Losing It: You’re Gonna Die, But First, You’re Gonna Forget Your Car Keys

From the book, Death is No Excuse

I was born in 1954, and grew up in an Italian neighborhood. We lived, like most folks there, in a three-flat, a free-standing house with three stories and separate homes on each level.

My  grandparents lived on the top floor; my uncle and aunt, and, eventually, their kids, lived on the first; we lived in the middle. My grandparents did a lot of porch sitting, and their days consisted pretty much of asking anybody walking by two questions: "What are ‘ya doing?" and "Where are ‘ya going?" These were not innocent inquiries; the questions were asked with the utmost suspicion and the conviction that an honest answer would reveal criminal intent and illegal activity. It was a pretty oppressive environment, because if your answers were deemed unsatisfactory, there was a legitimate fear you might get brained by my grandmother, who carried a brick in her handbag.

The thing was: You couldn’t get away with anything. The family lived in that arrangement until my grandparents died.

Fast forward to my first job at a law firm. It was 1978. In addition to handling clients’ probate estates, I probated all the dead law partners and their spouses. My typical dead person in those days was a 55 to 68-year-old male smoker, with heart disease, lung disease, or both. Fifteen short years later, my typical dead person was a 63-year-old female with metastatic breast cancer.

By 1990, I was no longer probating three flats with extended families living inside. Grandma and grandpa were in extended care and nursing facilities, or, if they were lucky, they were living on their own.

What happened?

A number of things. Start with Ida May Fuller. You may justifiably ask, Who the heck is Ida May Fuller? Ms. Fuller, late of Ludlow, Vermont, was, on January 31, 1940, the very first recipient of a monthly retirement benefit check form the Social Security Administration—twenty-two dollars and fifty-four cents. I’d argue that $22.54 changed American culture more than television, birth control, marijuana or the assassination of JFK.

Social Security eventually gave elderly parents and grandparents a degree of independence. I grew up before this overspread the Country, climbing the back-porch stairs from the basement, where we had our only shower. I was naked except for a towel, with my hair dripping wet, and each and every day, my grandmother, who lived with us, asked me the same question: "Where you going?" (To rob a bank in the nude? Hit the racetrack wrapped in a towel?)

I bet that if you can’t say you lived forever with your grandparents, it’s in part because Social Security gave your old folks and grand-folks the ability to live on their own, instead of riding out their golden years in a sort of Old-World family co-op.

What else happened to bring about this change in the way we grow old? There’s public health: In 1965, when the U.S. had about 185 million people, over 42 percent of them, 80 million people, smoked cigarettes. When you stop to consider that a large number of the non-smokers were babies and kids, you realize that a huge proportion of the adult population smoked. By 2010, that percentage had dropped by over half, to 19%. During the same period, average American life expectancies jumped, over four years for males and an astonishing six years for females. Even more amazing—life expectancies grew ten years for males and fifteen for females, if those people had money (yes, they live longer).

These and other trends conspired to change an important aspect of the way we live, and equally important, the way we die. Zip back to my starting days as a probate lawyer in 1978: I worked in the largest county courthouse in the country, which serves millions of people. At that time, it had two probate courtrooms to deal with guardianship cases for disabled elderly folks, compared to seven courtrooms handling dead people’s estates. Today, that same courthouse has only four courtrooms for dead people’s estates, but six for guardianships for the elderly. And, inside that courthouse, I tried a case in 1981 that was all about an old guy with Alzheimer’s Disease, who’d been ripped off as he started to lose it. The trial went on for weeks, and when I got the five-thousand-page trial transcript, the court reporter had typed "Old-Timer’s Disease" each and every time somebody in the courtroom uttered the words, "Alzheimer’s Disease". She really thought that’s what people were saying: She’d never heard of Alzheimer’s, a phenomenon that wouldn’t happen today.

