January 18, 2025 • 30 mins
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.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:19):
Thank you.
Specialized experience, Whetheryou're an established attorney
looking to refine your expertiseor an emerging lawyer seeking a
successful foray into elder law, this is your masterclass.
Now let's get started with theluminary in the field.
Here's Todd Whatley.
Speaker 2 (00:37):
That's right.
This is the Elder Law Coach.
My name is Todd Whatley and, asalways, I am extremely
appreciative that you havejoined me again today, and I've
been getting some reallypositive comments from my
podcast, and that justabsolutely makes my day, knowing
that all of this time andeffort is not for nothing and
people are actually enjoyingthis, and a few people last week
(00:59):
told me this had kind ofchanged how they do their
practice, and so that's exactlynot that I want you to change.
I want you to improve, and ifimproving means changing by
George, let's do it.
So today I may step on a fewtoes.
All right, it's okay, we canget past this, but just
understand, I've been doing thisfor 25 years and not that
(01:21):
everything that I do isabsolutely correct.
Done this for 25 years and notthat everything I that I do is
absolutely correct, and, um, Iam not open to um criticism or
suggestions, but I'm just sayingthis is one of those things
that I am extremely umpassionate about, and I think,
as an elder law attorney, youshould also be passionate.
(01:42):
And I think what's mostinteresting is, I don't think a
lot of people get it right,particularly non-elder law
attorneys, some judges, and thatis dealing with diminished
capacity.
And yes, I know I've done apodcast on this before and it's
(02:03):
been very popular and peoplehave listened to it.
But I just kind of want to gothrough in general as an
overview of this and just talkabout how we must, as elder law
attorneys, fight for theautonomy of our clients.
And I just see consistentlywhere, when someone has been
(02:31):
diagnosed with dementia,alzheimer's, whatever, instantly
everything changes and it'slike oh, they have dementia, so
therefore they can't signdocuments and we shouldn't be
talking to them and let's justtake over their life and let's
decide everything that they do.
And it's like no, no, no, no,no, no, no.
We as elder law attorneys well,attorneys fight for the rights
of our clients and I alwaysrelate this back to criminal law
.
When someone's been accused ofa crime, many times the penalty
(02:56):
for that is we take away theirfreedoms, we put them in jail,
in prison, and that is theirpunishment is taking away rights
.
And for us to do that to anAmerican citizen.
We have implemented a ton ofprotections for these people.
Okay, justifiably, you've beenaccused of a crime.
(03:18):
We as a society are wanting totake away your rights and we
have implemented a number ofprotections the right to remain
silent, the right to have anattorney appointed for you if
you cannot afford that.
This is so important that youdo need an attorney, and if you
can't afford one, one will begiven to you at the cost of
(03:42):
society to protect you.
And a jury must be unanimousand beyond a reasonable doubt
Not just any doubt, but areasonable doubt.
You know there are all of theseprotections and appeals.
You can appeal it, and sothere's just all of these layers
and layers and layers ofprotection, which I'm not
fussing about, I'm all for that.
(04:04):
But when it comes to an olderperson who's now been diagnosed
with dementia, it's like, ehover, they lose their rights.
We're going to get aguardianship and be done with it
.
No, a thousand times, no, thatis not how this should be
happening.
But it is what is happeningacross the country.
(04:25):
And you know, sometimes I feellike a lone voice in the
wilderness screaming about thisand saying, no, this is not how
it should be done.
Okay, so let's just start outwith autonomy.
We are to seek and maintain theautonomy of our clients, and
(04:47):
just because someone has beendiagnosed with some kind of
cognition issue doesn't mean wetake away their rights.
They're still able to do manythings and many times the
initial diagnosis no one knowswhat's going on, except for very
close family.
You know they can stillfunction, they can still do
things, although they have thediagnosis of dementia.
(05:09):
And there is a very delicatebalance here between protecting
their interest, okay, andparticularly as the dementia
gets a little worse and theyforget to pay bills and they're
very easily influenced byscammers and sometimes family
members are those scammers.
(05:30):
You know being very undulyinfluenced to pay for things,
give away things and just betaken advantage of and taking
away their autonomy.
So we need to protect them, butwe don't need to take away
their autonomy or theirindependence, okay.
And so we want people to stillbe able to have independence,
(05:54):
not have to go to court and allof their rights taken away from
them in order to simply protectthem from someone or to simply
be able to write checks for them.
Okay, I think it is the ethicalresponsibility of attorneys, and
particularly elder lawattorneys, to prioritize client
autonomy whenever possible.
(06:14):
Absolutely, go to great linksand our ethical rules actually
say and if you've not read therule on diminished capacity, go
read the rule and focus on thosecomments.
Okay, the rule and the commentsare very clear that we are to
(06:37):
take steps to fosterindependence in our clients, to
foster the ability to be able tosign documents, to do things,
and it is in our ethical code toprotect people, to maintain
their autonomy as much aspossible.
If absolutely a guardianship isthe only thing we can do, if
(07:00):
they are truly incapacitated andwe need a guardianship, sure,
let's do the guardianship, butmy complaint is I think that is
reached way too early.
Okay, and I'll go through thatsoon.
How we do this, how we protectpeople, is there are legal
instruments there to safeguardautonomy.
(07:21):
Safeguard autonomy, all right,and early planning is crucial.
I spend almost all of my sparetime, my marketing budget,
everything is to get this doneearly.
Please come see us early.
Let's get some documents inplace and the primary document
to do that is powers of attorney, both financial and medical,
(07:45):
along with advanced directives.
Okay, we need to get peopleinto the office.
