profWomanImagine you’re at your desk, calling your elderly client for approval of something you’d like to do with his portfolio.  The last time you spoke with him, he seemed a little “out of it” but you carried on and did your work.  Now, you’re on a call with him again and he’s just not getting anything you’re saying.  You repeat patiently.  Nothing.  You suggest talking to him at a later time.
When you call back two days later, your client has no recollection of the earlier conversation that had you concerned, and worse yet, he still can seem to grasp even the simplest explanation of why you’re calling.
What should you do?
Your client has presented some ominous signs of cognitive impairment, which include inability to track the conversation and memory loss. He has no memory of your call two days earlier.  Prompting him by reminding him of when it was and what you said didn’t help.
If you know there is a problem, there is one major reason why you absolutely must do something about it. That is: clients who are developing cognitive impairment are sitting ducks for financial abuse.  The abuse could come from a family member, which is an unfortunately common occurrence.  It could come from a credit card company who tricks your client into signing up for years of something she doesn’t want or need. It could come from an internet scammer who preys on people exactly like your client, cleverly and with great success.  As you may have heard, the latest study on financial elder abuse found that it costs our seniors $36.48 billion a year, rather than the previous estimate of $2.9 billion.
If you believe that confidentiality prevents you from sharing anything about your client with anyone else, take you cue from the Canon of Ethics for lawyers, who have to honor confidentiality as much as anyone can.  It says, paraphrasing, that a lawyer may but is not required to take protective action if a client is in danger.  In my mind, any ethical lawyer who believes reasonably that her client is in danger from potential  financial abuse is going to take protective action. When you see a client too confused to follow your conversation and too impaired to remember a call two days before, that client may be in danger right now. If protective action means calling a designated emergency contact, then you should do it.  If it means taking the matter to supervisory or compliance personnel in your organization, then do that as well. If you believe you have no other choice but to get rid of your client and no longer handle his finances or business affairs, then that is also a choice.  However, we at AgingInvestor.com think you do have options other than firing your impaired client.
When we look at the law, it builds in protections for those who lose the ability to  manage finances for themselves. One of these is a Durable Power of Attorney.  Every prudent person who gets estate planning done should have a DPOA as part of the estate planning package.  Take your cue from what the law allows any adult to do. That is, everyone should appoint a trusted person to take over when he or she is no longer able to manage finances independently.  You client should appoint someone you can call and most importantly give you permission to call or contact that appointed person when your client demonstrates behavior as we described above.  The person your client has designated on the DPOA to be her agent may also be the one she give you permission to contact if you believe she is vulnerable to abuse.
Every advisor, business professional and lawyer serving older clients should have permission to contact a third party in the event of emergency or imminent danger.  You can get it done with a straightforward document.
If you aren’t sure how to get a waiver of privacy done or whom your client wants to designate, it’s time to act now. Get these things accomplished with the help of experts who can guide you. If you have them in your organization or at your disposal, create your policy without any delay.  If you need help, we’re here to offer it at AgingInvestor.com. Contact us for advice, help with drafting your own special privacy waiver, or education about how to bring up the subject of cognitive impairment with your aging clients.
Until next time,
Carolyn Rosenblatt & Dr Mikol Davis
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