Health care agent or trustees, who wins?

2 answers | Last updated: Aug 04, 2010
Rich45 asked...

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 Answers

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

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.

Community Answers

A fellow caregiver answered...

I have much the same dilemma with siblings. We are all adults in our late 40's or older. I feel like the scapegoat. I am expected to convince my parents to do the things (i.e. move to assisted living, give up driving etc) that the rest of the siblings want. My parent is treated as if totally incompetent and incapable of making decisions. One parent just moved to a nursing home with severe dementia, the other one chooses to live at home. I call daily, visit for a week every 4-6 weeks (live out of state) and another sibling visits 2 X/day.Another relative and pastor visit 2-3 times a week. The siblings causing all the disputes, rarely spend any time with our parents. For example, one lives 25 minutes away and had only seen the parents 2X in 12 months. I spent 88 days living in their home in the last last year, took a leave of absence from work to help and have used all of my vacation to help. So needless to say I feel like I have a better handle on what was really going on in the home with the parents.

My siblings have refused to talk civily about this and do not want to meet with a mediator. I am victim to anger, tantrums, bullying, threats, and harassment as is our mother.