We need to get them in andconvince them that they need to
do a power of attorney, and Ithink if an elderly or you know,
I'm saying elderly, but if,pretty much, if any client
leaves your office without doinga power of attorney, you've not
(08:06):
done your job well.
I know that's a bold statement,but it's true.
I think everyone over the age of18 needs to have a power of
attorney in place, particularlysomeone who is over 50, 60, 70
years old.
It is crucial.
They will spend some timeincapacitated, unless they just
(08:26):
drop dead, have a stroke thatyou know absolutely immediately
renders them incapacitated, orsome accident they fall, hit
their head, car wreck, whateverYou're going to spend some time
incapacitated, and many times.
That progression to incapacityis not sudden.
(08:47):
Like I just mentioned, it's aprogression, and trying to
figure out when in thatprogression should we jump in
and take over is difficult.
It's difficult from a practicalstandpoint.
We don't want to do it tooearly.
But then if we know it's timeto do it, but the person
themselves still thinks they'reokay, they don't think
(09:09):
anything's wrong with them, therest of the world is crazy.
Trying to jump in and do whatneeds to be done to protect them
without taking them to courtbecomes a problem, and all of
that can be solved with animmediately effective power of
attorney.
Okay, so we do a power ofattorney and I convince my
(09:30):
clients look, if you trust thisperson that you're naming as the
agent to be your agent.
If you trust them today, youshould trust them always, okay,
not just when you becomeincapacitated.
Let's have them step in andstart doing things.
Let's have them out there ready, willing and able to do things
immediately.
They're not going to doanything While you can still
(09:52):
sign checks and do things.
They're busy, I'm sure, andthey're not going to get too
busy-bodied in your life.
They have a life.
They're going to do things, butwhen they need to do something,
there's no other hoops to jumpthrough and they can just step
up and start doing it.
So one of my recommendations isabsolutely do an immediately
(10:13):
effective power of attorney sowe don't have to spring it to
life Okay.
A properly prepared power ofattorney will help save this
person's estate, save theirdignity, save everything, and I
encourage you if you are usingyour state's statutory power of
(10:34):
attorney.
The ones I've seen are all verysimilar.
There's typically a list ofpowers 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'mtelling my client okay, these
next seven are like superpowersgifting, changing beneficiaries,
(10:57):
closing bank accounts, thingslike that.
I call those superpowers andI'm like look, I highly
recommend that you initial thoseseven superpowers because we
want the agent to be able to dowhatever needs to be done.
And once someone explains tothem the importance of gifting,
(11:18):
the importance of closing bankaccounts, particularly if
they're being scammed and wejust can't get them to not stop
writing checks to what theythink is the Nigerian prince,
you know we've got to jump inand do something, and how we do
something is we jump in andclose the bank account, shut it
down, move the money where theycan't get to it and it is
(11:40):
therefore protected.
Okay, so a very comprehensivefinancial power of attorney
authorizing all of the powers isabsolutely crucial.
(12:07):
Do a guardianship because,between your financial power of
attorney and your healthcarepower of attorney, your agent
has the ability to do whateverneeds to be done in any
situation.
The two times that we may needto do a guardianship is number
one if a person won't stay wherethey need to stay or go where
they need to go, meaningtypically nursing home.
If everybody says look, msJones, you need to stay in the
(12:31):
nursing home, she got therebecause she went into the
hospital.
Some injury, illness, whatever,put her into the hospital.
Then they went from thehospital to the nursing home
under Medicare rehab and she didnot progress like they thought
she would.
Then she would need to stay inthe nursing home.
She's like nope, I'm notstaying, okay.
(12:52):
Well, that's a situation whereif she absolutely is insisting
on walking out the door, then wemay need to do a guardianship
to take physical control of herwithout kidnapping or unlawfully
detaining her.
We get a guardianship so we cansay, no, you're not leaving,
okay, or you go.
(13:14):
If they don't go when they needto go, they're at home.
They need to go to the nursinghome and they've almost burned
the house down.
They keep falling, they're notbathing, they're not taking
their meds, whatever and theywon't let anyone in the house.
You know it's just a badsituation and they need to go to
the nursing home but refuse togo.
We would need a guardianship todo that, okay.
(13:36):
The second situation that I see, where sometimes I'm like you
know, I hate it, but we need aguardianship.
I call it the serial POAs.
This is when typically a mom,sometimes a dad, but the older
person is being undulyinfluenced by different children
to create a POA for them.
(13:57):
Okay, meaning, you know, msJones comes to me with child A,
we sit down.
You know, I've seen child A outof the room.
I'm like, ms Jones, um, do youtrust child A?
Yep, she's good, she's beenthere helping me, she's fine.
I'm like do you have otherchildren?
Yeah, but they're, they're notthat involved in this one child.
(14:18):
This one child has always quoteborrowed money but never paid
it back, or is always needingthings or doing things.
And this child A does protectme and I think this is a good
idea.
I'm like, okay, great, let's doit.
So we do that power of attorney.
Well then, a few weeks later,child A calls me and says hey,
(14:39):
child B took mom to anotherattorney and she did power of
attorney appointing child BBring mom back in, I'll talk to
her and I'll bring them back in.
She's like, oh yeah, I didn'twant to appoint child B, but you
know, they just said they wouldstop coming to visit, or they
said they were about to losetheir house, or you know some
sob story, why they needed money.
(15:00):
And so she appointed child B aspower of attorney.
I'm like, well, you told me theother 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 thatpower of attorney, okay, good.
And so we do it.
And then child C or child Bcomes back and it's just back
and forth and so that she'sdoing POA after POA, after POA
(15:24):
or serial POAs.
In that situation where I justcan'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 reallynot incapacitated.
