Watching The Watchman

 "Those who have wealth must watchful and wary:"
                                                 -Thomas Haynes Bayly 

The sad events surrounding 104 year old Brooke Astor should remind us all that while great personal wealth can buy much that makes life a happier place - fine houses, luxury goods, fine dining and comfortable travel, wealth also attracts those who would harm us.  While we are young and in possession of our mental and physical faculties, we can use wealth to buy protection from the world.  We can live, in buildings with doormen, take cabs rather than buses, avoid crime ridden streets and even use wealth to avoid purveyors of shoddy goods and services.  Think of Donald Trump in his personal helicopter flying triumphal over the streets of New York City.

But as Brook Astor's life reveals, great wealth presents a great temptation; certainly to strangers but even to family members.  While we may never know just what Astor's son, himself age 82, did, it is apparent that he crossed the ethical, if not the legal, line in regard to his mother's money.  Of course, Astor's story is hardly unique.  It is only newsworthy because of her fame and fortune.  Every day across America, adult children are financially exploiting their frail, demented parents.

Some adult children have their names on joint accounts.  Though likely done with the intention of helping the parent pay her bills, one day the child finds herself withdrawing a modest amount from the account for her own needs.  The money is there, the child needs the money and so temptation trumps morality.  After the first withdrawal, come more withdrawals; there are not many steps before the child has drained the account.

Other children will discover that a durable power of attorney is the perfect entry to the wealth of an aging parent who no longer is mentally capable of monitoring the actions of the child.  With the power and authority vested in the child as agent, the child finds it all too tempting to convert the assets of the parent to the child's use.  In almost no time, the child can transfer the parental assets to herself with the victim none the wiser.

Why do children exploit their parents?  The answer is probably the usual suspects.  Some are just "bad seeds," who were always bad and just took advantage of the opportunity that presented itself.  Others are drug or alcohol abusers whose addiction overpowered their morals.  Some are gamblers whose bets on the cards or the stock market left them with a desperate need for money.  More mundane financial reversals were the motive for others to steal; the dreary litany of failed restaurants, bankrupt real estate companies and dot com investment washouts.  And a few "needed" the money only in the comparative sense; they couldn't afford the lifestyle of the rich and famous that they so desperately desired.

Perhaps the other contributing factor is the children's belief that they some how "deserve" the parental assets.  Never underestimate the power of self-deception and rationalization.  The child that steals is usually the same child that expects an inheritance; stealing becomes merely the acceleration of that inheritance.  After all, if the money is coming to the child anyway and the child needs it now, why not speed up the process?  You can't steal what is yours.

Then there is the "Mom would want me to have the money" explanation.  A child in financial distress reasons that Mom would have given her the money had Mom had the mental capacity to do so.  By taking the money, the child is merely carrying out what Mom would have done.  Here the financial exploitation is transmuted into almost a duty; the substitute judgment model of doing what the ward would have wanted done.

Finally, there is the "I deserve it" excuse.  The child, who may or may not be doing a lot for the parent, convinces herself that she should be rewarded for her efforts.  She is the "good child" taking care of her parent while the other children enjoy their leisure and assuage their consciences by sending flowers on the holidays.  So if the child takes enough money to finance a new car, why not?  Surely she is entitled to a greater share of the parental wealth than the other siblings who are doing little or nothing to help their parent.

What the news stories do not explain is what could Mrs. Astor have done to protect herself. What can any older person with significant wealth do?  Surely naming a trusted adult child to handle one's affairs is the best defense against exploitation.  Put another way, if you cannot trust your child, who can you trust?

Actually, no one.  That's right. If you have wealth and are growing older, the best advice is to trust no one.  For trust is the door that opens to financial exploitation.

But of course you have to trust someone.  After all if, as you age, you lose mental acuity and physical vigor, you can't handle your affairs alone and must rely on the assistance of others.  If you suffer from macular degeneration and can't read, you will find it much more difficult to manage your investments.  And if your short-term memory is fading fast, you won't be able to remember what your advisor told you yesterday, much less what you estate planner droned on about last week.

As we go old, frail and even a bit demented, we necessarily must seek help, and that demands that we repose our trust in others.  But as the Astor case reminds us, even our children may disappoint or deceive us.  This is not particularly surprising.  Children may love their parents, but still steal from them.  Some children are just too weak to resist temptation.  Imagine that your widowed mother, age 90, has mild dementia.  She lives in an assisted living facility at a cost of $5,000 a month.  She owns a  house, liquid assets of $800,000, and annual income of $70,000 a year.  Meanwhile you, one of two children, are her agent under a durable power of attorney with the power to make gifts.  And that is just what you do - make a gift to yourself of $50,000.  It is so easy.  You just withdraw the money from her bank account and it is yours.  Now, of course, you the reader would not steal $50,000 from your mother.  But other children would and have.  Yet older persons need to appoint agents under durable powers of attorney, surrogate decision makers under health care directives and trustees of revocable and irrevocable trusts.  Naturally, those appointed should be trustworthy and capable of carrying out their responsibilities.  Unfortunately, not all of these agents and surrogates will perform their duties with complete honesty.  And others will be honest and loyal, but incompetent.  In either case, the result is the same - the elder person is financially victimized.

