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Posted February 7, 2006

Ask An Expert

Legal: When the Daughter Doesn't Act Like One

Q. I’ve been working for an elderly man with Parkinson’s for the last nine months on a daily basis! You can’t help becoming attached and feeling like they are part of your family and want them happy, feeling the best they possibly can, and making sure they are not mistreated or neglected by anyone. The whole time while making sure his needs are met and food is fed -- doctors appointments, medicines changes, personal cleanliness, bills paid, house cleaned, laundry washed, diabetic testing, good days, bad days, nails clipped, watering yards and feeding his dog! I managed it all, as well as my own home with hubby and family of three.

But with me living only around the block and seeing him without help from family or friends, I felt more than obligated to make sure this man was cared for. Oh, by the way, did I mention I did it all for $300 a month? So, as you can see, I wasn’t investing all my time and work for the great pay, but instead for a more rewarding feeling it gave me inside-- a feeling no amount of money could buy. It was my purpose, a sense of pride knowing someone truly appreciated and needed me!

He says all the time he doesn’t know what he would do without me -- but he’s become such a part of my life now, that truly I don’t know what I’d do without him! Even my children love helping him! It’s been a learning experience for us all!

His daughter lives about 300 miles away but can’t see him except for once a year. She is also his power of attorney. Every Sunday, I’d call her and report to her on her father’s condition. We seemed to get along well, and she said I was an answered prayer, helping out the way I do!

Well, she finally came out to visit. I even picked her up from train station. After several days with her father, she began to become bitter towards me, I suppose because her father wanted me still there even though his daughter was there to care for him. When I finally accepted an invitation for evening coffee, I was shocked to see the way she yelled and demanded from him to eat, to be quiet, to do what she thought he should do, even things the doctor had advised wasn’t right for him to do! I finally, after only 10 minutes of her making him so stressed and belittled, could take no more. She was even letting the other caregiver/roommate yell at her father! I had enough and tried in a calm manner to explain no one wants to be bossed around and talked to that way! But needless to say, I think people with control and emotionally disturbed issues often don’t understand rational suggestions and instead would rather insult and threaten.

So, it was a mess and only got worse. She no longer wanted me helping her father and basically made him miserable with threats of sending him to a convalescent home and alternatives like “either you do as I say or else!” When she finally went home, she made arrangements with family members to sit through the day with him, but from 5pm until the following mornings at 8am, he had no one. By the way, he isn’t able to walk alone much less make dinner or bathroom trips. So, of course, when he called even though I was forbidden by her (300 miles away) to help him ever again, I did! And boy in that week when I was gone, things had really run down. No one had him exercise, so of course his strength and stability was very low, not to mention his poor mind confused from all the yells and demands. It all had him stressed to the max which isn’t healthy for Parkinson’s patients.

After raising his spirits and trying to undo the damage his daughter had managed to stir-up, he was feeling and eating much better again. Now she calls my phone threatens me with police and cussing me to stay away – I’m like, this lady is not for real -- right? Wrong!!! She is really mean and doesn’t care what her dad wants or needs; only what she wants him to get matters. This is insane; he is not able to do many activities unassisted but still has his mind and still knows what he wants for himself.

So, is it true that although she is his power of attorney, she has no say unless he can’t answer for himself? Am I in the wrong for caring and helping? Is the law on our side, or can I count on being in much more trouble than I bargained for?

Please, any advice or legal knowledge is appreciated!

 
Candy

A. If the location for what you described was New York, I would advise you to go to a lawyer and file for guardianship of this gentleman.

In New York, the standard for eligibility to file for guardianship is that the petitioner is "concerned about the welfare" of the person affected, and your evident concern would make you eligible. Standards on this point differ by state, and a lawyer would need to advise you of the specific standard in your state, but the general intent of most guardianship statutes is to be rather inclusive in addressing this issue.

New York makes a distinction between guardian "of the property" and guardian "of the person." The first relates primarily to managing money, paying bills, taxes, etc., and collecting income. The second relates to making personal decisions and guiding medical treatments.

In New York, the person who holds a Power of Attorney normally has authority only over property issues unless the person affected has deliberately expanded on the types of authority normally associated with the standard power of attorney. (The word "attorney" in these circumstances can be a bit deceptive; the better description might be power to "serve as my agent.")

In this case, the daughter's Power of Attorney probably authorizes her to pay bills, etc., but I would be surprised to learn that it gave her authority to determine who he can visit him. If I were filing a guardianship petition in a matter such as this, I would be inclined NOT to ask that you be named guardian of his property.  The Power of Attorney should be adequate to manage his finances, and for you to seek power over his money might be unfairly construed as an indication that you were "just interested in his money."

In terms of personal matters, however, the objective of a petition would be to have a judge determine whether his daughter has been making personal decisions on his behalf that are not in his best interests. In New York, the standard for determining the need for a guardian is whether harm has come to the person and/or the person is likely to suffer harm in the future. In this case, given the likely prognosis for someone with Parkinson's disease, I believe the judge would be concerned about what has happened, but the judge might be even more concerned about his future welfare at a point where he might no longer be able to speak, express a preference for deciding who should assist him, etc.

At least in New York, your description of what happened when his daughter was there and what you saw when you returned after her departure would, I believe, provide a reasonable basis for seeking court intervention in the matter. Absent a protective order, granted only by a court upon documented evidence that an individual would be likely to cause significant bodily or emotional harm to someone else, the basic principles of freedom of association apply, and no one other than this man himself has the authority to determine who may visit him.

Even when a guardian of the person is appointed in New York, the Order routinely states that the guardian is still expected to give careful consideration to the person's wishes, and override them only when a wish would clearly result in harm the person was incapable of anticipating.

The man is fortunate to have you as a friend. Given the level of the concern expressed in your letter, and the incidents you cited, I think it would be appropriate for you to at least consult an elder law attorney for an assessment of whether a guardianship petition might be appropriate under the standards applicable in your state.

 

This answer is provided by Howard F. Angione, an  attorney in Queens , New York , whose practice is devoted to the needs of the elderly and those who care for them. Mr. Angione was the principal editor of Elder Law and Guardianship in New York, a practice guide for attorneys, and of the 5th Edition of Harris Trusts and Estates , a three-volume work for attorneys on probate in New York State . He also is a member of the executive committee of the Elder Law Section of the New York State Bar Association. Mr. Angione can be reached at angione@att.net.

 

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