And in Arkansas that would beknown as a conservatorship to
(15:45):
say, judge, we just need you tosupervise this and know that
this can't be changed unlesspeople come back to court and
convince you that it needs to bechanged.
And so that is aconservatorship.
I don't like it.
But it is one of the twosituations where we do need to
do guardianship.
(16:06):
I think everybody understandsthe thresholds of establishing a
guardianship, which I think ispushed on the low side.
I've had full meetings withpeople who come into me.
It's like, yeah, I want toappoint this child as POA and we
have a very good, fullconversation and she completely
understands everything that'sgoing on and I'm like, okay,
(16:26):
this makes sense.
And then somewhere in themeeting she's like does it
matter that I have aguardianship over me?
And I'm like what?
She's like, yeah, a few yearsago my son got a guardianship
over me and I was like, okay,but you're fine.
She said, well, they said I wasdiagnosed with dementia and so
they needed a guardianship.
So say, I'm not just makingthis up, I'm not just
(16:48):
complaining, I'm saying thishappens all the time.
And I was like, but you're fine.
And she said, well, I didn'tcontest it.
And the judge was like, yeah,she has dementia, so let's do a
guardianship.
I said, yeah, that matters, Ican't do anything because with a
guardianship, chances are youdon't have the power to do this.
And so I forget what happened.
(17:09):
This was, you know, the mostblaring situation was quite a
few years ago and it's just like, yeah, this happens all the
time and it's just, it'sextremely frustrating Drafting
POAs again.
Let me just kind of get back tothat.
I have notes here and I don'tfollow my notes like I should.
I get off on tangents.
I just covered point four in, Ithink, point one.
(17:31):
So anyway, point four isdrafting powers of attorney to
support autonomy.
Okay, make the powers ofattorney very comprehensive,
very encompassing, so thatanything that needs to be done
can be done by the agent.
Now let's talk about agents.
Who needs to be the agent?
Well, for the financial powerof attorney, this ideally is a
(17:57):
child that is nearby, but withtoday's technology, the
financial agent doesn't have tolive nearby.
The financial agent doesn'thave to live nearby it's
convenient, but they don't haveto.
With online banking andovernight, you know FedEx and
emails and all kinds of thingsAn agent can function fairly
(18:19):
well from a distance withouthaving to be right here.
But it is very convenient to belocal to check the mail and
you'll go to the bank with momor dad or whatever.
So it is convenient, but it'snot necessary.
But this person needs to begood with money.
They need to be responsible,they need to recognize that a
(18:41):
bank account's getting low or beable to anticipate bills coming
.
I mean they need to have somefinancial mindfulness to take
care of mom or dad's money ortheir friend's money, whoever
they appoint as the financialpower of attorney.
I do separate healthcare powersof attorney because many times
the person who's really goodwith money may not be the person
(19:03):
that you want to be deciding ifyou live or die, or telling you
know the doctors what to do.
I've seen a whole lot offamilies where one child is
financial they're a CPA, bank orwhatever, and they're very good
with money and then the otherchild goes the opposite
direction, is really good inscience, you know medicine or
(19:23):
whatever.
They're doctor, nurse, you knowsome kind of medical person.
Well, that just makes sense.
Let the one child be thefinancial power of attorney, let
the other child be the medicalpower of attorney.
So I think it's our job asattorneys to help, you know,
encourage this and you know,walk with our clients through
(19:46):
this situation to say this iswhat we're going to do, this is
how we're going to do this, andgive them ideas exactly on what
to do.
Okay, so I think that's our job.
It is important to educateclients.
People think, oh, I don't needa power of attorney until I need
it.
Well, it's too late once youneed it.
(20:07):
Okay, and you know, opencommunication within the family
is crucial and when I dopresentations, I always talk
about power of attorney.
And just quick story, quite afew years ago, during COVID, I
was doing an online version ofmy in-person Coffee with the
(20:30):
Pros, and so people had signedup 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 bethere.
And so they showed up and youknow, they were just watching
and they were quiet.
And I told him I said, afterwe're done with this, send call,
(20:52):
stick around, let me know whatyou think.
And they're like okay.
So I did the whole thing.
It was about an hour long hourand 15 minutes or so and all I
do is answer questions.
You know, people ask questionsand I answer it and back and
forth.
And so we got through and I waslike okay, thank you, bye.
And so those two ladies stayedon and they just they brushed
(21:16):
out laughing.
I was like what is so funny?
And they said we were justtexting each other.
They weren't sitting together,they were in different locations
also and they said we were justtexting each other.
It's like, todd, the answer toany 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
(21:39):
doesn't matter what they askabout, you were always able to
steer it back to.
You've got to do your power ofattorney, she said.
They said it didn't seemartificial.
It didn't seem first, it wasjust a natural progression of oh
, you own a house, well, what ifyou can't sign the deed and we
need to sign it?
You need a power of attorney todo that or you know just any
(22:03):
such way.
They said every single questionyou would answer and eventually
have some way to lead it backto.
You have to do the power ofattorney and I tell people all
the time I like to dress like Idress, which is a khaki and
pullover typically, or button upshirt.
I don't like to put on a suitand I always tell people if your
(22:23):
attorney has to put on a suitand go to court for you, it's
going to cost you a lot of moneyand I will tell you as an elder
law estate planning attorney.
If you were to ask me what isthe most important document you
can do, you'd probably thinkobviously a trust, a will or
something like that.
I said no, it's a power ofattorney.
It is absolutely the mostimportant document you can do.
(22:45):
Everyone over the age of 18should do it, and particularly
if you are advancing in age,then you absolutely have to do a
power of attorney because youare going to spend some time
incapacitated.
Okay, so you know you have toeducate clients and families to
do this.
