Elder Law with Frank and Mary: Staying in control


A client of mine died peacefully this year in a really wonderful old retirement home that even reserved a hospice room for people who need extra space and support in their last days. This article is not about that home, although it’s a wonderful place to live out the remainder of your life if you can’t manage it on your own. This is about how my client got there, which wasn’t easy. Several years ago my client, who was then healthy and living alone in her home, developed her estate plan as part of which, among other things, she executed a health care proxy naming her out-of-state estranged sister (who is a nurse) as her proxy agent. What she did not do was tell her sister. To my client, the health care proxy was an afterthought. Until it wasn’t.

Last year, I got a call from my client’s brother-in-law, who also lives out-of-state and was named as my client’s power of attorney agent, saying my client had a serious medical emergency that landed her in the hospital. There was no way that she had the physical or mental ability to return home, and there was no way she could make any medical decisions for herself. The hospital contacted the out-of-state sister, who refused to accept the responsibility of dealing with my client’s issues. Neither would the sister’s husband, who had been named as the alternate agent. The hospital staff were frantic, since they could not do anything, including discharge my client, without the assent of the proxy agent.

The only solution was for someone, in this case the brother-in-law who was the power-of-attorney agent, to ask the probate court for a guardianship. When he did, though, and all my client’s other siblings were notified, several of them objected. They did not like the brother-in-law. Then there was the question of whether my client should return home (with a lot of care), or whether she would be happier, and be treated better, at the retirement home. Several months, several court hearings, and thousands of dollars later, my client was finally discharged to the wonderful retirement home, where she lived peacefully, and her health actually improved somewhat before she eventually died there.

The moral is simple. Name a proxy agent who will make the decisions you want. Talk to your proxy agent about what you think is important to your quality of life if you are frail. Write down your wishes and give them to your agent. Then go out and enjoy today.

For more information, visit Frank and Mary’s YouTube channel, youtube.com/elderlawfrankandmary. These programs also air on MVTV (Comcast 13), along with “Frank and Mary on Martha’s Vineyard,” where Sandie Corr-Dolby and I address common issues facing seniors and available resources. If you have any questions, please contact me at 508-860-1470 or abergeron@mirickoconnell.com.

Arthur P. Bergeron is an elder law attorney in the trusts and estates group at Mirick O’Connell.