Elder Law and Probate Attorneys: Fiduciary Representation When Health Professionals Caring for Older Adults Cross Boundaries

By Pamela D. Wilson, MS, BS/BA, NCG, CSA

Health professionals in all specialties become overly attached to clients visiting their practices, living in care communities, or those visited in private homes. Relationships of care, between the health professional and the older adult, become personal. The older adult is viewed as a possession by the health professional—that must be protected at all costs—from the interference of others including family. The frequency of these boundary infractions continues to increase. Elder law and probate attorneys will be contacted to intervene between health and related professionals who believe they know what is in the best interest of the client.

What happens when the efforts of the fiduciary represented, a professional guardian or power of attorney, or a family member acting in these roles is impeded by well-meaning healthcare professionals? What happens when the source of the issue arose from a lack of or improper actions by your fiduciary client? What happens when the source of the issue was healthcare staff negligence?

What is your role as an elder law and probate attorney to advise fiduciaries of their responsibilities and to represent them when issue arise? What happens when adult protective services files for guardianship as the result of being contacted by a physician or other healthcare provider, Do you know the questions to ask? Do you know how to build a plan that eliminates the concerns of adult protective services, the ombudsman, and the healthcare professionals advocating against your client?

Good Intentions Result in Conflict

Health professionals become involved in situations with older adults at various stages. Many do not have access to the extensive history or situational backgrounds to understand known issues or longstanding complications. The results are actions initiated by healthcare professionals, who intend to be helpful, but who obstruct the actions of professionals and families managing the care of the client.

Outside parties like the police, adult protective services, the ombudsman, the department of health or other advocacy services may be contacted. The situation may quickly veer out of control with family or the professional fiduciary being advised after the fact. As a professional fiduciary, I have been involved in these situations that quickly take on a life of their own.

Conflict occurs between health professionals and the guardian or power of attorney over differences of opinion about the care of the client. Where money is involved to private pay for home visits or monthly rents at care communities, personal interests may be involved. This is relevant when the fiduciary decides to change or reduce in home care hours or decides to move the client from the current care community. A change in revenue stream may motivate health professionals to advocate for what they believe is needed by the client.

Rather than working together as a team, being transparent about concerns, and initiating open discussions, healthcare professionals and professional fiduciaries may work at odds. Triangulation, common in family caregiving situations, is supported by healthcare professionals who feel their role is to protect the client against family or professional fiduciaries. Fiduciaries feel threatened by healthcare professionals. A point of no return occurs and elder law and probate attorneys are retained by fiduciaries for protection and advocacy.

Health professionals may be the mandatory reporters that foster investigations of alleged elder abuse by the police and adult protective services. In these situations, the fiduciary’s actions may be in question. The opposite also occurs, healthcare staff may be under investigation resulting from a report by a professional or family fiduciary. Depending on the action, a complaint investigation may also be investigated with the department of health or a local police department.

Having Fiduciary Responsibility for Older Adults Requires Better than Average Skills

Managing the care of older adults is unpredictable. Professional fiduciaries serving as guardian or medical power of attorney are contacted multiple times in a single day to solve problems and make decisions. Urinary tract infections result in delusional behaviors and hospitalizations. Constipation, if more than a few days, can be serious. Irregular high blood pressure, dehydration, refusing to eat or drink, refusing to get out of bed, or being found unresponsive are routine issues managed by professional fiduciaries.

Family fiduciaries, not having caregiving experience or experience as a medical power of attorney, struggle in these roles. Having fiduciary responsibility for older adults requires better than average skills. This role is not for everyone which should be a consideration for attorneys drafting estate planning documents. Not all appointees have the skills to act in these roles.

Not being an expert in the health history or care wishes of the older adult poses significant risks. Lacking interpersonal and communication skills to negotiate with healthcare professionals is detrimental to care. Not knowing the right questions to ask can be life threatening.

Healthcare professionals—who feel they know better—are unsympathetic to the emotional feelings of stressed out family members they view as incompetent. Tempers rage out of control and words are said that can’t be taken back.

Over the years, in my role as a professional fiduciary, I disagreed with many healthcare professionals because I had been responsible for my client for years, knew the history, and could not in good faith agree to their recommendations. Positive disagreements can result in better care. Collaborating with, rather than discounting the opinions of, healthcare professionals can be a learning experience and improve relationships to support the care of older adults.