Now, briefly, I do a wholepodcast on this, but let me just
(23:09):
briefly say this when is toolate for someone to sign a power
of attorney?
In a quick nutshell, it'sprobably later than you think.
Okay, so our ethical rules saywe have an obligation to
facilitate, to help the clienthave capacity when it comes time
(23:32):
to sign the day.
When it comes time to sign,pick the time of day.
Most people with dementia.
They are better in the morningsthan they are at night.
You've probably heard ofsundowner syndrome.
It's like later in the daytheir brain's tired, they've
been up and they just startacting a little more.
The dementia starts showingmore.
(23:53):
Let me put it that way thedementia appears to be worse in
the afternoon than it is in themorning.
You can work with someone inthe morning who's pretty clear,
even though they have fairlyadvanced dementia.
In the morning they can say,yeah, that's my son, he handles
my business and I want him to bemy financial power attorney.
(24:13):
This is my daughter.
She's a physician.
I want her to be my healthcarepower of attorney.
This is my daughter, she's aphysician.
I want her to be my health carepower of attorney.
Great, let's drop the documentsand sign it.
Whereas if you brought thisperson in for the four o'clock
appointment, they may not knowwho you are, who their kids are.
Their brain is tired, they'veshut down and it's like they
(24:34):
truly have really bad dementia.
Okay, and so that leads toanother point of getting a
doctor's letter to help youprove capacity, I say is
absolutely not necessary and Ido not recommend it, because
(24:54):
when's the doctor going to seethem?
That is one time, you know, one10 minute meeting, probably
during the day.
We don't know when the doctorsaw them, we don't know what
their day was like, and I willtell you.
If I have a client come in atnine or 10 o'clock in the
morning and they're not doingwell, I'll say okay, let's try
again tomorrow.
(25:14):
How was their night?
Did they sleep well?
Did they eat good breakfast?
Did you give them theirmedication?
They're like oh well, there wasthis or that or whatever.
It's like okay, let's do itagain another day at the same
time and you may be verysurprised that the person once
you assist them and facilitatecomprehension, you can get it a
(25:38):
lot of times when most peoplewould not and a doctor's letter
is not necessary for you toprove this person has capacity.
I know stepping on toes when Igrade the CELA exams I won't
fail someone for saying this butit does rub me the wrong way.
When there is a dementiaquestion, they're like oh, I
(25:59):
would absolutely have thephysician write a letter.
I'm like no, no, don't likethis answer.
Okay, ending on the other thing, if the rest of the answer is
really good, I'll say okay, I'lllet it slide.
I don't agree with that.
But sometimes if they say thatthe other parts of the answer
are also not good and it's likesorry, dude, you failed this
(26:21):
question, so don't put that.
If you're about to take theCELA exam, don't put that in
your answer.
I've been doing this for 25years.
I have thousands of situationswhere doing the powers of
attorney allowed the family todo stuff when mom got to the
point she was not able to makedecisions.
And I get cards, I get letters,I get phone calls.
(26:43):
Particularly, I always bringfamilies in after my client
passes away and I think it's afantastic story when I don't
hear from them during thisprocess.
You know, mom got bad.
She had dementia.
She was, you know,incapacitated for a length of
time.
She declined, she passed away.
(27:04):
And they're like hey, todd, mompassed away.
When you come see us, likegreat, come on in.
And so they come in.
I'm like I'm sorry to hear thatmom died, but did you have any
problems?
They're like, no, all thosedocuments allowed us to talk to
the doctors, talk to the bank.
We did everything we needed todo.
We did not need a lawyer, wedid not need court, it just
(27:24):
progressed.
I'm like that's the greatestsuccess story I could ever have
is having a family sayeverything went great.
If this is not how you practice,if this is completely new to
you, let's talk.
I would love to be your elderlaw coach.
I would love to help you getthis portion of your practice I
(27:48):
won't say fixed, but not thatit's broke.
I want to get it better.
Let's improve this area of yourpractice so that you can see
people.
And if you make a living doingguardianships, 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.
(28:10):
Let's give the family the toolsthat they need to do what needs
to be done to protect thesepeople without having to go to
court.
Okay, um, I would love to workwith you.
I have all the training thatyou need on this.
I have videos.
You get two hours of phone callswith me every month when you
sign up.
Um, I, I, I want to be yourpartner not legally your partner
(28:35):
, but I want to walk you throughthis.
I want to see you go from notknowing much to knowing a lot
and having a thriving, busyelder law practice that you are
truly making a difference in Alot of lives.
You hire, you know, half adozen people to help them, help
you, and everybody does well andeverything goes fantastic and
(28:58):
you do what I truly think is thebest job in the world.
So, um, please give us a call.
Please visit theelderlawcoachcom website.
There's a place there you canschedule a phone call with me.
Um, if you need Tricia, you can.
You can always call her.
I don't have the number rightin front of me, it'll be in the
(29:18):
show notes, but, yeah, give hera call.
Visit the website, let's tapFirst.
Phone call is no pressure.
I actually talk people out ofcoaching quite a bit because
they're just not ready yet.
I will not pressure you into it.
We'll talk and if it feels likea good fit, if it is something
that you want to do, let's do itand, like I said, do the best
(29:41):
job in the world.
All right, thank you all verymuch and I will see you all next
time.
Speaker 1 (29:46):
Thank you for joining this episode of the Elder Law
Coach Podcast.
For those eager to take theirelder law practice to new
heights and are interested inTodd's acclaimed coaching
program, visitwwwtheelderlawcoachcom.
(30:08):
With Todd Whatley by your side,the journey to becoming an
elder law authority has neverbeen more achievable.
Until next time, keep learning,keep growing and stay
passionate about elder law.