Fortunately, there are solutions.  An agent acting under a durable power of attorney should be required to periodically report his or her actions to a third party.  For example, the child who has the durable power of attorney for property because of living near to the parent could be required to periodically give an accounting of what he has done to the other children.  Nothing keeps one honest like having to explain one's actions.  If there are no other children, perhaps the agent could report to the lawyer who drafted the durable power of attorney.  Whomever the agent reports to, the point is to have someone who oversees the acts of the agent.  If the agent has control over property, the overseer should be examining how the agent is spending the assets and income.  The investments undertaken by the agent should also be closely examined to prevent losses either due to inept investments or from self-dealing, such as the agent purchasing assets from the principal for less that fair market value.

Although the agent has fiduciary duties to the principal, the durable power of attorney, which requires the reporting by the agent, should make sure that the person to whom the agent reports, the "overseer," is not a fiduciary and so does not assume the responsibilities and liabilities associated with being a fiduciary.  The overseer is just that, someone who provides oversight of the acts of the agent but does not purport to an insurer of that agent.  Suppose, for example, that Ann is the agent under her mother's durable power of attorney and is required to report to an overseer, her brother, Bart.  If Ann lies to Bart or conceals her actions, Bart is not liable to the mother for his failure to undercover Ann's perfidy.  If he were, he might not agree to serve as an overseer.

A surrogate health care decision maker should also be responsible to someone.  It just makes sense to have a check on someone who is potentially making life and death decisions.  One solution is to have the surrogate report to the person named as the alternate surrogate.  (And every health care surrogate decision document should name an alternate.)  The surrogate should have full authority to act, but merely keeping the successor surrogate informed serves to prevent the surrogate acting in a way inconsistent with the values and wishes of the principal.  Not only would this provide a check on the primary surrogate, it would ensure that the alternate would understand what is happening and so would be fully capable of acting as the surrogate should the need arise.

Trustees can be monitored by a trust protector, whose usual duties include the power to amend an irrevocable trust in light of changing trust and tax law.  But the protector can also be asked to protect the beneficiary of a revocable trust.  For example, many older persons place the bulk of their assets in trust, not so much as to avoid probate, but to provide property management in the event the individual, the trust settlor, loses mental capacity.  Of course, as long as the loss of capacity exists, the trust becomes irrevocable unless the settlor has empowered an agent acting under a durable power of attorney to revoke the trust.  But typically, a revocable trust becomes irrevocable and the alternate trustee takes over management of the trust.  Naturally, the settlor has confidence in the trustee, else why name her as trustee.  But as a President once said, trust but verify.

The solution is a trust protector.  Originally used with off-shore trusts, where the settlor had good reason to be wary of the trustee or wished to provide a means of adapting the trust to changing conditions, the trust protector is now often used for on-shore, irrevocable trusts both to provide the ability of someone to modify the trust if necessary and also to police the trustee.  The trust protector is the answer to agency costs, that is the costs attributable to the interests of the trustee differing from those of the settlor or put in a less academic tone, protecting the trust assets and beneficiaries from a disloyal or dishonest trustee.

If the settlor does not warm to the concept of a trust protector, the alternative is to appoint co-trustees.  With two or more trustees, one trustee is always watching the other.  But a settlor may prefer a single trustee who is able to act without the agreement of another trustee, which is more efficient and often more sensible.  For example, suppose the trustee decides that the trust should reduce its investment exposure in stocks and buy more bonds.  If the trust has co-trustees, both must concur and it may take considerable time and effort to reach agreement while a single trustee could act expeditiously.  In contrast, the use of a trust protector means that the protector would only intervene if the decision was clearly not a wise one and injurious to the interests of the settlor.  Other, less significant, decisions by the trustee would not merit review by the protector, thus saving the time and energy of the protector as well as any fees paid to the protector.

The authority of a trust protector should be limited to some extent, least the protector merely become an uber-trustee.  If the trustee has to report every act to the protector, then why have a trustee?  No, the protector should not be just another trustee, but someone who protects against excesses and abuses by the trustee.  The protector does not need to be concerned with every act and detail of trust administration, but should be alert to abusive, careless or even stupid acts by the trustee.  Otherwise the trustee acts pretty much as she pleases subject to the normal limitations on a trustee to act loyally and in the best interests of the settlor.

The old saying, "Who watches the watchman?" is as true as it ever was.  Very old, frail and demented elderly need a watchman, but they also need someone who is keeping an eye on the watchman.  An essential aspect of planning for agents and surrogates is to provide oversight lest the watchman become the exploiter.  As in so many aspects of life, a little planning can prevent a great deal of pain.