Rights of Seniors

Torture?

Pretty scary word, but if the shoe fits, wear it. If we start from some basic premises, such as government is a necessary evil, and humans are often greedy, we can turn to one of the biggest problems facing seniors in America today: painful and unnecessary surgery.

“Torture” is defined as “To put to torture; to pain extremely; to harass; to vex.” Lets take the example of an Alzheimer’s patient who falls and breaks his hip. The doctor knows that the patient will check out soon, for Alzheimer’s is fatal and incurable. So, what to do? Give the patient a new hip? Or simply pin the old one together and make the patient as comfortable as possible. The doctor makes more money if he gives the patient a new hip. But the senior suffers a great deal more pain if he gets a new hip. Same with other operations. Say, for example, the Alzheimer’s patient has a heart problem that could be fixed with a pacemaker. Does the hospital let the patient simply check out, or does the hospital give the patient a pacemaker, thereby prolonging a meaningless vegetable-like existence at the cost of considerable patient pain? And how does the hospital get consent to operate? Certainly not from the patient as he is incapable of giving consent and were he not incapable, would certainly not consent to incurring needless pain just so he could continue a miserable, brain-dead existence.

Grandparent’s visitation

Right now, under Nevada law, a grandparent has some visitation rights if the grandchild’s parents are divorced, or if one of them is dead. If a parent under these circumstances unreasonably restricts visitation by the grandparent, the courts can intervene.

Incompetence

Some say that “safety,” not “freedom” is America’s new watchword. Perhaps. That a ever-growing percentage of Americans are living far past their prime, whatever the reason, is a fact of modern life. Too many of us today have the “pleasure” of looking forward to a period of extended physical or mental incompetence before we die.

There are three common ways to deal with this situation: guardianship, durable power of attorney and living trust. Sometimes all three are in play. All three, particularly living trusts and durable powers, are fraught with danger to the unwary.

Either a durable economic or health care power of attorney (or both), or a living trust can be helpful here, IF, and it’s a big “If” the events triggering the beginning and end of disability are well defined. Too often the living trust or economic power of attorney will not adequately define the point at which the senior becomes incompetent. The heirs may want to jump the gun to make sure the senior doesn’t make gifts to, say, the proverbial beautiful blonde Swedish nurse. From his standpoint, the senior might just want a relationship with a younger woman. After all, he’s not dead yet. At what point does he lose control of his assets? Many a trustee under a living trust has gone to his ATM only to find that his alternate trustee has taken over his estate. The courts here can be of some assistance if the document authorizing the attorney-in-fact or alternate trustee to assume control adequately defines the matter. More often than not, little or no attention was given to this important factor when the power/living trust was drafted. Some powers/living trusts simply say that the alternate trustee can take over if any licensed physician certifies that you are incompetent. If so, any quack doctor can throw you under the bus, even if you are competent and even if you want to continue in control of your assets. Well drafted documents usually provide the name of the doctor(s) (often the family physician and perhaps a trusted specialist). Alternatively, the document can void the interim trustee’s powers if you object, pending a ruling by a court of competent jurisdiction. In short, be careful what you sign.

More and more today, due to these and similar problems, seniors opt to simply do nothing. No living trust. No power of attorney. This is not at all a bad alternative. In these circumstances, the senior retains control of his assets until a court of competent jurisdiction, after notice and a hearing, determines that he or she is physically or mentally incompetent. This is more expensive on the front end, but gives the senior significant rights. And it’s probably cheaper in the long run as a competency fight can be very expensive. Nevada law permits private professional guardians, being corporations which don’t make a dime unless you are deemed incompetent. They are often more than willing to provide your heirs with the name of a doctor who they know will find almost anyone incompetent.

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