This upward trend in the number of people in guardianships has nothing to do with changes in the law: It’s actually harder today to open up a guardianship proceeding than it was in 1978, and widespread use of those dreaded Powers of Attorney has also cut into the guardianship population. No, this trending is entirely demographic. People are living longer, living alone more often, and, much as we’d like to pretend this isn’t happening, losing it more as they toddle off into old age.

While we’d all like to think that Gramps is fit and independent as he drives to the grocery store or as he administers his own medication, there’s a whopping amount of medical evidence that important mental functions decline in everybody past age seventy, with some important skills going faster than others. Three cognitive abilities that are critical to sorting out money and not letting people rip you off, start to decline well before many others. They are:

  • Executive Function
  • Free Recall Memory; and
  • Selective Attention

Executive Function is the ability to hatch a plan, take necessary steps and follow it through to completion, and then take stock of the results. For example: "I’m going to go see my probate lawyer today. I’ll collect all my financial records, fill out that financial statement she sent me, map out the location of her office, check for public parking in the area, then call her and make an appointment. Better set my alarm—it’ll take longer than my usual trip to the store, so I’ll need to get up early......" Then, after the visit, "Phew, got that done, but my lawyer did say I needed to send her a copy of my old will before she can draft that new one, so I need to go to the bank and get it out of my safe deposit box, so I can copy it......"

Executive Function is one of the first things that starts to go as you sunset, and it is the first thing to completely flame out when you start getting Alzheimer’s Disease—not short-term memory, as is widely believed.

Delayed Free Recall Memory means you’re losing the ability to immediately retrieve stored information from memory without a cue or a hint. "Oh, there’s what’s-his-name?" is probably the best example. While that may happen to most of us at some time, it happens more often when you’re over seventy. And, it happens with folks you should have no trouble identifying, like good friends, the kid who lives downstairs, the regular receptionist at the nursing home. This ability also starts to go quickly as you age.

Selective Attention is the ability to focus on specific and important information in your environment, while ignoring the unimportant stuff creeping into the scene. The best example is driving a car: When you’re young, it’s easy not to worry about the guy on the car radio, squawking on about which mini-mart has the best price for a six pack—you instinctively watch that woman pushing the baby carriage who’s about to cross the street just ahead, and reflexively cover that brake pedal with the center of your foot, not the toe. Past age 70, it’s not surprising to hear a back-seat driver, mumble, "Hey, look out for that baby carriage......" and you realize you were listening to that car radio. This ability, to automatically select out the important stuff from a sensory-overload world, also starts to slip by fast, even if you have no diagnoseable cognitive impairment associated with aging. It’s one reason why older people are more easily distracted.

Then, there’s age-related Impairments. Sad but true: More than half of all people over eighty actually have some form of cognitive impairment, such as cardio-vascular (Inadequate blood flow to the brain); ischemic (stroke); delirium (metabolic disorders like kidney impairment); or structural deterioration, like Alzheimer’s Disease (essentially, invasive plaques in the brain). And, sorry, hate-mail be damned: Almost nobody over age 90 is fully cognitively intact.

Meanwhile, more and more of those older folks with slowly creeping deficiencies and impairments are living alone, or with another elderly companion, or with a paid attendant or care-giver. The collision of these trends leads to an alarming, escalating incidence of elder abuse, and more often than not, that manifests as financial abuse.

One more trend is aggravating the problem of elderly financial abuse. When my parents were living in that three-flat, not all that long ago, there was a reasonable likelihood that all their kids would stay in town: One would be a cop; one would work for a local business; one might work for the city, driving a garbage truck; and the one who managed to go to City College, she might teach in a local grade school. Everybody went to the same church on Sunday, and afterward they all went to one of those four-hour "lunches" put on by my grandmother. Nobody in the family had a leg up on anybody else, in the smarmy, ingratiate yourself with Grandma sweepstakes, and nobody could effectively isolate Grandma from anybody else, since Grandma was constantly in everybody’s face ("It’s only been a few hours. You’re leaving? You’re not hungry?").

