Medical Competency vs Legal Competency – where they overlap and how the differ

In this episode, John Ross, Lisa Shoalmire and special guest Alex Kent discuss the issue of competency in the medical and legal arenas.

Episode Transcript
Lisa
Welcome everyone to Aging Insight. This is Lisa Shoalmire live in the studio here with John Ross. And Aging Insight comes to you every Saturday at noon. This is a live program so you can always call us at 903-793-1071 with your questions, or comments, or stories, or good stuff. I've had a lot of folks tell me that they'll listen to a program and they'll think of an issue but the programs gone and it's over for the day. But you just call us up any Saturday.
John
That's right.
Lisa
So, Aging Insight, we bring information about growing older and doing it independently, and doing it without going bankrupt, and doing it without becoming a burden or dependent on others. We wanna share that information with you so you can be in the driver's seat.
John
That's right. And we try to bring this information to you because we really believe in the message.
John
That's right. So I wonder of all the folks that are listening out there, I wonder how many of them are familiar with the name Sumner Redstone.
Lisa
Well, I wasn't too familiar with that name until we started talking about this case.
John
Yeah well... You may not necessarily know who Sumner Redstone is but you know what he owns. Because he owns Viacom which also owns CBS, MTV, BET, a bunch of magazines, a bunch of websites...
Lisa
I would call Mr. Redstone, which by the way that is a cool name, Sumner Redstone. But I would say then that he is a media mogul.
John
Yeah, he's been doing this his entire life. He's now what? 92? 91? 92, something like that?
Lisa
92, I believe.
John
Has been in the media business for a long time and has amassed a sizable estate.
Lisa
I can imagine. And I bet that sizable estate, does that go with an M like million, or a B like billion?
John
Yeah, Mr. Redstone's worth about $5 billion dollars, putting him in a very elite class of billionaires. Yeah, he does all right. He's also been a bit of a...
Lisa
A bit of a Romeo?
John
A Romeo maybe. [chuckle]
Lisa
A Lothario.
John
Yeah. He's been married several times. And in addition to all of his marriages, he's also had a slew of girlfriends. Both during the marriages and in between.
Lisa
Well I haven't seen any photos or anything of Mr. Sumner Redstone, but when you say $5 billion, there's a certain attractiveness for certain people to that.
John
That's probably right. Well the reason we're talking about Sumner Redstone is because he's landed in the news here recently not because of the business entities and not because of some of these other things, but because of an elder law situation. And of course, that's what we do so perfect thing to talk about.
Lisa
Well sure. And the interesting thing as we get into this John, is it really doesn't matter that Redstone there has billions of dollars because the situation that he found himself in, we see right here in our little corner of the world all the time.
John
Yeah no, that's right. Whether you're a billionaire or a hundredaire.
Lisa
Hundredaire. I'm a $20-aire.
John
Yeah that's right. But the kinda things that we're gonna talk about, these do not have to deal with gigantic estates.
Lisa
But when you have someone like Sumner Redstone involved in these things, it certainly brings a certain amount of attention to the issues.
John
Yeah. Now in one of his previous marriages, Sumner had a couple of kids. One of which is the Chief Operating Officer of Viacom I believe. Heavily invested in his business entities. Apparently he and her in the past have had some back and forth rows over management of the company and things like that that you probably wouldn't know about unless you're reading the business section of the Wall Street Journal on a routine basis.
Lisa
Okay. So he has a daughter that is heavily involved at his businesses and they've had some conflicts from time to time.
John
He's 92. And when you're 92, you're gonna have health issues.
Lisa
Well that's typical yes.
John
He also, among his many former lovers, is Manuela Herzer. Herzer.
Lisa
Herzer.
John
Herzer. H-E-R-Z-E-R. A former girlfriend of his and...
Lisa
Who he must've had a lovely time with, because he put her in his estate plan, in his will to receive a little paltry sum of his estate in the amount of $100 million.