Thank you.
Specialized experience, Whetheryou're an established attorney
looking to refine your expertiseor an emerging lawyer seeking a
successful foray into elder law, this is your masterclass.
Now let's get started with theluminary in the field.
Here's Todd Whatley.
Speaker 2 (00:37):
That's right.
This is the Elder Law Coach.
My name is Todd Whatley and, asalways, I am extremely
appreciative that you havejoined me again today, and I've
been getting some reallypositive comments from my
podcast, and that justabsolutely makes my day, knowing
that all of this time andeffort is not for nothing and
people are actually enjoyingthis, and a few people last week
(00:59):
told me this had kind ofchanged how they do their
practice, and so that's exactlynot that I want you to change.
I want you to improve, and ifimproving means changing by
George, let's do it.
So today I may step on a fewtoes.
All right, it's okay, we canget past this, but just
understand, I've been doing thisfor 25 years and not that
(01:21):
everything that I do isabsolutely correct.
Done this for 25 years and notthat everything I that I do is
absolutely correct, and, um, Iam not open to um criticism or
suggestions, but I'm just sayingthis is one of those things
that I am extremely umpassionate about, and I think,
as an elder law attorney, youshould also be passionate.
(01:42):
And I think what's mostinteresting is, I don't think a
lot of people get it right,particularly non-elder law
attorneys, some judges, and thatis dealing with diminished
capacity.
And yes, I know I've done apodcast on this before and it's
(02:03):
been very popular and peoplehave listened to it.
But I just kind of want to gothrough in general as an
overview of this and just talkabout how we must, as elder law
attorneys, fight for theautonomy of our clients.
And I just see consistentlywhere, when someone has been
(02:31):
diagnosed with dementia,alzheimer's, whatever, instantly
everything changes and it'slike oh, they have dementia, so
therefore they can't signdocuments and we shouldn't be
talking to them and let's justtake over their life and let's
decide everything that they do.
And it's like no, no, no, no,no, no, no.
We as elder law attorneys well,attorneys fight for the rights
of our clients and I alwaysrelate this back to criminal law
.
When someone's been accused ofa crime, many times the penalty
(02:56):
for that is we take away theirfreedoms, we put them in jail,
in prison, and that is theirpunishment is taking away rights
.
And for us to do that to anAmerican citizen.
We have implemented a ton ofprotections for these people.
Okay, justifiably, you've beenaccused of a crime.
(03:18):
We as a society are wanting totake away your rights and we
have implemented a number ofprotections the right to remain
silent, the right to have anattorney appointed for you if
you cannot afford that.
This is so important that youdo need an attorney, and if you
can't afford one, one will begiven to you at the cost of
(03:42):
society to protect you.
And a jury must be unanimousand beyond a reasonable doubt
Not just any doubt, but areasonable doubt.
You know there are all of theseprotections and appeals.
You can appeal it, and sothere's just all of these layers
and layers and layers ofprotection, which I'm not
fussing about, I'm all for that.
(04:04):
But when it comes to an olderperson who's now been diagnosed
with dementia, it's like, ehover, they lose their rights.
We're going to get aguardianship and be done with it
.
No, a thousand times, no, thatis not how this should be
happening.
But it is what is happeningacross the country.
(04:25):
And you know, sometimes I feellike a lone voice in the
wilderness screaming about thisand saying, no, this is not how
it should be done.
Okay, so let's just start outwith autonomy.
We are to seek and maintain theautonomy of our clients, and
(04:47):
just because someone has beendiagnosed with some kind of
cognition issue doesn't mean wetake away their rights.
They're still able to do manythings and many times the
initial diagnosis no one knowswhat's going on, except for very
close family.
You know they can stillfunction, they can still do
things, although they have thediagnosis of dementia.
(05:09):
And there is a very delicatebalance here between protecting
their interest, okay, andparticularly as the dementia
gets a little worse and theyforget to pay bills and they're
very easily influenced byscammers and sometimes family
members are those scammers.
(05:30):
You know being very undulyinfluenced to pay for things,
give away things and just betaken advantage of and taking
away their autonomy.
So we need to protect them, butwe don't need to take away
their autonomy or theirindependence, okay.
And so we want people to stillbe able to have independence,
(05:54):
not have to go to court and allof their rights taken away from
them in order to simply protectthem from someone or to simply
be able to write checks for them.
Okay, I think it is the ethicalresponsibility of attorneys, and
particularly elder lawattorneys, to prioritize client
autonomy whenever possible.
(06:14):
Absolutely, go to great linksand our ethical rules actually
say and if you've not read therule on diminished capacity, go
read the rule and focus on thosecomments.
Okay, the rule and the commentsare very clear that we are to
(06:37):
take steps to fosterindependence in our clients, to
foster the ability to be able tosign documents, to do things,
and it is in our ethical code toprotect people, to maintain
their autonomy as much aspossible.
If absolutely a guardianship isthe only thing we can do, if
(07:00):
they are truly incapacitated andwe need a guardianship, sure,
let's do the guardianship, butmy complaint is I think that is
reached way too early.
Okay, and I'll go through thatsoon.
How we do this, how we protectpeople, is there are legal
instruments there to safeguardautonomy.
(07:21):
Safeguard autonomy, all right,and early planning is crucial.
I spend almost all of my sparetime, my marketing budget,
everything is to get this doneearly.
Please come see us early.
Let's get some documents inplace and the primary document
to do that is powers of attorney, both financial and medical,
(07:45):
along with advanced directives.
Okay, we need to get peopleinto the office.
We need to get them in andconvince them that they need to
do a power of attorney, and Ithink if an elderly or you know,
I'm saying elderly, but if,pretty much, if any client
leaves your office without doinga power of attorney, you've not
(08:06):
done your job well.