Today, adult kids from the snowy Midwest who can get out and still earn a living, do get out—they head to the coasts, where there are three important incentives for the move: They are, in order: 1. The weather’s better; 2. The weather’s better; and 3. The weather’s better. There’s also an element of what we used to call Chaa-Chaa-Chaa out on the coasts, that appears to be lacking in Pinkneyville, Iowa. In the Midwest, we call these relocated folks members of Bi-Coastal Families, since everybody’s now in New York or California, unless they’ve moved to Vegas or Texas. This phenomenon doesn’t even begin to address the other aspect of young-people flight: Corporate relocation victims, the folks that move every few months or years, whenever their boss at Integrated Electric Chair and Semi-Conductor™ decides they’re needed in the Chattanooga plant.

The thing is, isolation of Mom and Pop is only half the problem. There’s always somebody left behind—the younger brother who actually ended up driving that garbage truck for the city, or the perfectly content baby sister, who teaches at the local grade school. Two things always happen in these situations: First, that baby sister becomes the favored kid, who visits elderly mom, gets the Power of Attorney, and gets a bigger share under mom’s new will. And, if she’s a little unscrupulous, baby sis starts to get a lot of "gifts", from mom’s accounts, to help her maintain her own lifestyle. Second, all those jet-setting, bi-coastal siblings fly into outrage when they find out about baby sister’s favored treatment by elderly mom. This, baby sister will argue, even though they haven’t seen mom in five years.

If I took on every case of financial exploitation where I got a call about somebody’s elderly mom or dad, usually from the outraged out-of-towners who want baby sister’s treachery undone, I could do nothing else, non-stop, every day of the year. So, since your mom, dad or grandparent may well become a victim, here’s a bit of bad news for you Bi-Coasters and other out-of-towners: The last legitimate, baby-sister-isolated-and-ripped-off-elderly-dad case I took on, ended in protracted settlement discussions conducted by a retiring probate judge. In that case, there was no question that most of the hundreds of thousands collected by only-kid-in-town, had been illegally swiped after dad had lost his marbles. Offensive as that was, the Judge, himself a slightly younger member of Dad’s generation, openly expressed sympathy with stay-in-town daughter, and some intense lack of regard for those Bi-Coastal siblings. Sure, he felt obligated to acknowledge all the laws that make elder abuse both a crime and a civil wrong answerable in treble damages—but there was no disguising his bias in favor of stay-in-town baby sister.

And then, there’s the rising epidemic of paid-or-unpaid-care-giver financial abuse. Right behind the stay-in-town sibling cases, comes the overly-friendly nurse, step-daughter or companion, paid to take care of dad or mom, who miraculously ends up the main beneficiary under the new will (drafted by a lawyer selected by the caregiver), or who suddenly is on the deed to dad’s house, or has her family’s living expenses heavily subsidized by mom’s credit cards. This has become such a recurring problem that many states have added laws to the books that declare these gifts and transfers to paid caregivers fraudulent as a matter of law. Sorry, no chance for caregiver to go to court and argue, "Mrs. Smith really, really loved me and my kids more than her own Bi-Coastal, out-of-the-picture kids and grandkids."

Ironically, the same laws sometimes contain a presumed gift, or Custodial Claim, of hundreds of thousands in favor of a child or other relative of mom who becomes elderly mom’s caretaker. Do we see a pattern developing? Even the state legislature discriminates against out-of-towners and in favor of the stay-at-home sibling.

I can just hear you grumbling about how this impinges on your lifestyle, be it out-of-town jet setter, too busy to act as glorified caregiver for mom, or independent grandma, who likes not having your kids and grandkids up your nose all the time. That’s fine, but the forces that create elder abuse opportunities aren’t going to change. Multi-national corporate employers are not going to stop moving employees around like chess pieces, and kids with portable money and employment skills are not going to tough out the rest of their lives in snowy Bumpersticker, North Dakota, just to keep an eye out for elderly mom.

There is a solution to this problem. It’s in the hands of every person over the age of sixty, and it’s relatively inexpensive.