John
That sounds like a lot, until you realize that that is 2% of his net worth. Just 2%.
Lisa
He could give me a.2%...
Lisa
So this girlfriend and this former companion, he's provided very nicely for her with this $100 million, but people have a falling out.
John
Well, and he obviously had some confidence and some relationship with her at one point because he had her as his medical power of attorney. The person he wanted to make medical decisions for him, at least at some point.
Lisa
Right. So he had confidence in her to where if he could not make his medical decisions and he couldn't express his wishes or desires or give consent to various treatments or medical procedures that are needed, that Manuela would be the person to do that.
John
Yeah, but then he did have some health issues of late. Landed himself in the hospital and a few other things and during this time, he decided that maybe he didn't want her doing it, that he wanted his daughter and his longtime nurse that's helped him out for a long time... Maybe he should appoint them. And so he fires the ex-girlfriend from the power of attorney and reappoints daughter and nurse to handle those sort of things.
Lisa
Well, and I can see the logic in that because if you think about it, you have this former girlfriend and even if you're friends, even if you're still friends, this former girlfriend stands to inherit $100 million if you die. So...
John
Maybe not the right person.
Lisa
Yeah, maybe they've got some other motivations besides just your health and well-being.
John
Right. So ultimately what... But Manuela, not happy about this, thinks that with these other folks stepping in to make decisions and stuff like that, that that might interfere with her potential inheritance in some way, shape, or form. And so she runs down to the courthouse and files a petition to have Mr. Redstone declared incompetent.
Lisa
Yup, that's... Gosh, I see that half a dozen times a week right here in our area. But she wasn't happy with this decision that this 92 year old gentleman made, and so she runs to the courthouse. And you know John, when you first look at some papers and they say this person's 92 and they're changing all these documents suddenly and they're incompetent or they're being influenced and they're not theirselves. And sometimes even they're sick and so they're making crazy decisions that is not what they would've done or normally do.
John
Sure. Yeah and that's the stuff that gets put on paper and filed with the courthouse and then a lot of times, although at least from a legal standpoint, there is a presumption that you are competent.
Lisa
There is a presumption that you are competent from the day you turn 18, which I could laugh at that, to the day that you pass away and leave us.
John
Right, but there's also a presumption that you're innocent when you walk into a criminal courthouse, but most of the folks that walk into that criminal courthouse walk out in chains even though they're presumed to be innocent. And so the problem is is that even though you have this presumption, you're still involved in a court proceeding.
Lisa
Right, and court proceedings... So there's someone else's opinion that's going to... The presumption is being questioned here. Was Mr. Redstone competent and capable of making the changes to his medical power of attorney? And now it's not just a family squabble, now there's a judge and perhaps even a jury can be asked to determine that question.
John
That's right. That's what happened in this case, this all went to court and there was depositions taken and that's where the attorneys get an opportunity to ask questions of the parties and...
Lisa
Right, and that happens outside the courtroom so that's usually... Most time depositions, they're going to be in a conference room or something like that, in somebody's office, but the lawyers are there. It's a little less formal, but the testimony being taken is used in court because you're sworn under oath and a court reporter is there taking it all down. But the attorneys who are representing Manuela here, ask lots and lots of questions designed to show that Mr. Redstone was incompetent, trying to trip him up and trying to make him appear as if he was confused and didn't know what he was doing. And those depositions really showed the opposite.
John
Yeah, in fact, once this all landed in the hands of the judge and he got an opportunity to take a look at these things the judge looked at it and said, "Okay, yeah, Mr. Redstone is slow... "
Lisa
Yes. He is elderly and sometimes they're a little bit slower, a little harder of hearing.
John
Right, but, clearly based on the depositions, the questions and answers that he was put through, it was very clear to the judge that he was competent and the case was tossed out.
Lisa
Case was immediately dismissed. Now, John, I'm sure the issue, whenever there's a court situation involved, the stress, and the money, and the time dealing with it is forever lost.
John
Absolutely.