I know that's a bold statement,but it's true.
I think everyone over the age of18 needs to have a power of
attorney in place, particularlysomeone who is over 50, 60, 70
years old.
It is crucial.
They will spend some timeincapacitated, unless they just
(08:26):
drop dead, have a stroke thatyou know absolutely immediately
renders them incapacitated, orsome accident they fall, hit
their head, car wreck, whateverYou're going to spend some time
incapacitated, and many times.
That progression to incapacityis not sudden.
(08:47):
Like I just mentioned, it's aprogression, and trying to
figure out when in thatprogression should we jump in
and take over is difficult.
It's difficult from a practicalstandpoint.
We don't want to do it tooearly.
But then if we know it's timeto do it, but the person
themselves still thinks they'reokay, they don't think
(09:09):
anything's wrong with them, therest of the world is crazy.
Trying to jump in and do whatneeds to be done to protect them
without taking them to courtbecomes a problem, and all of
that can be solved with animmediately effective power of
attorney.
Okay, so we do a power ofattorney and I convince my
(09:30):
clients look, if you trust thisperson that you're naming as the
agent to be your agent.
If you trust them today, youshould trust them always, okay,
not just when you becomeincapacitated.
Let's have them step in andstart doing things.
Let's have them out there ready, willing and able to do things
immediately.
They're not going to doanything While you can still
(09:52):
sign checks and do things.
They're busy, I'm sure, andthey're not going to get too
busy-bodied in your life.
They have a life.
They're going to do things, butwhen they need to do something,
there's no other hoops to jumpthrough and they can just step
up and start doing it.
So one of my recommendations isabsolutely do an immediately
(10:13):
effective power of attorney sowe don't have to spring it to
life Okay.
A properly prepared power ofattorney will help save this
person's estate, save theirdignity, save everything, and I
encourage you if you are usingyour state's statutory power of
(10:34):
attorney.
The ones I've seen are all verysimilar.
There's typically a list ofpowers 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'mtelling my client okay, these
next seven are like superpowersgifting, changing beneficiaries,
(10:57):
closing bank accounts, thingslike that.
I call those superpowers andI'm like look, I highly
recommend that you initial thoseseven superpowers because we
want the agent to be able to dowhatever needs to be done.
And once someone explains tothem the importance of gifting,
(11:18):
the importance of closing bankaccounts, particularly if
they're being scammed and wejust can't get them to not stop
writing checks to what theythink is the Nigerian prince,
you know we've got to jump inand do something, and how we do
something is we jump in andclose the bank account, shut it
down, move the money where theycan't get to it and it is
(11:40):
therefore protected.
Okay, so a very comprehensivefinancial power of attorney
authorizing all of the powers isabsolutely crucial.
(12:07):
Do a guardianship because,between your financial power of
attorney and your healthcarepower of attorney, your agent
has the ability to do whateverneeds to be done in any
situation.
The two times that we may needto do a guardianship is number
one if a person won't stay wherethey need to stay or go where
they need to go, meaningtypically nursing home.
If everybody says look, msJones, you need to stay in the
(12:31):
nursing home, she got therebecause she went into the
hospital.
Some injury, illness, whatever,put her into the hospital.
Then they went from thehospital to the nursing home
under Medicare rehab and she didnot progress like they thought
she would.
Then she would need to stay inthe nursing home.
She's like nope, I'm notstaying, okay.
(12:52):
Well, that's a situation whereif she absolutely is insisting
on walking out the door, then wemay need to do a guardianship
to take physical control of herwithout kidnapping or unlawfully
detaining her.
We get a guardianship so we cansay, no, you're not leaving,
okay, or you go.
(13:14):
If they don't go when they needto go, they're at home.
They need to go to the nursinghome and they've almost burned
the house down.
They keep falling, they're notbathing, they're not taking
their meds, whatever and theywon't let anyone in the house.
You know it's just a badsituation and they need to go to
the nursing home but refuse togo.
We would need a guardianship todo that, okay.
(13:36):
The second situation that I see, where sometimes I'm like you
know, I hate it, but we need aguardianship.
I call it the serial POAs.
This is when typically a mom,sometimes a dad, but the older
person is being undulyinfluenced by different children
to create a POA for them.
(13:57):
Okay, meaning, you know, msJones comes to me with child A,
we sit down.
You know, I've seen child A outof the room.
I'm like, ms Jones, um, do youtrust child A?
Yep, she's good, she's beenthere helping me, she's fine.
I'm like do you have otherchildren?
Yeah, but they're, they're notthat involved in this one child.
(14:18):
This one child has always quoteborrowed money but never paid
it back, or is always needingthings or doing things.
And this child A does protectme and I think this is a good
idea.
I'm like, okay, great, let's doit.
So we do that power of attorney.
Well then, a few weeks later,child A calls me and says hey,
(14:39):
child B took mom to anotherattorney and she did power of
attorney appointing child BBring mom back in, I'll talk to
her and I'll bring them back in.
She's like, oh yeah, I didn'twant to appoint child B, but you
know, they just said they wouldstop coming to visit, or they
said they were about to losetheir house, or you know some
sob story, why they needed money.
(15:00):
And so she appointed child B aspower of attorney.
I'm like, well, you told me theother 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 thatpower of attorney, okay, good.
And so we do it.
And then child C or child Bcomes back and it's just back
and forth and so that she'sdoing POA after POA, after POA
(15:24):
or serial POAs.
In that situation where I justcan'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 reallynot incapacitated.