And, you’re going to be shocked to learn that this solution involves going to see your probate lawyer. Wait—even more shocking—it requires going to see your probate lawyer often.

If, like me, you started regularly seeing your doctor once a year when you passed age sixty, and dutifully pay for those exams that usually yield nothing more than, "Here, pee in this cup," and, "You should lose some weight and reduce your stress levels," you shouldn’t be offended when I tell you that you need to start doing the same thing with your probate lawyer. Stop by once a year, whether you think you need it or not. Yes, the several-hundred-dollar bill you’ll get every year is annoying, but it’s peanuts compared to the cost of untangling the financial consequences of elder abuse.

While your probate lawyer is no doctor, they’ve probably become adept at sensing declines in your capacity, particularly those that impact your ability to manage money and resist financial exploitation. Many probate lawyers will even screen you with armchair cognitive capacity evaluations, like the Mini Mental Status Exam, which can be conducted sitting in a chair in your lawyer’s office, without electrodes strapped to your head or needles poked in your arms. A qualified probate lawyer will be able to tell if you’re a potential victim in the making.

What can lawyers do? Most probate lawyers will have contacts with legitimate service providers who can both monitor your care and, if needed, provide you with new caregivers for oversight. If you consent, they can notify all your kids or other close family members. The more people know about your cognitive status, the less likely any one person, be it trusted son or loyal caregiver, can accomplish a rip-off. Most importantly, your lawyer can help you transfer your assets into a funded, revocable trust and hook you up with the trust department at your local bank, to manage that trust for you.

I know, I know—those bank trust departments charge fees and you’ve heard that their investment results never made anybody into the next Warren Buffett. Get over it; that’s not their job. First Local Community Bank, or, if your account is big enough, one of the major banks, act as your co-trustee to protect you and your money, not turn you into a late-in-life tech billionaire. They can pay your bills, get your taxes done, find a safe place to park your money, and most importantly, sense trouble early on, if they see suspicious activity in your charge account or unauthorized money movement. I’ve been working with bank folks like this for decades and never once seen a crook or even a stooge in the ranks. If they do something aggressively stupid and lose your money on bad investments, they usually step up and cover the losses. The fee is modest, compared to the service provided.

And, my favorite aspect of funding your revocable trust is the hidden security value of having a bank act as co-trustee with you. How’s that work? You can state in the trust document that any amendment or revocation (cancelling the trust or ripping large sums of money out of it) can only be done on the signature of both you and the Bank. No fraudster, be it your adult kid or your caregiver, realizes that the document they slipped in front of you to sign will be ineffective without the Bank’s signature, whether it’s a crooked trust amendment, a new will, a sneaky codicil to your old will, or even a bank account withdrawal statement. If the Bank is your co-trustee, you still have control (you can remove the bank as long as you’re competent) but changes and money withdrawals are only effective with the co-signature of a bank officer. And, it won’t help those scoundrels to buy this book, read all the way to page hundred and something, and proclaim: "Ah-hah! I’ll just get the Bank to sign off," because those bank officers are trained to sniff out this stuff, so they won’t sign.

Does it seem like I’m overreacting?


The Bi-Coastal Family Gets a Geography Lesson

Ted’s kids are all successful, go-getter types, so they’ve all left the snowy Midwest for exotic places with coastlines and super-high real estate taxes, all except daughter Gina. Ted’s retired, living in the rambling, four-bedroom house the kids grew up in, and is quietly managing the million-dollar nest egg he accumulated working forty years as a salesman at a local office products company. His spouse has been dead for a decade, and he spends his days working as a volunteer at the local library and hitting golf balls at the nearby driving range. Gina looks in on him, once a week.

Ted hasn’t seen his lawyer in years, figures, who needs that guy, and anyway, he’s got an old will that divides his estate evenly between his four kids, three of whom pop back into town for the holidays. They all seem to get along.