Lisa
Even if it's dismissed and you win... I don't know. You really don't win.
John
No. In this case he's probably got plenty of money to afford the lawyers, who, knowing he had $5 billion probably charged him a pretty penny for their services. He's not going to get that back. Just like folks that we see, they go through these things. So, within all of this, I guess the deal is if this sort of thing can happen to a billionaire out there, I can promise you it can happen to anybody else. So what can we learn from this situation? Well that's what we're going to talk about a little bit today. And we're also going to bring in somebody here toward the end of the program to talk a few of these things and couple other things.
Lisa
Very mysterious. [laughter]
John
Very mysterious, that's right. So, why don't everybody just stick around and we'll take a quick break, come back in just a second.
John
Welcome back to Aging Insight everybody, this is your host John Ross here with Lisa Shoalmire, and today we opened up by talking about the Sumner Redstone case that's happened here in the last couple of weeks, where a former girlfriend tried to have him declared incompetent because she didn't like the decisions he was making.
Lisa
Yeah, he changed some of his important documents and she did not like that. So, instead of taking it like a mature person, she ran to the courthouse.
John
Right. And this is something, although this story deals with a billionaire media mogul, this is something that we deal with in our practice on a daily basis. We have folks that come in or call, particularly. We get a lot of calls. And a lot of times we're able to screen some of those calls out, because people will call and they'll say, "My mom is doing this," "My dad is doing this... And I'm not happy about it." The response is, "Well, so what? Is this a competency issue, or is this a you-don't-like-it issue?"
Lisa
Right, and very frequently it's a you-don't-like-it issue. You don't like the judgement they're using, or maybe they're favoring another sibling or something more than the other...
John
A lot of times when I point this out to the person they'll give me the, "Well, he's 85 years old!"
Lisa
As if just the age in and of itself is the evidence that's needed that this person's making crazy decisions.
John
The first thing to understand when you're talking about, in learning from this Sumner Redstone situation is just because you're of advanced age, that doesn't make you senile.
Lisa
It doesn't make you incapable of handling your business, it doesn't make you legally a person of diminished capacity. In this case, John, the old adage "that age is just a number" is perfectly true.
John
Yeah, and in fact there's even some statutory basis for this, there's some provisions in the code that age is not a factor in a determination of competency. It's a medical issue that ultimately is proved by the court. But it doesn't have anything to do with your age.
Lisa
And certainly, obviously, as we age we may have more medical issues, may more have health issues. Certainly you typically see things like dementias and Alzheimer's in older people. So, again, the age by itself is not the end of the discussion.
John
Right, but, the problem is if you get into this spot. If somebody is questioning your competency. While, again in a court they have the burden to prove that you're incompetent. But, unfortunately there is this bias against the older adult. If you're 85, if you're 90, if you're in Sumner Redstone's case, if you're 92, and you're in a court, you are not in a courtroom surrounded by your peers.
Lisa
No, everybody's younger than you are...
John
Sometimes by half, or more.
Lisa
And they may have their own biases or may not be familiar with some of the issues of aging. For instance, Mr. Redstone, the hard of hearing and a little bit slower in responding to questions and thinking about responses. A younger person who's not familiar with aging issues may think that this is indications of incompetency.
John
And I guess the point here is that the second thing to talk about in all of this is, you the senior, your job, is to able to prove your competency. We got a caller calling in, let's see if we can get them on the line... Caller, go ahead, you're on Aging Insight.
Caller-1
You were talking about age is not a factor. Let's just hope and pray that some legislators don't make it a factor where, once you get beyond a certain age someone else can take over decisions for you, no matter how competent you are. Because that... We have law makers that... They think that... They wanna bounce out as many laws and regulations as they can, they think that this is an indicator of success for laws.
Lisa
Well... And I will say this on that note, there are some enhancements in the Texas Penal Code for crimes that are committed against those, what is it John, 55 and older?
John
Yeah 55 or above.