And in Arkansas that would beknown as a conservatorship to
(15:45):
say, judge, we just need you tosupervise this and know that
this can't be changed unlesspeople come back to court and
convince you that it needs to bechanged.
And so that is aconservatorship.
I don't like it.
But it is one of the twosituations where we do need to
do guardianship.
(16:06):
I think everybody understandsthe thresholds of establishing a
guardianship, which I think ispushed on the low side.
I've had full meetings withpeople who come into me.
It's like, yeah, I want toappoint this child as POA and we
have a very good, fullconversation and she completely
understands everything that'sgoing on and I'm like, okay,
(16:26):
this makes sense.
And then somewhere in themeeting she's like does it
matter that I have aguardianship over me?
And I'm like what?
She's like, yeah, a few yearsago my son got a guardianship
over me and I was like, okay,but you're fine.
She said, well, they said I wasdiagnosed with dementia and so
they needed a guardianship.
So say, I'm not just makingthis up, I'm not just
(16:48):
complaining, I'm saying thishappens all the time.
And I was like, but you're fine.
And she said, well, I didn'tcontest it.
And the judge was like, yeah,she has dementia, so let's do a
guardianship.
I said, yeah, that matters, Ican't do anything because with a
guardianship, chances are youdon't have the power to do this.
And so I forget what happened.
(17:09):
This was, you know, the mostblaring situation was quite a
few years ago and it's just like, yeah, this happens all the
time and it's just, it'sextremely frustrating Drafting
POAs again.
Let me just kind of get back tothat.
I have notes here and I don'tfollow my notes like I should.
I get off on tangents.
I just covered point four in, Ithink, point one.
(17:31):
So anyway, point four isdrafting powers of attorney to
support autonomy.
Okay, make the powers ofattorney very comprehensive,
very encompassing, so thatanything that needs to be done
can be done by the agent.
Now let's talk about agents.
Who needs to be the agent?
Well, for the financial powerof attorney, this ideally is a
(17:57):
child that is nearby, but withtoday's technology, the
financial agent doesn't have tolive nearby.
The financial agent doesn'thave to live nearby it's
convenient, but they don't haveto.
With online banking andovernight, you know FedEx and
emails and all kinds of thingsAn agent can function fairly
(18:19):
well from a distance withouthaving to be right here.
But it is very convenient to belocal to check the mail and
you'll go to the bank with momor dad or whatever.
So it is convenient, but it'snot necessary.
But this person needs to begood with money.
They need to be responsible,they need to recognize that a
(18:41):
bank account's getting low or beable to anticipate bills coming
.
I mean they need to have somefinancial mindfulness to take
care of mom or dad's money ortheir friend's money, whoever
they appoint as the financialpower of attorney.
I do separate healthcare powersof attorney because many times
the person who's really goodwith money may not be the person
(19:03):
that you want to be deciding ifyou live or die, or telling you
know the doctors what to do.
I've seen a whole lot offamilies where one child is
financial they're a CPA, bank orwhatever, and they're very good
with money and then the otherchild goes the opposite
direction, is really good inscience, you know medicine or
(19:23):
whatever.
They're doctor, nurse, you knowsome kind of medical person.
Well, that just makes sense.
Let the one child be thefinancial power of attorney, let
the other child be the medicalpower of attorney.
So I think it's our job asattorneys to help, you know,
encourage this and you know,walk with our clients through
(19:46):
this situation to say this iswhat we're going to do, this is
how we're going to do this, andgive them ideas exactly on what
to do.
Okay, so I think that's our job.
It is important to educateclients.
People think, oh, I don't needa power of attorney until I need
it.
Well, it's too late once youneed it.
(20:07):
Okay, and you know, opencommunication within the family
is crucial and when I dopresentations, I always talk
about power of attorney.
And just quick story, quite afew years ago, during COVID, I
was doing an online version ofmy in-person Coffee with the
(20:30):
Pros, and so people had signedup 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 bethere.
And so they showed up and youknow, they were just watching
and they were quiet.
And I told him I said, afterwe're done with this, send call,
(20:52):
stick around, let me know whatyou think.
And they're like okay.
So I did the whole thing.
It was about an hour long hourand 15 minutes or so and all I
do is answer questions.
You know, people ask questionsand I answer it and back and
forth.
And so we got through and I waslike okay, thank you, bye.
And so those two ladies stayedon and they just they brushed
(21:16):
out laughing.
I was like what is so funny?
And they said we were justtexting each other.
They weren't sitting together,they were in different locations
also and they said we were justtexting each other.
It's like, todd, the answer toany 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
(21:39):
doesn't matter what they askabout, you were always able to
steer it back to.
You've got to do your power ofattorney, she said.
They said it didn't seemartificial.
It didn't seem first, it wasjust a natural progression of oh
, you own a house, well, what ifyou can't sign the deed and we
need to sign it?
You need a power of attorney todo that or you know just any
(22:03):
such way.
They said every single questionyou would answer and eventually
have some way to lead it backto.
You have to do the power ofattorney and I tell people all
the time I like to dress like Idress, which is a khaki and
pullover typically, or button upshirt.
I don't like to put on a suitand I always tell people if your
(22:23):
attorney has to put on a suitand go to court for you, it's
going to cost you a lot of moneyand I will tell you as an elder
law estate planning attorney.
If you were to ask me what isthe most important document you
can do, you'd probably thinkobviously a trust, a will or
something like that.
I said no, it's a power ofattorney.
It is absolutely the mostimportant document you can do.
(22:45):
Everyone over the age of 18should do it, and particularly
if you are advancing in age,then you absolutely have to do a
power of attorney because youare going to spend some time
incapacitated.
Okay, so you know you have toeducate clients and families to
do this.
