Question of Care : For Elderly, New Gray Areas in Law

When the elderly couple failed to emerge for several days from their white ranch-style home in a residential Los Angeles neighborhood, worried neighbors checked to find out what was wrong.

The husband and wife, each about 90, had simply stopped taking care of themselves. Their home of 30 years, nestled behind pink-flowered bushes, was infested with fleas and gnats. The man’s hearing aid needed batteries. The woman required treatment for malnutrition.

So the questions arose: Who should untangle the couple’s neglected affairs? How should their money be handled? What about maintaining their home?

Legal Furor Generated

The couple had no children or any arrangements for such a situation. Ultimately, a private agency, a neighbor and a distant nephew were drawn into the vacuum, setting off a legal imbroglio over such vital decisions as where the two should live and whether to sell the house--with the couple having very little to say in the matter.

The couple’s plight--their inability to manage their affairs any longer--is one to which society traditionally has paid little attention. But now, as more people live longer, sometimes alone, such problems are gaining the attention of public officials, social workers, attorneys and researchers.

The plight may be obvious, such as when a person sets the kitchen on fire because he or she no longer is able to cook a meal safely. Or it can stay hidden from friends and neighbors for many months, as may be the case when a person gradually loses track of bills, taxes, bank accounts and other financial affairs.

Depended on Families More

“There are a growing number of people in metropolitan areas like Los Angeles and San Diego who don’t have family that are willing to take over these functions if they become incapacitated,” said Jack McKay, who directs a nonprofit organization in San Francisco that helps manage financial and other affairs for old people who no longer can handle their own. “In the past, most people didn’t live as long as they do now--and they depended on their family more when they did.”

Actually, families continue to provide the vast majority of personal help received by persons over 65, said Elaine Brody, a Philadelphia researcher who has studied the issue for the federal government. But it is easy to see why there is growing concern: The number of Americans 75 or over, already at 11.3 million, 4.8% of the population, is projected to reach 17.2 million, 6.4% of the population, by the turn of the century.

By the time persons born in the years after World War II are elderly, the 75-plus group will number 30 million, nearly 10% of the population. Already, between 15% and 20% of those over 65 may need “considerable help” in their daily activities, said Brody, who is associate research director at the Philadelphia Geriatric Center.

In addition, lower birth rates, higher divorce rates and the emerging phenomenon of extremely old people with offspring who also are old combine to cast uncertainty over the role families will play in supporting the elderly in the coming years.

“Hundred-year-olds can’t move in with their children when their children are in their eighties,” said Margaret L. Campbell, a researcher at the University of Southern California’s Andrus Gerontology Center. “It’s not just the case that the elderly have been abandoned. It’s that the elderly are much older than they used to be, and the kids who would be taking them in are much older.”

Variety of Activities

The changing conditions have spawned a variety of activities in an area that most persons, perhaps, would prefer not to think about:

--The U.S. Department of Health and Human Services is financing an $83,000 study at USC’s Andrus center to examine cases turned over to Los Angeles County authorities involving old people who fail to manage their affairs and to consider options for resolving their problems outside the courtroom.

--California lawmakers, along with counterparts in most other states, have enacted laws in recent years allowing persons to designate others to make key decisions for them in case they lose the ability to manage their affairs.

--The American Bar Assn. plans to highlight the problems of the elderly by informing members about various legal concerns that may arise for the elderly and by reviewing state laws that govern such situations. “You’re going to be seeing more activity in this field in the coming months than in the history of the ABA,” said John C. Shepherd, the association’s president.

Diverse and Vexing

The problems officials may face are diverse and vexing. Situations brought to the attention of USC researchers amount to a poignant catalogue of old persons fighting decline with limited success:

An 85-year-old woman on a fixed income gives all her money to charity, leaving herself nothing to survive on. An 86-year-old widow fails for six months to collect rent from a tenant, thus jeopardizing her own financial security. An elderly drifter is owed six Social Security checks, but the agency has no address to which to send them.

An 81-year-old woman allows her utilities to be shut off for non-payment, even though she has money in the bank and Social Security income. She refuses to allow social service workers into her home. An 80-year-old resident of a retirement hotel becomes “very difficult” after a friend stops managing his financial affairs. The hotel is willing to let him stay but not willing to handle his money.

“Some people simply never had the skills (for money management), and the modern world is just too hard to keep track of,” said Raymond M. Steinberg, who is directing a study of 250 cases at USC. “Sometimes the relatives take over and the person is scared to say anything. Then, there are those who are mentally incapable.”

New Forms of Intervention

Often, family members intervene to prevent their relatives’ situations from getting desperate. As society ages, the intervention takes new forms: “I’m hearing more and more about adult grandchildren taking care of their parents and great-grandparents,” Brody said.

But in some cases, family assistance is not entirely altruistic. “I think we underestimate the vested interest that families have,” Steinberg said. “Sometimes, they shortchange the long-term care in order to preserve the estate.”

Lack of close family ties made the situation worse for the Los Angeles couple who failed to emerge from their home. Because there was no relative ready to step in at first, a judge placed a private agency in charge of their affairs.

This setup is known as a conservatorship, and it is the traditional remedy for situations in which persons are deemed to lack the capacity to responsibly manage their own affairs. The court-appointed third party, often an adult child acting on behalf of an ailing parent, is put in charge of the individual and given authority to make such basic decisions as where the person should live and how his or her money should be spent.

