Health care agent or trustees, who wins?
I am health care agent for my 93 year old mother. She is still living alone. She's still driving and does well physically, but is starting with dementia. I want to take her to a geriatric specialist, but when I looked for her Medicare card, I found out that my brother had taken it. I have two brothers who don't want her to see a specialist because they might take her license away or determine she should not be living alone any longer. I called Medicare and asked for a replacement card. It was to be mailed to my mother within 30 days. My brothers are swearing they haven't seen it - but, they open her mail and pay her bills. The whole issue boils down to money and being inconvenienced for my brothers. I want to do what's right for my mother. Because my brothers are trustees of her estate, they will fight me on anything medical I want to do. What are my options?
Expert Answer
If your mother is still as spry and able as you describe, then she should be the one who is controlling her own medical care.
Take a close look at the document appointing you as your mother's health care agent. If it is like most of them, it legally takes effect only if and when she is no longer able to express he own wishes. A rare few advance directives, however, are written to take effect immediately"”and there is a chance yours is one of them, giving you full legal authority to make all medical decisions for her at once.
If, however, your mother's is the usual type of power of attorney, your best bet is to get her on your side in wanting to consult with the geriatric specialist. If she's bucking the idea, you can simply underscore that this step will help assure that she can live as long and safely as possible. Medical advances and practical ways to ease life and living for older people are increasing daily"”and these specialists are in the know about them. Similar arguments may also help make your brothers understand that seeing such a specialist is likely in your mother's best interest, but they sound like a rather stubborn bunch.
While you did the right thing in requesting a replacement card, you should also know that many specialists will also make an appointment for an examination without having physical evidence of a Medicare card; they might only require her number or Social Security number.
If your brothers have been appointed either trustees of a trust for your mother or as executors of her estate, then they likely have the legal rights only to manage her property for the benefit of her beneficiaries"”and again, this right may likely only arise if she is incapacitated or after her death.
All these questions and legalities aside, however, from a practical standpoint, it sounds as if you and your siblings are engaged in some type of tug of war, with your mother in the middle. In the best world, you will be able to see it in your hearts and souls to have a sort of formal family meeting spelling out the various duties you can all undertake to make your mother most comfortable and secure. If she is up for the task, it might even be most persuasive if your mother presides over the meeting"”or at least clearly expresses her preferences to all of you.