Ted ran into a guy in the check-out line at the grocery store a few months ago, somebody with a bow tie (they still have those?) and nice shoes, and the guy chatted him up on the way out the door. Turns out the guy, Pete, works for his own little accounting place, Pete’s Perfect Performance, a small shop with an office up above the massage parlor in the local strip-mall next to the grocery store.

Pete convinces Ted to let him manage some of the million-dollar nest egg, and soon Pete is reporting remarkable returns, small sums doubling almost monthly ("If we could only do this with a little more money, think of the leverage", Pete proclaims). Pretty soon, Ted gives Pete a lot more, then most of the nest egg, to manage. Something for nothing always seems like a good deal, Ted figures, since Pete doesn’t charge fees for achieving these impressive results ("I get paid off the leverage," says Pete).

Ted’s getting tired and forgetful, so he gives up golf. When he tells his son Rocky about this, Rocky asks Gina about Ted. Gina says, "Hmmm, he seems OK to me."

Rocky’s not convinced—Ted loved golf—so Rocky makes a trip back into town to visit Ted. There, he sees the statements from "Pete’s Perfect Performance, Inc.," and notices they look hand-typed.

"Dad, who is this guy?" Rocky asks.

"A genius," Ted announces.

Rocky goes to visit Pete and can’t get very good answers to any of his questions, so he goes to Ted’s old lawyer, to check out Pete and his company.

"Don’t know him, and I can’t find this "Perfect Performance" place registered with the Securities and Exchange Commission," lawyer says. "Then, you better check him out," Rocky decides.

When the lawyer confronts Pete, Pete produces some home-made stock certificates showing that most of Ted’s money has been invested in "Pete’s Perfect Performance, Inc.," of which Ted is now the largest single investor—in fact, he owns a bigger stake in the operation than Pete. When Rocky and the lawyer ask Ted about this, he admits he "signed a bunch of stuff," but can’t honestly say he had any idea he was investing directly in Pete’s business, effectively supporting Pete and his lifestyle.

While the SEC is busy raiding Pete’s operation, the financial records they turn over to Rocky and Ted show that all Ted’s money essentially accomplished was to pay Pete’s salary and office expenses. The SEC sets up a victim’s fund in which Ted becomes the single biggest claimant, and as they haul Pete off to jail, this brings about a serious reckoning meeting between Rocky, Ted and Ted’s lawyer.

"Well, Dad, at least you’ve got the equity in your house, to tide you over until they recover something from that dirt-bag Pete," remarks Rocky, who genuinely does not want to give Ted this last bit of bad news. "But, you’re gonna need to sell the place and move to an apartment—"

"Uhhh, about that," lawyer interrupts. "I pulled a title report on the house, and it looks like a year ago, Dad signed a deed giving the house to Gina."

"I did?" Dad asks, shaking his head. "She said that was some form for the State, something to reduce the taxes on the place."

"Well, it reduced your real estate taxes, because you don’t own it anymore," lawyer remarks.

The litigation to set aside the transfer of Ted’s house to daughter Gina ("I was always Dad’s favorite, and he wanted this....") goes on longer than the SEC proceedings against Pete and Perfect Performance. While Rocky gets the deed to Gina tossed out, most of Ted’s money is gone, and when the SEC wraps up the victim’s fund, Ted gets $195.00 and a certificate for future proceeds, once Pete is out of jail and works off his restitution plea bargain.

They all go to the lawyer to pick up the check. "The last time Ted came to see me," lawyer tells Rocky, "It was years ago. I tried to get him to put everything in trust and have Community Trust & Savings take it over, but he didn’t like their fee schedule."

Ted, who’s staring off into space and overhears this, responds, "You bet I didn’t like their fees—it was a real rip off."

"Dad—" Rocky starts in, but Ted interrupts.

"That Pete didn’t charge any fees...."


From the Book

Explore excerpts from select chapters.


You're Gonna Die

An examination of shocking statistics

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Nobody Likes a Killer:

The arcane world of inheritance-fueled mayhem and murder



Losing It

You’re Gonna Die, But First, You’re Gonna Forget Your Car Keys

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