Caveats for Caregivers (1)

Beginning in 2012, on another website, I wrote a series of eight essays based on my experiences in taking care of my mother in the last years of her life.  I have decided to publish them here as well, with very few changes from when I originally wrote them.  One change is that I have replaced the word “caretaker” with “caregiver,” which seems to be the preferred term today.  Although one may be a caregiver for different family members or even for a friend, in giving advice to other caregivers, I will assume, for convenience and ease of expression, that the loved one is the caregiver’s mother, as will often be the case.  This first essay was originally published on April 10, 2012.


Seventeen years ago, my mother and I decided to take the advice one so often hears about getting one’s affairs in order.  We went to a lawyer and had her draw up a will, medical power of attorney, directive to physician, and durable statutory power of attorney for each of us.  Regarding this last document, it requires a physician’s statement attesting to incapacity or incompetence for its execution.  This turned out to be very difficult to get.

A little more than a year ago, my mother had a seizure, which permanently affected her physically and mentally.  I decided it was to time to execute the power of attorney document. The attending physician in the hospital expressed reticence about providing the necessary letter.  My mother’s bills needed paying, so the next day I brought in a couple of checks made out to the cable company and the electric company.  The nurse said that owing to my mother’s mental state, she was not allowed to sign documents.  So, I whipped out the power of attorney and asked her if she would have the doctor put that in writing so that I could execute the document and sign the checks myself.  She referred me to the doctor who was there for the weekend. He said I would need to wait until Monday to speak to the aforementioned attending physician.  On Monday, I spoke to a third doctor, who said that the attending physician had gone on vacation, and she also refused to provide the needed letter. “What about these bills that need to be paid?” I asked. “Just have her sign the checks,” she replied.  So, my mother, who didn’t know what was going on, and was having hallucinations, signed the checks and the bills got paid.

A question occurred to me:  Was this legal?  I doubt it.  I am not a lawyer, but I suspect that it is illegal to knowingly get a mentally incompetent person to sign a check or other document. What I have discovered, however, from this and subsequent incidents, is that there are things that are illegal but acceptable, though no one will ever come right out and say so.  To qualify for this category, two conditions must be met:  (1) You must not be doing it for your own personal gain; and (2) you are only trying to get for your mother that to which she is legally entitled.  Meet both of these conditions, and there are many health care workers and civil servants who will look the other way, because they know you are in a catch-22 situation.

The next time my mother went into the hospital, I decided to try again.  I asked the attending physician on that occasion for the necessary letter.  He referred me to my mother’s neurologist. The neurologist opined that the letter should come from the attending physician.  So, I gave up.  Fortunately, my mother continued to sign whatever I stuck in front of her.

Eventually, my mother’s cognitive ability declined to the point that I was able to get her primary care physician to provide me with the necessary letter.  From my first attempt to obtain this letter until I finally succeeded was nine months.

When I went to my mother’s bank, which is also my own, and gave one of the bank officers a copy of the power of attorney, accompanied by the doctor’s letter, the bank officer looked at the power of attorney document and said, “Oh.  It’s too old.”  “But the whole idea,” I replied, somewhat stunned at the remark, “is to have this drawn up in advance, while you are still mentally sound.”  After discussing it with the manager, she accepted it, possibly because my mother and I had been doing business there for twenty years.  In general, you should speak to the financial institutions in which your mother has money to find out if they have special rules or forms to fill out before you contact a lawyer about drawing up a power of attorney document.

The power of attorney document that my mother signed clearly states that I have the power to handle her Social Security checks and any other federal benefits or pensions.  It might just as well have stated that I have the power to jump over the moon.  Now, my mother is a triple dipper.  She receives a check from Social Security, the Office of Personnel Management, and the Department of Defense.  They all have one thing in common: they do not accept power of attorney.  Instead, they each require that I become her representative payee.  Not one person in a hundred has even heard of this expression, including, apparently, my lawyer.

You might suppose that there would be one procedure for becoming a representative payee, which would then apply to each agency or department. But that would require the application of reason and common sense. Instead, each agency or department has its own rules, regarding which there is no coordination or reciprocity.  Of the three, the Office of Personnel Management proved to have the most onerous conditions.  They sent me a letter saying that in lieu of my being my mother’s court appointed fiduciary, I could become her representative payee by sending in a doctor’s statement and two affidavits from two people stating my mother’s condition and incapacity.  As I am a bachelor and an only child, there is no one else in my family who could sign such an affidavit.  The only people who know firsthand what my mother’s condition is are the nursing home employees where she presently resides, and nursing homes have a policy of not allowing their employees to sign affidavits.

As an added obstacle, each affidavit would have to state why it is that I have not become my mother’s court appointed fiduciary. When I read this letter, I thought to myself:  “How is anyone supposed to know why I have not become my mother’s court appointed fiduciary, when I don’t know the answer to that myself?”  I suppose the answer would be that I thought my power of attorney would be enough.  But how would a prospective affiant know that unless I told him?  And my telling him would not provide the independent information that the affidavit is supposed to represent.

The result is that I am now in the process of becoming my mother’s legal guardian.  This will allow me to become her representative payee, which will give me the power to handle her Social Security checks and any other federal benefits or pensions.  At least, that is what my lawyer tells me.  Maybe this time she is right.

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