1 mile west of the Chicago Premium Outlet Mall (800) 810 3100
Due to the recent sensationalism of the Mickey Rooney case, we were asked by a reporter with the Wall Street Journal to provide anecdotal stories for an article about how to protect vulnerable seniors from financial abuse.  The key focus was, specifically, to examine the misuse of financial powers of attorney by trusted persons.  Our team reviewed our files and found that we had clients who had experienced substantial loss of assets from the following:
  • The bad son
  • The bad daughter
  • The bad neighbor
  • The bad grandchild
  • The bad hired caregiver
In each case, we discovered that the abuse of the senior began before anyone would have considered that person legally incapacitated.  Loss of the ability to protect oneself often precedes actual loss of capacity.  The truth of this statement means that senior citizens become highly vulnerable to financial abuse long before the law sees them as needing the protection of “the system.” A report released by the National Center on Elder Abuse confirms what we found in our research.  The report mentions that “between 1 and 2 million Americans age 65 or older have been injured, exploited, or otherwise mistreated by someone on whom they depended for care or protection.” One of the most important findings of our internal research was that in every case except for the “bad hired caregiver,” an attorney had prepared the financial power of attorney which a loved one or trusted neighbor used to betray the principal.  I was asked by the reporter, “How could that happen?”  I did not have a good answer to give to her. The truth is that aside from doctors, it is the bankers, financial advisors and attorneys who may be in the best position to spot the first warning signs of Alzheimer’s or dementia. This article in the New York Times states that “New research shows that one of the first signs of impending dementia is an inability to understand money and credit, contracts and agreements.” Unfortunately, most financial or legal advisors are not trained to look for these signs, and they are not educated about what actions to take if they do start to notice warning signs. Most advisors will tell you that their first duty is to their client, so what is an advisor to do when a client asks (often quite reasonably) to change their will or power of attorney? “Financial advisers and lawyers say they are finding themselves in a bind when their clients’ minds seem to be slipping.” Elder law attorneys such as myself may have an edge when it comes to recognizing the signs of dementia or abuse, but many families don’t think to consult an elder law attorney until it’s too late; other advisors need to be made aware of some of these warning signs. We as attorneys can make a difference in protecting vulnerable seniors from financial abuse.  We need to have a heightened degree of skepticism when anyone approaches us and seeks to create a power of attorney.  At the very least, we must interview the prospective client/principal independently.  We are not trained to administer a mini mental health exam—but under the new Illinois Rules of Professional Responsibility, we can work proactively to protect vulnerable seniors.

When I was a teen, my maternal grandfather Jerry died from a sudden heart attack at age 60. His death was immediate. Later, when I was a young man, my favorite uncle Jack (Jerry’s son) also died quickly from a heart attack.  He was 58. Now that I am the same age, I worry that I will be hit with a sudden heart attack–just… about… now!  But things have changed, and these days life usually ends slowly. Stephen Kiernan’s book, Last Rites: Rescuing the End of Life from the Medical Profession reveals that since 1960, the life expectancy of a North American adult has been lengthened by 31 years. This is a stunning change in human life expectancy within an incredibly short time frame. He notes that even in 1978, the most frequent causes of death among adults were sudden–heart attack, stroke, and workplace accidents. Well, death from sudden causes may be down dramatically, but we have not defeated death–only delayed it. We’ve traded a quick death for the long, downhill trajectory of age-related memory and/or mobility losses. Terry Schiavo famously died without documents outlining her wishes for or against life-prolonging treatment. The ensuing controversy surrounding the decision to remove Terry from life support was a tragedy, and should serve as a wake-up call to the rest of us.  Everyone should create a simple power of attorney (or a living will) appointing a trusted loved one as a health care decision-maker. However, you should be aware that Health Care Powers of Attorney (HCPOA) and living wills are woefully lacking if you have a diagnosis of long-term illness such as dementia, Alzheimer’s, or Parkinson’s disease. These documents use “triggering language” which creates an authorization to act only when you have been diagnosed as “terminally ill,” which is generally defined as having a condition which will be fatal within six months or less. Doctors do not consider Alzheimer’s or other long-term illnesses to be ‘terminal illnesses’. Patients need a way to make written declarations of their desire (or lack thereof) for antibiotics, tube-feeding, etc. when they are in the late stages of these long-term illnesses and likely afflicted with dementia. Watching a loved one endure long-term suffering is one of the most terrible experiences there is.  I would have loved to have shared more years with my grandfather and uncle–but when I see friends and clients suffer multiple year declines, it makes me wonder if maybe Grandpa Jerry and Uncle Jack were “the lucky ones.”