Loss of Privacy, Rights

Theoretically, conservatorship protects the troubled individual because it is reviewed periodically by the court. But it entails the loss of privacy, rights, dignity--and requires continuing legal fees.

In the case of the Los Angeles couple, the husband died on Thanksgiving, 1983, shortly after being transferred to a nursing home. Meanwhile, a distant relative emerged to serve as the wife’s conservator. The relative arranged for her to leave the nursing home where she had been placed by the agency and brought her back to her own home, where she remains to this day with live-in assistance.

Irene L. Silverman, who served as the relative’s attorney during the legal wrangle, pointed out that many headaches could have been avoided if the elderly couple had made formal arrangements for their affairs before they lost the ability to run them.

A frequent cause of problems like this is senility or dementia, conditions similar to Alzheimer’s disease that, at their most severe, render the victim incapable of making the simplest of decisions.

Dr. Lon White, a physician and researcher with the National Institute on Aging, said that studies suggest that dementia may affect only 2% of 65-year-olds but that the percentage soars with age. At 80, 16% may suffer to some degree. By 85, the figure is around 32%.

As a result, dementia could be a “health problem of major magnitude” by the turn of the century, unless medical science achieves major breakthroughs in treatment, White said.

Despite this ominous outlook, few charitable groups or agencies routinely step in to manage household finances when persons lose the mental capacity to do it themselves. To fill that gap, advocates for the elderly and attorneys who specialize in such problems are promoting legal arrangements that allow for decisions to be made on behalf of an incapacitated person but may be less restrictive and costly than a conservatorship.

One new approach is to emphasize what New York attorney Robert Wolf calls “life planning,” which, unlike more traditional estate planning, assumes that people may need to have arrangements in place for the handling of their assets while they are still alive.

‘Prepare . . . for Worst’

“We’re trying to educate lawyers and prepare clients for the worst,” said the bar association’s Shepherd. “As medical science continues to prolong life, it’s not just enough to prepare a will anymore.”

The principal alternatives to conservatorship are an expanded power of attorney, known as “durable” power, and a trust. Each has advantages and disadvantages, depending on the specific case. In any event, a person is dependent on the trustworthiness of his or her representatives, particularly if arrangements are vague.

Under the durable power of attorney, available in California since 1982 (and most other states in recent years), a person may select someone to handle important matters such as contracts, investments, taxes and a business. It can be restricted to some of those matters or defined broadly.

Unlike a traditional power of attorney, it may be set up to take effect if the individual becomes incapacitated. By contrast, the traditional power of attorney is not recognized if the individual loses mental capacity. And the person seeking the arrangement for durable power of attorney can revoke it at any time, unlike a conservatorship, which requires court action to modify.

Case of Factory Worker

Silverman recalled the case of a factory worker, about 60, who went to work one day a year ago and forgot what he was doing. Fearing the onset of Alzheimer’s disease, which was later diagnosed, the worker signed a two-part durable power of attorney, allowing his wife and a daughter to make decisions for him jointly.

“If you give it (power of attorney) to the right individual, it’s marvelous,” said McKay of San Francisco. “If you give it to the wrong individual, it’s a license to steal.”

A related power of attorney governing health-care decisions took effect in California last year. It gives a designated representative most of the prerogatives that the patient has, for example, in choosing among different forms of therapy for cancer. Certain areas are specifically excluded from this power, such as abortion and sterilization, or any treatment against the patient’s will.

A person’s financial affairs may also be handled through an agreement known as a living trust. Under this setup, the assets are transferred from the person to the trust. The person spells out how they should be used and picks a manager of the trust who serves at his pleasure. In addition, a trust may also designate how the assets are to be distributed after the person’s death.

Cost a Factor in Trusts

A disadvantage of trusts is their cost, both in the legal fees of setting one up and the cost of continued administration. As a result, they may be best suited to the more well off.

“For somebody with assets in the six figures, a trust is probably the way to go,” said Wolf, who noted that his clients range in age from 30 to 101.

Most often, people make no such arrangements, relying instead on friends and neighbors or such makeshift devices as checking accounts shared with their children.

“Typically, they put together a mishmash and cross their fingers,” said Michael Gilfix, a Palo Alto attorney who specializes in such problems.

Despite the ABA’s spotlighting of the situation, only a few attorneys specialize in the area. For some, perhaps, a disincentive is the fact that older clients are not widely perceived as a lucrative source of income. But, even for those who do specialize, the graying of the legal market can bring surprises.

Attorney’s Advice Sought

Gilfix recalled the time that he was approached by an 81-year-old man after the attorney had given a lecture on Alzheimer’s disease in Palo Alto. The man sought advice about a woman whose life savings were disappearing in nursing home costs.

“I thought he was talking about his wife or his daughter,” Gilfix recalled. “He was talking about his mother, who was 102.”

However well people prepare, it seems likely that they will face dilemmas in the future for which the past provides few obvious lessons. When members of the baby boom generation face the travails of old age, for example, many may do so without the benefit of spouses because of the high divorce rate. That alone raises various questions that cannot be answered yet about the nature of family support that will be available for the elderly in the next century and the kinds of arrangements that the ailing will improvise to handle their affairs.

“People have never had to plan over this period of time before or take into account the complexities that can occur over this much time,” said USC’s Campbell, marveling at the increases in longevity. “This demographic revolution means that we have to go back to the drawing board.”