An octogenarian millionaire says he wants out of an Otago dementia unit - a refrain similiar to that expressed by many dementia unit residents. Is it a case of the enduring power of attorney system malfunctioning? Or not? Bruce Munro takes a look at the wider issue.
On the wall, above his head, the photographed faces of several generations of extended family have been pinned to a board. A couple of metres to his left is the closed bedroom door, beyond which a hallway snakes its way to the secure dementia rest-home's front door and out on to a small, high-fenced garden.
Two metres to his right, the bedroom's single window frames a pleasant outlook which it was hoped would appeal to the former Otago farmer.
But the 86-year-old does not like looking out the window.
''I don't. It's always on your mind to get out of here,'' he states.
''Here they treat me like a geriatric. There's ladies here who don't know where their room is.''
He may want to leave, but he cannot. He may have millions of dollars to his name, but he cannot decide how it is spent.
Early this year, he was diagnosed with dementia. And with that diagnosis his legal standing suddenly and fundamentally changed. In that instant, an enduring power of attorney which he had signed a few months earlier came in to force, which gave his lawyer (as his attorney in this case) the sole right to decide the future of his money, his property and his self.
We are a greying nation. With our increasing longevity, the incidence of dementia is growing too, at a rate of about 4% each year. By 2050, the number of New Zealanders with dementia is expected to have tripled to 150,000. It is set to make caring for elderly people with degenerating mental capacity one of our major challenges.
Central to that is the question of how to ensure the best interests of the person are understood and honoured; that the right decisions are made about their property, care and welfare when they lose the ability to decide for themselves.
To date, efforts have been focused on the enduring power of attorney (EPA), a legal document, signed and witnessed, which gives a person, or people, the right to make those decisions for another.
They come in two forms - a property EPA and a personal care and welfare EPA.
The donor, the person setting up one or more EPAs, chooses to whom they give each power of attorney, and the circumstances in which it will come into force.
It is not known how many active EPAs there are in New Zealand. Unlike Australia and the United Kingdom, this country has no register of EPA donors or their attorneys.
In the farmer's case, the EPA was activated in January, after family members concerned about the bachelor's health took him to hospital. A week later a geriatric consultant issued a certificate of mental incapacity, triggering the EPA which he had signed in August, 2013.
The EPAs for his property and his care and welfare are held by his lawyer of 17 years.
Within weeks, he was moved to a secure dementia rest-home.
During the past four months his three properties have been sold, including a farm bought by one of his nephews, for a combined value of about $2.5 million. Sitting on a bed far from his former home, the EPA donor has something to say about that.
''I'd like to take possession of my own landholdings again ... they've been sold,'' he says.
Asked previously whether he would like to stay in the dementia unit or leave, he replied,''If I have money to keep myself, I can leave here.''
Do you have money, he is asked?
''Yes. [The lawyers] have got millions,'' he says.
And then a little later: ''And I used to say to [the lawyer], I'm dismissing you as my attorney.''
At this point it must be recognised that while our rest-home resident gives the appearance of having a clear view on all of this, we are well aware medical experts have diagnosed dementia.
But there are questions, both about his case and the way EPAs operate, and they are as plentiful as they are important. The most glaring: why is a man with lots of money and limited years not having that money spent to keep him the way in which he says he wants to be kept? Or, are his wishes in fact being honoured? How could that be tested and, if necessary, any wrong undone? Is the evolving EPA legislation doing him, and potentially thousands of others, a gross injustice? Or is it an increasingly well-honed weapon in an armoury being brought to bear on behalf of some of our most vulnerable citizens?
A niece, one of several nieces and nephews, has come to visit her uncle. She is incensed.
At a January meeting with hospital staff and the lawyer, family members had offered to provide round-the-clock care for their uncle in his own nearly new home, she says. But that was flatly rejected by the lawyer who said he would be going into secure dementia care, she says.
A family friend who has known the farmer for 50 years, and is also visiting, asks the niece whether she has ever seen documentation proving who is the appointed attorney.
She has not, she says, despite asking.
She questions the legitimacy of the EPA. She believes her uncle was depressed and losing mental function when he signed the document last year. His significant hearing loss would also have made clear communication difficult, she says.
''What did you sign that day?'' she asks him.
''Oh well. Only on my death, she could handle the estate,'' he replies.
Asked what role their uncle's healthy financial situation might be playing in the family's concerns about his care, she says all of her family have worked hard and prospered and have no need of the money. But she admits she has some questions.
The doctor who made the mental capacity assessment thought he needed secure care, in part because he was agitated during his stay at hospital, she says.
But, she counters, imagine how unsettling it would be for any single man in his 80s who had lived all his life on his own to be suddenly surrounded by people wanting to interact and telling him what to do.
''This is not where he needs to be,'' she says of the secure unit.
Despite all his money ''he can't even buy himself an ice-cream'', the old friend says.
''There's no dignity in not being able to put your hand in your pocket and pull out ten dollars,'' she adds.