Lisa
And so there's already some... They're trying to balance some of that protect the frail and the vulnerable but, one 75 year old is not like another 75 year old, so we have seen some of that, but there's no presumptions attached to the age, it's just...
John
Well. And considering the fact that we're gonna have roughly a three to one ratio of people over 55 to those under 55 in just the next five or 10 years, that's gonna be the biggest voting block we've ever seen.
Lisa
That's true.
John
I don't know that... I think we're probably be able to throw the bums out. [laughter]
Caller-1
Well maybe there won't be enough people "feeling the burn" so to speak, where they won't round up all the old people and put them in the old folks farm.
John
Let's hope. Alright, thanks for calling.
Lisa
Yeah. No. John and that certainly is an issue because I have seen some laws in discussions about should we make some presumptions about financial abuse and things like that, just because a person, the victim, is older, it's a balancing act.
Lisa
Yeah. So...
John
That can be a big issue. I have a case, in particular, related to this, that kinda lines up a lot with these same topics and it actually involved a Heritage nursing facility here in town. So, we're gonna come back after the break and we're gonna talk about that and talk about Heritage a little bit, and so you're just gonna have to stick around until after this news break and we'll get back and finish up our discussion of all these topics.
John
Welcome back to Aging Insight everybody this is your host John Ross. And we've been talking about the Sumner Redstone case, and how a person can attempt to declare somebody incompetent, even though they're not. And when we're talking about this being a $5 billion guy. Well what does that have to do with you? Well I can give you a very real local story, I had a lady and she had a little bit of money, but not a lot. I mean not what you would think of would be worth all the trouble that went into. But this lady had a little bit, she had a house and she had a little bit of assets. And she liked to be at home, she wanted to stay at home but she fell, in her home, and that caused her to have to go to the hospital.
John
While she was at the hospital, a couple of her family members went over to the house, trashed the place, took photographs of how the place was trashed, where they had thrown garbage around and all kinds of stuff. Then they went to the court, visited with the judge and said, "Judge, look at these pictures of our aunt and look at the filth that she's living in, we need you get us appointed as temporary guardian." And the judge looked at the photos and was like, "Well, geez, yeah. I think that would be in her best interest. Something's wrong here." Of course the judge has never met this woman, doesn't know anything but what he's being told, and in any case he signs an order appointing these two as temporary guardians. And they then have her discharged from the hospital, thinking that they can go lock her up in a nursing home somewhere and forget about her.
John
And then, in fact, they took away her phone, her ID, all of her personal assets. That way she wouldn't be able to contact anybody, but the problem was they made a critical error. They had this idea that they could go lock her up in a nursing home. And instead what they did is that they took her to Heritage, one of our facilities here in town. And Heritage is also a part of Reunion Plaza and Twin City Rehab and when we were talking about the star rating programs and how those are all messed up, I brought in Alex Kent, who is part of that organization. And so since I had this story about Heritage, I figured I'd bring her back. So welcome back to the show.
Guest
Thanks for having me again.
John
Yeah, absolutely. So the deal here was, this lady shows up at Heritage and she's being checked in by somebody who's got court papers, saying that it appears... A temporary guardianship does not declare you incompetent, but it's the judge saying, "It appears that this person is incompetent and until we have a little bit more time to investigate we're gonna go ahead and appoint a guardian." And so this lady shows up at y'all's facility being discharged from the hospital I get a call from you guys sayin', "John something weird's goin' on here, we have a lady, we've met with her, she's competent and," it was actually... The interesting thing was how incredulous your folks were. 'Cause they're calling me going, "John, how is it possible that somebody has a guardianship over this lady, she's competent?" But I guess that's part of what y'all are doing, is when somebody walks in there, y'all are checking these things out.
Guest
Absolutely. We're definitely advocating for the patient and their best interest at all times. We do want what's best for them, and we feel like it's our duty to make sure those situations get light shed on them, if there's something going on.
