This is my fifth essay on caregiving, first published on another website on July 12, 2012.
In my first essay in this series, I wrote about my discovery that the federal government does not recognize power of attorney as having any legal standing, and that for each agency, office, or department from which my mother receives a check, it would be necessary for me to become her representative payee. They each have their own set of conditions, but especially challenging was the Office of Personnel Management, who said that their preference was that I be my mother’s court appointed fiduciary. Their alternative conditions I was unable to meet, and so I called a lawyer and began the process of becoming my mother’s legal guardian.
My mother had direct deposit for each of her checks, and so there was no immediate need for me to become her representative payee. There was, however, the problem of her mail. Having shut down her apartment, I had the Post Office forward her mail to my apartment as a temporary measure. Then I called Social Security and had her mailing address changed, no questions asked. The Office of Personnel Management, on the other hand, required a letter from my mother. So, I typed one up and got her to sign it. Owing to her dementia, she did not know what she was signing, but I guess the federal government would rather have the genuine signature of an incompetent person than that of someone with power of attorney. Moving right along, when I called the Department of Defense, the woman I spoke to asked if my mother was present, so that she could talk to her and get her approval for me to discuss her affairs. I told her that she was not present, but that even if she were, she would not understand what was being asked of her. As a result, the woman said I would have to become a representative payee before she could even talk to me about my mother’s mailing address. I learned long ago that if you call the federal government, and you do not like the answer you get, call back the next day. There is a good chance that you may like the second answer better. Consequently, the next day I called the Department of Defense again, and the man who answered changed my mother’s mailing address without further ado.
At this point, you may be wondering why I would need to do anything else. Her checks were being directly deposited in her bank account, and the bank recognized my power of attorney. Now that her mailing address had been successfully changed, it would seem that I could just coast. However, it would be just a matter of time before my mother would run out of money and need Medicaid. My mother’s three checks would not be enough to pay for her nursing home expenses, yet they give her an income above the limit allowed by Medicaid. To bridge this gap, many states have qualified income trusts, often called Miller trusts. Once I set up the Miller trust, I will have to direct her checks to this new account, and in order to do that, I will have to be her representative payee. So, it had to be done.
Since I would have to become my mother’s legal guardian to satisfy the Office of Personnel Management, I decided to wait until I had that document before dealing with Social Security or the Department of Defense. The elder care attorney that I had talked to about the Miller trust did not do guardianships, but he recommended someone else. The someone else was actually a divorce lawyer who had done guardianships in the past, but was reluctant to take my case. The fact that my mother had already given me power of attorney, coupled with the fact that I was an only child, precluding the possibility of there being a challenge to my case from one of my siblings, persuaded my attorney that a trial would not be necessary, and that my situation would present no difficulties. So, she agreed to take my case, and I wrote her a check for $3,500 (damn that Office of Personnel Management anyway!).
My lawyer had a busy schedule, so nothing happened for the first two months. Eventually, however, I signed some more forms, and the application was filed. A few weeks later, while I was visiting my mother in the dining room of the nursing home, my mother was served papers, notifying her of my attempt to become her legal guardian, and advising her of her rights, should she have any objections. Of course, my mother was not able to understand the papers, and I was the one who actually took possession of them, but otherwise, all was in order. An old woman sitting at a nearby table looked at my mother, gave me the evil eye, and then looked back at my mother, and said, “Whatever you do, don’t sign anything!” My mother was engrossed in her soup and did not hear her, but it sure made me feel as though I was doing something sneaky.
A couple more weeks passed by, and a court investigator showed up. I guess I should mention that since I am retired, I am able to visit my mother between 10:00 A.M. and 2:30 P.M. every day, which accounts for how I happen to be there when these people show up unannounced. She talked to my mother about the legal guardianship, and my mother sort of understood and approved of it, so all went well. But as can be seen from the dire warning of the old woman of the previous paragraph, some patients in nursing homes will vehemently resist the guardianship process, which can necessitate a trial by jury. Three weeks later, my mother’s attorney ad litem showed up. She is the attorney assigned by the court to represent my mother’s interests. As with the court investigator, all went well.
Technically, I was my mother’s adversary. Now, it only made sense that her attorney’s fees would be paid for by her. But the $3,500 I paid my attorney was also paid for by my mother, thanks to my power of attorney. In other words, my mother was forced to pay for the attorney of her adversary. Strange, but apparently legal. Then I had to put up a bond of about $500, against the possibility of malversation on my part. No problem, Mom paid for that too.
While all this was going on, however, the Department of Defense got wind of my mother’s situation. My mother’s Navy annuity is based on my father’s service. Every year, she receives a Certificate of Eligibility form, asking about her marital status. Apparently, if she were to remarry, she might no longer be eligible for the annuity. If this seems like an intrusion into my mother’s private life, be reassured. At the bottom of the page, it clearly states that “disclosure is voluntary.” It also states, however, that “failure to provide information will result in suspension of annuity payments.” At the time that my mother received this annual request for voluntary information about her marital status, she had recently fallen and broken her hand. Moreover, her dementia had progressed to the point that she would not have been able to sign even with a good hand. Consequently, out of the expedience that comes with exhaustion, I just signed the dang thing with my power of attorney and sent it in.
Now they knew. And now they wanted me to become her representative payee. For this purpose, I had to send in a doctor’s letter stating my mother’s incompetence, and I had to sign an application. I couldn’t believe it. Unlike the conditions required by the Office of Personnel Management, these requirements by the Department of Defense were simplicity itself. Well, there was this one snag. My signature had to be witnessed. The employees at the nursing home could not witness my signature, but there were many patients there who were mentally sound, not to mention the visitors who were always about. I asked a several different people if they would witness my signature, and they each looked at me as though I had asked them if I could sleep on their couch for the next two weeks. So, I gave up on that and went to a notary who witnessed it for free.
In any event, the day of the hearing finally arrived, five months after I started the process, and I was made the legal guardian of my mother’s estate and person. I sent a certified copy to the Office of Personnel Management, along with their forms, and hopefully that will do it. I thought maybe I could do the same with Social Security, but they want a doctor’s statement anyway, and I have to go to their office in person for an interview.
In the meantime, the Aid and Attendance benefit that I had applied for my mother, based on her wartime service as a Navy nurse, was finally approved, after ten arduous months. As part of the application for the benefit, I had sent in a doctor’s statement to the effect that my mother was totally incompetent. Therefore, the Department of Veterans Affairs wants me to become her representative payee. For this purpose, my legal guardianship document was as worthless as my power of attorney. The Office of Personnel Management might regard my status as a court appointed fiduciary as being of significance, but the Department of Veterans Affairs has higher standards than that, by George. What they require is my mother’s signature on a form appointing me as her representative payee. In other words, they require that I be her representative payee, because they know she is incompetent; but her signature on a document, however incompetent she may be, is worth more than the court document that states that my mother is incapable of handling her affairs, which includes such things as signing documents. My mother has since regained her ability to sign her name, but she has become uncooperative of late, so I am unable to get her to sign anything. The VA says I can get her fingerprint on a document if she won’t sign, but it has to be witnessed. I don’t want to go through the degrading process of having people rebuff me when I ask them to witness something, and I don’t want to drag my mother to the notary to have them witness it. I have heard there are mobile notaries that will come to the nursing home, but if my mother refuses to sign her name, she will probably fight any attempt to fingerprint her as well.
I don’t mean to end this essay with a cliffhanger, but I have gone on long enough, and how all this turns out will be revealed in my next essay, if I haven’t completely worn the reader out this time around.