I have this case that is making me think (well they all do, but this one maybe moreso).
I represent a grandson who took over caring for his grandmother’s affairs after his grandfather, her husband, died. He was operating under a financial power of attorney executed by his grandmother.
The family is black. I say that because I think it’s relevant. I think it’s also relevant that grandma is an immigrant. She came to the U.S. as a young adult and had no, or almost no, formal education. She is functionally illiterate.
This grandson hired me after a conservatorship petition had been filed in probate court alleging that he was financially exploiting his grandmother. The petition had been filed by an Adult Protective Services (APS) worker and that APS worker was represented by an Assistant Attorney General (the “AG”). Their petition sought the appointment of a public fiduciary. In addition to the probate proceeding, the AG was investigating possible criminal charges against the grandson.
The Government’s Story
The AG says that when grandpa died, grandson swooped in, sold grandma’s house for less than it was worth, collected all the insurance proceeds, and pissed away all the money on video games, fast food delivery services, credit card debt and gambling websites. Now grandma, they claim, was living in an apartment with her daughter (grandson’s mother) and grandma’s income was being used to pay the rent while the daughter freeloaded off of her.
The petition was filled with words I recognized, because I have used them many times in petitions I had filed. They said: the grandson was “commingling” his funds with his grandmother’s money. They said, he was “exploiting” her. They asserted that he and his mother had become ‘financially dependent’ on the grandmother.
The words stung. I guess, as much as any lawyer in Michigan, I have written and spoken about financial exploitation of vulnerable adults, and have promoted the use of these same words. Now here they were being used by the government to paint a kind and well-meaning young man as sinister, for simply doing things the way he thought he was supposed to.
But I guess that’s how words work, and how the government functions – especially these days, I think.
The truth is that the now-deceased grandfather was a postal worker, who did everything for his wife. When he knew he was dying, he turned to the grandson and explained what his financial situation was, what would be left, what benefits he could get through the post office and from his military service, and asked him to take on the awesome responsibility of protecting his beloved when he was gone.
He selected this grandson because of this grandson’s close relationship with both he and his wife, and because of the great confidence and trust he had in him. Grandfather explained that he, the grandson, would have unfettered discretion and control over the money, to use for his own expenses if needed, provided only that grandma was well-cared for.
After grandpa died, grandson sold their house in rundown area of Flint (and was lucky to find a buyer) and moved grandma to a suburban Lansing apartment complex. He arranged for his mother to move in with her as a full-time 24×7 caregiver.
He applied for and secured all the funds available, and paid off some of his own debts. He used the money freely for his grandmother’s expenses, and in some instances, small amounts for his own personal expenses. This, he understood, was what he had been authorized to do.
When we went to court, everyone agreed on two things: (1) That grandma was safe and being well-cared for, and (2) That this legal process had become her obsession and was causing her great stress. The fear that the government was going to take the power over her away from her grandson, thereby undermining the plan that her dead husband (in whom she placed all trust) was terrifying to her.
Culture and Aging
The research shows, and almost every experienced elder law attorney will tell you, our various ethnic populations handle aging differently. African Americans, for instance, are much more inclined than European families to keep their old people home and find ways to meet their care needs, mostly by family members sharing the responsibilities.
And I would suggest that there is more to this variation than just keeping loved ones home. There is, in many populations (not just black) a tradition of multigenerational community resource sharing. In fact, it is hard to think of any culture, other than America, where there isn’t a high some degree of shared financial resources among related people who live together.
Yet at least among the dominant American demographic, in the context of caring for an aging family member, the suggestion that someone has “commingled” their assets with the resources of that aging family member, or used the aging family member’s resources for their personal benefit, it perceived as per se inappropriate.
What I think this case is teaching me is that we have gone too far down that path. That we need to do more to factor in a person’s culture before branding them with words like “exploitation.”
And I’m not sure it is just about ethnicity. I think a lot of poor people or people of modest resources (aka, most people, but not the people who make the rules), share resources and responsibilities in this manner.
So, as this case continues, what I am hoping to do, is to bring this issue about cultural sensitivity into the conversation and into the decision that the court will make.
And, by writing this blog post, I guess I am asking my colleagues and readers in the community of elder law and the other aging professionals who have taken the time to read this, to consider these thoughts and to maybe allow them to trickle into your minds as you work to understand the always complicated, always interesting, always colorful, world of elder law and aging.
[Finally, don’t read this to say that I am suggesting that there are no situations in which people of every class and every ethnicity intentionally, without authority (legal or moral), and with malice, steal money from old people. They do. But that’s not my point today.]