A number of their suspicions could perhaps be either confirmed or debunked by his lawyer.
The Otago Daily Times put several questions to the lawyer: what evidence was there that their client was competent to confer EPA, why was the offer from some in the family to care for him not accepted, and were the man's best interests being served by keeping him in secure dementia care?
The lawyer replied that her duty to keep client information confidential meant she was ''not able to offer any substantive response to the matters you have raised''.
Could the reality be that the forthright assertions of this man in secure care are not the opinions of his more competent former self? That his truer wishes are being respected? That he is better off in a secure facility where he gets professional care and social interaction?
One of his nephews thinks that could be right.
''I don't like seeing him in there myself,'' he says.
''But he wasn't looking after himself. You go in there and have a conversation with him and he talks away to you all right ... but I think he's getting into that next stage of dementia.''
Another nephew is more certain: ''I think because of his age he's better there [in dementia care],'' he says.
''None of us in the family can provide that level of service.''
He believes some family members are concerned the care will ''gobble up'' their uncle's money.
Most of the time, EPAs work well, Wellington-based lawyer Chris Kelly says.
But that does not mean there is no room for improvement, he adds.
Mr Kelly has 30 years' experience as a lawyer specialising in wills, trusts, estates and elder law.
Later this month, he will be in Dunedin speaking to the local law society branch on asset protection.
The first point he will make during his seminar is about EPAs.
Sometimes family members become suspicious of the attorney, he says.
''They are not the person doing it, they feel left out, they read the worst into everything the attorney does, and then they go making extravagant claims,'' Mr Kelly says.
''When someone in the family has got an axe to grind, it can get quite unpleasant.''
Unfortunately, such squabbles often end up in court.
''Before we had EPAs, before 1988, it was all impossibly expensive and bureaucratic.''
And while EPA Mark 1 was ''a bit like an unguided missile, it was a bit loose'', stricter requirements to address concerns about elder abuse ''may have over-tightened the regulations''.
He believes adding a less formal setting than court, where problems could be sorted out more quickly and cheaply, would help.
''Something like an ombudsman is probably what's needed,'' he says.
''It's education and policing that will make the difference, not more regulation.''
It is rare for a lawyer to hold an EPA, Mr Kelly says.
He has never heard of an attorney refusing to allow family members to see EPA documents.
''I can't see why they wouldn't be given it. Unless there was something particularly sensitive, or there was a direction from the client not to show `X' because, [for example], `I don't want my son John to see this because he's caused a lot of trouble and grief in the past and he's only after my money and so I don't want him to know anything'.
''I haven't seen that, ever. But it could happen.''
A donor can revoke an EPA simply by giving written notice, Mr Kelly says. But if a medical professional has deemed a donor to be mentally incapacitated, a second opinion on the donor's state of mind would need to be obtained. That would determine whether the donor was in a position to revoke the EPA.
If not, the family could choose to go to court to try to get the EPA overturned.
The threshold for mental competence to setup or revoke an EPA is not as high as that required to make a will, Mr Kelly says.
''Doctors base it on, 'can this person think through and understand the consequences of what they have decided to do?'.''
In a small number of situations, the attorney is not acting in the best interests of the donor, he says. In Mr Kelly's experience, it is often because the attorney does not properly understand their role.
''The premise of the Act is that the attorney only intervenes to the extent necessary,'' he says.
''The primary duty is to assist the person to do what they can.
''In practice people forget that very, very easily. They assume, I've got power of attorney, it's my job to make the decisions, I'll get on with it.
''It's not the system that is wrong, it is the lack of understanding.''
Setting up an EPA
THINGS TO CONSIDER
Who you want your attorney(s) to be, and what you do and don't want them to do on your behalf. In New Zealand, an attorney is not a lawyer. In this context, it is the person empowered to make decisions for another.
How your attorney(s) might be supported: could you name other people such as family, friends, an accountant or solicitor, to be consulted or provide your attorney with advice?
Do you have a list of the main things you own, any money owed to you, and any debts?
Who else could you give a copy of the EPA to: your doctor, your bank, family members?
When you want your property EPA to come into effect: a date, a period in time, or when you are determined ''mentally incapable''?
How your attorney(s) might be monitored, such as by appointing a second person to oversee your financial records or be informed of certain decisions. Remember, you can also appoint a second attorney for your property EPA, which may help with monitoring.
Whether you want to appoint other people to step in as attorneys if something happens to your first choice.
MAKING IT HAPPEN
When you have decided who you would like as your attorney and what you want them to do, you need to arrange a lawyer, a qualified legal executive or a representative of a trustee corporation (such as Public Trust) to be your witness. They will make sure you understand all your options, what the EPA document means, and that it meets all legal requirements.
Creating an EPA does cost money but there are ways to bring down the cost. Knowing what you want and filling out the forms before seeing your witness will mean the process takes less time and can therefore be cheaper.
There are standard forms you must fill out to set up an EPA. You can download them from the Ministry of Social Development website.
