Mother, age 85, liked freedom with her cash. She used her money without keeping track of her spending. She forgot to check her bank statements and didn’t notice that odd withdrawals had happened. Her short term memory was eroding. When she finally remembered to look, she was alarmed to see that unexplained withdrawals had happened and someone had taken $40,000 out of her account. Hackers had gotten in. She had a son and a daughter. Being old-fashioned, she thought her son should be in charge of money and she had named him as her agent on the Power of Attorney document as well as making him the successor trustee of her trust. She called him and told him the bad news about her account being hacked.
Son was unemployed and needed cash. He saw this moment an opportunity for himself with his mom’s poor memory. He had predatory intentions. He took her to her doctor, who examined her for 15 minutes and did no measurement of her memory issues. Instead, at Son’s request, he filled out a 4-sentence form letter and asked a colleague M.D. to do the same. The letters said she no longer had the ability to independently manage her finances. That gave Son freedom to access her bank accounts. He took the letters to her banks with the power of attorney document and was given immediate full access to his mom’s cash account. He withdrew all of it.
Mom’s Reaction
Son told his mom that he was now in charge. He was going to sell her home. She was going to be living with him from then on and she would be paying him $1000 a month rent. That would take most of her Social Security, her only steady income. She was furious! Indeed, she had memory loss and should not have been handling her money independently any longer, but that fact, by itself, did not mean she had no rights to make any decisions in her life.
Mom had enough courage to stand up to her son, with her daughter’s help. She sought advice from us at AgingParents.com. We directed her to get proper, thorough psychological testing to determine whether she still had the legal capacity to change her trust and her power of attorney appointments. She underwent the testing, which is standardized throughout the U.S. and can only be performed by licensed psychologists, not by medical doctors. She also underwent two extensive interviews with the psychologist on two different days. The doctor determined that she did have legal capacity to decide whom she wanted to be in charge of such decisions as where she would live and who would care for her.
Legal Steps
She got her own attorney and based on the testing results and interviews, which were far more credible than the 15 minute exam her prior doctor had done, the attorney made changes to the trust and the power of attorney appointment. To avoid a bitter conflict between Daughter and Son, Mom appointed a licensed fiduciary to handle her finances. This was at the direction of her attorney. She was able to remain in her own home. Son was forced to give back the stolen money and to follow the direction of the fiduciary going forward. He was angry, but the law allowing Mom to make important decisions had to be followed.
Mom, in this case had indeed lost her ability to manage finances. But the testing and thorough interviewing by a competent psychologist showed that she could still change her trust and power of attorney (she had”testamentary capacity”). The lawyer who represented her was comfortable with making the changes to her legal documents and removing the predatory son from a position of power. It was a prudent decision to hire an independent person, licensed in their state to be in charge of finances after that. The fiduciary did not have to listen to the son or daughter, but made independent decisions for the mom’s benefit.
The Takeaways
Beware of hasty conclusions that an aging parent is completely incapable of decisions other than financial ones. Financial capacity may be the first intellectual ability to go when cognitive impairment begins, but it is not a sign that the person has no ability left for anything else. While it is true that many impaired elders grossly overestimate their own ability and insist on living in unsafe conditions, some elders are not as impaired as just having memory loss might suggest. If they have what the law calls testamentary capacity, the ability to understand what is needed to change their legal documents, including a will, trust and power of attorney, they are free to change them.
Respect that aging parents with cognitive impairment may still have the legal right to make decisions affecting where and how they live. Neuropsychological testing and interviews cannot measure everything but they can offer very useful information that no 15 minute checkup with an M.D. can give.
If anyone in your family seems to be preying on your aging loved one, consider getting them a proper and full assessment to find out if the potential predator an be removed from authority over finances. It worked for this mom.
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