John
Yeah, a lot of times people have a tendency to think that these... That, "Oh well, if you go to the nursing home they're just gonna warehouse 'em, they're just after their money and their house and things like that." But y'all are a medical institution, you're a medical provider.
Guest
Absolutely, absolutely.
John
Nobody goes to the hospital thinking, "Oh, the hospital's gonna take my house." Hospitals don't take houses.
Guest
No, and neither do nursing facilities.
John
And neither do nursing homes, that's exactly right.
Guest
But that's probably the biggest push back I get is, "They're gonna take my house." And we are not out to do that.
John
Yeah, but what people don't realize is that you go to the hospital, Medicare pays for it. You go to the nursing home, well Medicare will pay for the first little while, maybe. But after that it's Medicaid. What a lot of people don't realize is that even if you're receiving Medicaid programs and you're not in the nursing home, if you go to the hospital, you're racking up a bill and things like that. Yeah, it's the state that's coming after assets. It's not the facilities.
John
But, I thought it was interesting that these folks, they thought they were getting one over on this lady. 'Cause really, within about 24 or 48 hours of them getting the temporary guardianship, they had moved her into y'all's facility, but that obviously was not their main goal. Because within that same timeframe, they had made a call to the Edward Jones agent, asking that all the assets be transferred to a different place.
Guest
Okay, interesting.
John
So, that's where that all came from, but really I would've... This is not somebody that... She had no way of calling me. It was actually y'all getting her... Like you said, you're kind of advocating for her. It's not like she didn't have a phone or something there.
Guest
Right, right.
John
I guess that's kind of the thing, and these folks they probably didn't realize... You know they're thinking, "Oh well we can get her in this nursing home and we'll get the state to pay for that, and that'll save all of her... And, we'll basically run off with all of her money." But she was in relatively good physical health.
Guest
Right. And I do wanna mention this while we're on this topic. The state has regulations for applying for Medicaid. And one of them is that the patient has to have a cognitive impairment of some sort. That could be history of stroke, it could be dementia, Alzheimer's of course, Parkinson's. 'Cause eventually their mind will be affected. But we have to have that in order to even submit the application.
John
Right. You've gotta have what they call a medical necessity, and in a lot of cases they want that... If you've got a cognitive dysfunction there in some way, shape, or form then you have a clear medical necessity for Medicaid purposes. There are some exceptions to that, but it requires a much harder level. And that's the problem with this lady, if they thought she was gonna get Medicaid in this facility, they were wrong. I mean, she was perfectly mentally competent, she could get around on her own. Biggest problem was she was deaf, and she could barely hear at all. And even when we had a court hearing shortly after that, and even the judge was questioning her competency. But even though we had y'all's medical director saying she was competent, her inability to communicate well because she couldn't hear, she didn't understand questions, kind of goes back to that presumption. But that's the inexperience of dealing with old people.
Guest
Right. People don't realize...
John
Y'all deal with old folks. Nobody walking in there... There's no presumptions and all that.
Guest
No. Right, we're looking for all of those things. And then we actually in the facility, you will actually take a test, per se, it's scoring you on your cognitive level and anyone applying for Medicaid has to take that test.
John
Yes, this would be the BIMS.
Guest
The BIMS, yes.
John
Yes, which stands for...
John
Isn't it... This is the test that's the bed, blue, key, couch, shoe, or whatever it is.
Guest
It is a memory test.
John
It's a memory test. And the idea is you're given a series of words, then you talk to 'em for a little bit longer and then you ask them then to repeat these words, and you see. [chuckle] Yeah, I had one lady and her mother physically, really needed the long term care, but mentally she was sharp, and they had been denied Medicaid once because of this issue. And I was explaining the BIMS score, and I was like, "You know it might be better if she just didn't score quite so high. [chuckle] I'm sure she's proud of her memory but we gotta get the care needed here." Alright well listen, we're gonna take another break and then we're gonna come back and keep talking to Alex Kent here, so stick around we'll be right back.