Being Proactive May Resolve Boundary Situations

As an elder law or probate attorney you may be new to situations of healthcare professionals crossing boundaries. Contact from professional or family fiduciaries may be rare about these types of issues. Situations of needed representation by fiduciaries will increase as the population ages and the healthcare industry is strained to find qualified staff. Misinformation provided by family or professional fiduciaries results in suspicion by healthcare providers. The actions of family members who appear nice but who are unable or unwilling to provide care may be viewed as neglectful by outsiders.

While all professions have rules of conduct, ethics, and standards, the healthcare industry is the most challenged. Professionals in the role of caregiving become attached to clients. Caring for others is an emotional tug of war. The opportunity to cross boundaries exists daily. Healthcare professionals choose to give one client more attention and walk away from a client with difficult behaviors who refuses to eat or bathe. Behaviors and interactions are taken personally. Unintentional neglect and harm occur.

It is important for professional and family fiduciaries to be proactive in managing care for older adults. Maintaining files, requesting and collecting medical information, and documenting all contacts is important. Having documentation of healthcare professional names in all communications as well as documenting the subject matter of the discussions avoids poor recall later. Knowing what medical records should be requested and retained may avoid unintentional medical errors. These subjects should be discussed by elder law and probate attorneys with clients and training offered if gaps in experience occur.

This level of attention to detail results in positive care outcomes if used for the benefit of the older adult. This level of detail also supports avoiding caustic situations with healthcare professionals who have crossed boundaries.

In my years as a professional fiduciary I provided situational assessments for elder law and probate attorneys, adult protective services, and family members wanting to do the right thing. In some situations, it is difficult to know who is telling the truth, especially when multiple family members who dislike each other are involved. Various types of monitoring can be put into place to resolve situations that are unclear. I have also been involved in a variety of situations where healthcare professionals crossed boundaries or provided substandard care.

Below is a short list of situations in which you may have or will become involved on behalf of your fiduciary clients:

• A family fiduciary refuses to acknowledge the extent of a parent’s dementia. The parent was not safe at home alone. A report was made to the police and adult protective services by the home care agency. Result: After an assessment and multiple interviews with family and the care agency, the client was moved to a memory care community.

• An assisted living community failed to cooperate to allow an assessment to move a client to a skilled nursing community for medical care and increased oversight. The care staff reported that they “loved the client and wanted him to remain with them to die”. Result: After moving and receiving appropriate medical care, the client thrived. Discovered through investigation of assisted living community records was that care staff were improperly providing medications which resulted in the health decline of the client. The belief by the community staff that the client was dying was erroneous, the decline was the direct result of staff actions. A report was made to the department of health.

• Nursing home staff drafted and submitted a legal petition that was signed by a client. The petition requested that the client should live independently and the guardian should be removed from responsibility. Result: Response to the petition noted that there were multiple prior unsuccessful attempts to support the client living independently at great risk to health. The request was denied.

• A daughter petitioned to be guardian for her father who was deemed incompetent in a neuropsychological report. A professional had been acting as medical power of attorney for years. Result: Court hearing presented evidence of abuse by the daughter. Documents were presented to confirm that the daughter was never mentioned in estate planning documents dating back 15 years. Request for guardianship denied. The medical power of attorney remained in place.

In all of the listed situations, documentation of activities and communication supported the positive outcome. It is important that elder law and probate attorneys discuss fiduciary responsibilities with appointed individuals. While this conversation may seem to be on the fringe of responsibility, appointing the right person supports care and potentially avoids situations with boundary crossing healthcare professionals. If at all possible ask the client completing estate documents to invite legal designees to participate in a telephone call or a meeting to discuss fiduciary responsibilities.

It is also important that professional and family fiduciaries consult elder law and probate attorneys early in situations where healthcare professionals or others are crossing boundaries. When confidence or experience is lacking by the fiduciary, the opinions and support of an elder law or probate attorney, or a caregiving expert can be invaluable. Early consultation may avoid situations with healthcare professionals that reach a point of no return and require formal legal representation at a court hearing.

For additional information about support for legal professionals visit Pamela’s speaker page.

© 2018 Pamela D. Wilson, All Rights Reserved.

Pamela D. Wilson, MS, BS/BA, CG, CSA, a National Certified Guardian and Certified Senior Advisor, is a caregiving and elder care expert, advocate, and speaker. Pamela offers family caregivers programming and support to navigate the challenges of providing, navigating, and planning for care. She guides professionals practicing in estate planning, elder and probate law, and financial planning to create plans to address unexpected concerns identified in her past role as a professional fiduciary. Healthcare professionals are supported by Pamela’s expertise to increase responsiveness and sensitivity to the extensive range of care challenges faced by care recipients and caregivers.

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