Now, briefly, I do a wholepodcast on this, but let me just
(23:09):
briefly say this when is toolate for someone to sign a power
of attorney?
In a quick nutshell, it'sprobably later than you think.
Okay, so our ethical rules saywe have an obligation to
facilitate, to help the clienthave capacity when it comes time
(23:32):
to sign the day.
When it comes time to sign,pick the time of day.
Most people with dementia.
They are better in the morningsthan they are at night.
You've probably heard ofsundowner syndrome.
It's like later in the daytheir brain's tired, they've
been up and they just startacting a little more.
The dementia starts showingmore.
(23:53):
Let me put it that way thedementia appears to be worse in
the afternoon than it is in themorning.
You can work with someone inthe morning who's pretty clear,
even though they have fairlyadvanced dementia.
In the morning they can say,yeah, that's my son, he handles
my business and I want him to bemy financial power attorney.
(24:13):
This is my daughter.
She's a physician.
I want her to be my healthcarepower of attorney.
This is my daughter, she's aphysician.
I want her to be my health carepower of attorney.
Great, let's drop the documentsand sign it.
Whereas if you brought thisperson in for the four o'clock
appointment, they may not knowwho you are, who their kids are.
Their brain is tired, they'veshut down and it's like they
(24:34):
truly have really bad dementia.
Okay, and so that leads toanother point of getting a
doctor's letter to help youprove capacity, I say is
absolutely not necessary and Ido not recommend it, because
(24:54):
when's the doctor going to seethem?
That is one time, you know, one10 minute meeting, probably
during the day.
We don't know when the doctorsaw them, we don't know what
their day was like, and I willtell you.
If I have a client come in atnine or 10 o'clock in the
morning and they're not doingwell, I'll say okay, let's try
again tomorrow.
(25:14):
How was their night?
Did they sleep well?
Did they eat good breakfast?
Did you give them theirmedication?
They're like oh well, there wasthis or that or whatever.
It's like okay, let's do itagain another day at the same
time and you may be verysurprised that the person once
you assist them and facilitatecomprehension, you can get it a
(25:38):
lot of times when most peoplewould not and a doctor's letter
is not necessary for you toprove this person has capacity.
I know stepping on toes when Igrade the CELA exams I won't
fail someone for saying this butit does rub me the wrong way.
When there is a dementiaquestion, they're like oh, I
(25:59):
would absolutely have thephysician write a letter.
I'm like no, no, don't likethis answer.
Okay, ending on the other thing, if the rest of the answer is
really good, I'll say okay, I'lllet it slide.
I don't agree with that.
But sometimes if they say thatthe other parts of the answer
are also not good and it's likesorry, dude, you failed this
(26:21):
question, so don't put that.
If you're about to take theCELA exam, don't put that in
your answer.
I've been doing this for 25years.
I have thousands of situationswhere doing the powers of
attorney allowed the family todo stuff when mom got to the
point she was not able to makedecisions.
And I get cards, I get letters,I get phone calls.
(26:43):
Particularly, I always bringfamilies in after my client
passes away and I think it's afantastic story when I don't
hear from them during thisprocess.
You know, mom got bad.
She had dementia.
She was, you know,incapacitated for a length of
time.
She declined, she passed away.
(27:04):
And they're like hey, todd, mompassed away.
When you come see us, likegreat, come on in.
And so they come in.
I'm like I'm sorry to hear thatmom died, but did you have any
problems?
They're like, no, all thosedocuments allowed us to talk to
the doctors, talk to the bank.
We did everything we needed todo.
We did not need a lawyer, wedid not need court, it just
(27:24):
progressed.
I'm like that's the greatestsuccess story I could ever have
is having a family sayeverything went great.
If this is not how you practice,if this is completely new to
you, let's talk.
I would love to be your elderlaw coach.
I would love to help you getthis portion of your practice I
(27:48):
won't say fixed, but not thatit's broke.
I want to get it better.
Let's improve this area of yourpractice so that you can see
people.
And if you make a living doingguardianships, 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.
(28:10):
Let's give the family the toolsthat they need to do what needs
to be done to protect thesepeople without having to go to
court.
Okay, um, I would love to workwith you.
I have all the training thatyou need on this.
I have videos.
You get two hours of phone callswith me every month when you
sign up.
Um, I, I, I want to be yourpartner not legally your partner
(28:35):
, but I want to walk you throughthis.
I want to see you go from notknowing much to knowing a lot
and having a thriving, busyelder law practice that you are
truly making a difference in Alot of lives.
You hire, you know, half adozen people to help them, help
you, and everybody does well andeverything goes fantastic and
(28:58):
you do what I truly think is thebest job in the world.
So, um, please give us a call.
Please visit theelderlawcoachcom website.
There's a place there you canschedule a phone call with me.
Um, if you need Tricia, you can.
You can always call her.
I don't have the number rightin front of me, it'll be in the
(29:18):
show notes, but, yeah, give hera call.
Visit the website, let's tapFirst.
Phone call is no pressure.
I actually talk people out ofcoaching quite a bit because
they're just not ready yet.
I will not pressure you into it.
We'll talk and if it feels likea good fit, if it is something
that you want to do, let's do itand, like I said, do the best
(29:41):
job in the world.
All right, thank you all verymuch and I will see you all next
time.
Speaker 1 (29:46):
Thank you for joining this episode of the Elder Law
Coach Podcast.
For those eager to take theirelder law practice to new
heights and are interested inTodd's acclaimed coaching
program, visitwwwtheelderlawcoachcom.
(30:08):
With Todd Whatley by your side,the journey to becoming an
elder law authority has neverbeen more achievable.
Until next time, keep learning,keep growing and stay
passionate about elder law.
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