- Ruth Rothbart-Mayer
THE LAWYER, HIS ETHICS AND ME
A few years ago I started working with a woman with mild cognitive impairment. I didn’t know it at the time, but I was witness to the actions of a power of attorney, George M, lawyer, making decisions contrary to the explicit wishes of his client, putting me in an untenable position as the scenario evolved.
After her husband died, Jan called George, a long-time friend of Jan and her husband, and also their lawyer, and asked him to serve as her Power of Attorney. “I don’t have anyone to care for me or make decisions with me now that Don has died. Will you agree to help me?”
George said he would be honored. Together they documented her decisions; George would serve as her financial and medical power of attorney and, since she only had a 2 cousins living in the south whom she didn’t see often, he would function as her health care proxy. Jan also had written into her advanced directive and her will that she wanted to live and die at home. “Don left me enough money. Promise that you’ll follow my wishes.”
George assured her that he would and to assist with that, he would hire a geriatric care manager to act as his “eyes and ears” and be available to Jan for anything she might want or need; from doctors’ appointments, shopping, to meeting friends for lunch or church.
Jan and I developed a strong bond over the following months; she came to rely on me and called if she got confused or forgot things. While her memory was a little vague at 92, she maintained a wicked sense of humor, dressed beautifully and was always game to go out. For five years, until sometime after her 97th birthday, she did very well with assistance from her long-time housekeeper who came in twice a week.
Until the day she fell. Bruised and less steady, she was sent to a rehabilitation facility where her confusion increased but she held on to George’s words the one time he visited Jan, “we’re getting your house ready for you to return.” She wanted updates on the changes; the new path from the driveway to the house and the new, accessible bathroom.
The night before she was to return home George called to say that Jan was staying at the assisted living. His decision was final but Jan was welcome to call him directly. I was not to question this and my role would be to take Jan out for lunch or to shop, to medical appointments, and deal with any issues that arose at the facility. And then he hung up. I knew he was entitled to make that decision; I also knew he was not obligated to tell me why he’d made that decision; his demeanor on the phone made quite clear that he had no interest in my opinion.
I called several lawyers to ask about the legality of George’s decision and if there was any recourse and was told that as Power of Attorney and a lawyer, his judgement wouldn’t be challenged. Though conceivably unethical, George’s judgment was within the scope of his responsibilities, regardless of the “promise” for Jan to go to her own home. I asked what the remedy was. One colleague said, “People should review their decisions every couple of years; make sure the people you name are still available and desirable and that your decisions remain the same or need changing.”
My job, then, was to protect my client, and to make sure she was safe, stimulated and had familiar faces to rely on. At first Jan was still sufficiently competent to write letters to family, and to make and receive calls and express her wishes, so I urged her to contact George, reminding her that he had encouraged her to call. She refused, and as her memory deteriorated further, she was no longer capable of making the call.
Going out with Jan had been fun in the past, but now, returning to the facility, she became agitated, invariably asking “what is this, a hospital? I don’t need a hospital” and refused to go in; sometimes we negotiated for 10 minutes before, with encouragement, she acquiesced. After 6 months she refused to go to activities and skipped meals; gone was her bright and breezy, devil-may-care attitude. She retreated, slumped in a corner chair in the activity area, alone and sad.
Jan got the flu and couldn’t recovered so was placed on hospice care. When I visited I’d softy call her name; she’d open her eyes, nod and then fade. She slipped, cared for by a succession of aides she didn’t know, who took turns sitting by her side or merely attending to her physical needs; the atmosphere was pervaded by bells, voices, things that ticked loudly and carts clanking in the halls.
These were the last sounds she heard.
It was sad to think that Jan could have been in her own home with the people who had grown to love and care for her.