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Monday, June 27, 2016

Nurse named beneficiary by elderly patient stands to inherit a million dollars

When a frail, elderly person changes his or her will to leave everything to his or her latest caregiver, it is usually problematic. This is because the situation involves so many factors that are suspicious, such as leaving out family or friends in favour of the new person, the effect of medications on mental capacity, the question of whether the caregiver influenced the patient, and the fact that the new will is so different from earlier wills the patient made over the years. Any one of those factors alone could be enough to raise suspicion, but taken together they are a recipe for a court challenge.

In Australia, Mr. Lionel Cox, 92 years old and living in a nursing home, recently made a new will less than two weeks before his death, leaving his estate to his caregiver. The new will was not made by a lawyer, and was reportedly witnessed by two other nurses at the home. To read more of the facts of this case, click here to read an article by Charles Ticker, whose blog is called The Sibling Fight.

At the risk of offending caregivers everywhere, I can categorically state that some do take advantage of their clients. Some deliberately set out to influence their patients, undermining the patient's family and talking about how the caregivers care for them more than the kids do. Others are less straightforward and take the attitude of "well, if he wants to leave me a million dollars instead of his kids, that's ok with me", even though they know the patient has lost the ability to think through decisions.

I've been on the receiving end of gratitude of seniors before. More than once, grateful clients have offered to leave me parts of their estates as thanks for my attention and help. However, I know this is inappropriate and would never consider agreeing to it. Not everyone is as willing to turn his or her back on easy money.

In the caregiving world, there are of course thousands of honest, compassionate carers who wouldn't ever take advantage of a patient. I do not mean to paint all with one brush.

I agree with the conclusion reached by Mr. Ticker in his article that when an individual really does want to leave a financial gift to a caregiver, the will should be drawn by a lawyer. The lawyer will assess the situation and form an opinion about the patient's mental capacity to make a will. The lawyer will ask probing questions about why this gift should be made, and will document his or her file with that information. Using an experienced lawyer can help avoid a court challenge.

Some of you are thinking that Mr. Cox was old and frail and could not go out to see a lawyer, and I agree with you. But all the lawyers I know who specialize in wills and estates are more than willing to go see clients in hospitals, hostels, and their homes. The cost of hiring a lawyer to draw the will is much cheaper than the cost of the litigation that is otherwise almost guaranteed to take place.


2 comments:

  1. Just as there are unethical caregivers, there are also unethical lawyers. I think that when the elderly person is a patient in a hospital, the hospital should be informed of any legal documents being signed while the patient is under their care. In our situation a lawyer visited an ICU ward late in the evening to have a new Will signed favoring the elderly man's girlfriend. Luckily, a nurse reported having seen what seemed to be a lawyer at his bedside and competency tests were done that determined the patient was not competent to change their POA, nor sign a new Will. Lawyers should know if a patient is on drugs that alter their competency or if the patient has had recent anesthesia that affects competency. Personally I think that any legal forms signed by a patient in a hospital should be regarded as void if the hospital is not consulted regarding whether the patient is medically competent and given opportunities to withdraw drugs or indicate when the patient might be unaffected and mentally competent (in particular, the use of "medical restraints" can make many elderly patients very suggestible, not only to ensuring they don't pull out medical devices for their own safety, but also to signing something they may not understand).

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    1. Certainly there are unethical people in every job, and lawyers are no exception.

      Lawyers will always have to see clients in the hospital, hospice, or long term care simply because those clients cannot leave their beds. It's definitely a tricky time for all involved. I hope that lawyers who are in this situation keep their wits about them and take a great deal of care when discussing the client's wishes.

      You make a very good point about medications. I always ask about meds being taken by my clients but I'm not a doctor or nurse so I don't have any real knowledge of the effects of any particular drug unless I discuss it with the doctor.

      We are trained to assess mental capacity and as we gain experience we also have our gut feelings to rely on when it comes to any given client. I agree that clients are suggestible in certain situations and sometimes it's heartbreaking to see how eager they are to please those around them.

      Lynne

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