John
Welcome back to Aging Insights, our last segment. So if you got any calls you better call them in, the phone numbers 903-793-1071. And we started out the program talking about the Sumner Redstone competency trial, and that kinda led into a story that I had related to a very similar situation. But I here on a local level, that involved Heritage Nursing Home over there on Elizabeth Street. So today I brought in Alex Kent so she could talk about some of these sort of things. The issue here with Sumner was he changed his medical power of attorney. He obviously decided that somebody else would be a good person to make medical decisions for him. And I guess the deal here is... I started talking about the importance of people, while your competent, be able to establish your own competency in all of that, but also realize, there is a really high likelihood you are going to become incompetent at some point. Which means your going to have to have somebody to make medical decisions for you. And in this case, I'd say Sumner picking an ex-girlfriend who was set to inherit $100 million on his death, maybe he chose poorly?
Guest
I agree with that, that's a little risky.
John
[chuckle] Yeah, but I would think that particularly in a long-term care setting, having surrogate decision makers, they're pretty important?
Guest
Very important. Often times when I go to see a patient for the first time, and they're in the hospital and they're teetering on that point, you know the next stroke, they might not be able to make those decisions and often times they don't have anybody in place. I try to bring that to the forefront in that meeting, that it might be important to start thinking about those things. Because also applying for Medicaid to transition a long-term care in the facility, we have to have a lot of financial documents and we can't get those a lot of times, because nobody had appointed a durable power of attorney.
John
Right, there's no financial power of attorney, there's no medical power of attorney. And particularly I would think within... Again, y'all are doing a lot of medical care and having a medical decision maker but also having that "Be somebody that likes you more than they like your money". [chuckle] Basically choosing...
Guest
Choose very wisely.
John
Choose very wisely. When we started the program, Lisa was telling of a situation that we had recently where we had a daughter who felt like she should be making decisions for her mom. But she just basically didn't like some of mom's life choices. And is saying, "I wanna get control of mom so I can take her down and move her into a nursing home close to me." Knowing full well, that's never something mom would have wanted.
Guest
Right. And that's why it's so important to make your wishes known. And legally, not just verbally.
John
Right, and especially when it comes to all of these medical stuff because there's a lot of types of care that you may or may not want.
Guest
I've been in this position for a year and a half now, we're seeing people come from the hospital a lot sicker. And there's a lot more, a lot younger. Whether it's freak accidents or strokes even at a young age, I've seen. So it's really important no matter your age, and I'm kinda preaching to myself, to have those things in place. But that being said, that's one thing that Heritage has really tried to do, is we've tried to up our acuity. Meaning that we can take care of these patients that are younger, that might be with us for longer periods of time that have trachs and brain injuries and require a higher level of care in general.
John
Right, and again, if you've got a brain injury in these sort of situations, somebody else is gonna have to be making these decisions. In fact I was talking to some clients yesterday afternoon, was my last clients of the day, and I was pointing out to them that we often have a tendency to think about nursing home care as an "old person thing."
Guest
Correct and...
John
And it's not.
Guest
It's not and it's changing. Especially even with the rehab side of things. We do offer physical therapy, occupational therapy at Heritage. We're seeing people in their 40s, in their 50s needing, having to come in for rehab. Especially with Medicare cracking down on the length of stay in the hospital. People are coming to us much younger, and much sicker than they were before.
John
Right, and part of this is you've got some Medicare and the way they pay these entities, both the hospital, the inpatient rehab, the outpatient rehab, the skilled nursing, the home health. All of these things right now are generally billed separately to Medicare, but Medicare's talking about doing some lump sum payments...
Guest
Yes the bundle system.
John
Yeah, and it'll be very important for people to understand what kind of care they're going to get in a facility like yours, because of where the dollars are coming from.
Guest
Absolutely and I talked about the average length of stay again. Not only is the hospital gonna be held accountable for their average length of stay, but so are we. So we're essentially having to take people that are a little sicker coming from the hospital a little quicker than what maybe they would have before, and make sure that they're stable enough to go home and stay in the home.
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