from not knowing much to knowing a lot and having a thriving, busy elder law practice that you are truly making a difference in A lot of lives. You hire, you know, half a dozen people to help them, help you, and everybody does well and everything goes fantastic and you do what I truly think is the best job in the world. So, um, please give us a call.

Speaker 2:

Please visit the elderlawcoachcom website. There's a place there you can schedule a phone call with me. Um, if you need Tricia, you can. You can always call her. I don't have the number right in front of me, it'll be in the show notes, but, yeah, give her a call. Visit the website, let's tap First. Phone call is no pressure. I actually talk people out of coaching quite a bit because they're just not ready yet. I will not pressure you into it. We'll talk and if it feels like a good fit, if it is something that you want to do, let's do it and, like I said, do the best job in the world. All right, thank you all very much and I will see you all next time.

Speaker 1:

Thank you for joining this episode of the Elder Law Coach Podcast. For those eager to take their elder law practice to new heights and are interested in Todd's acclaimed coaching program, visit wwwtheelderlawcoachcom. With Todd Whatley by your side, the journey to becoming an elder law authority has never been more achievable. Until next time, keep learning, keep growing and stay passionate about elder law.