Power of attorney, yet powerless

  • Article by: JAMES ELI SHIFFER , Star Tribune
  • Updated: April 20, 2011 - 3:31 PM

A man suffering from dementia in a St. Louis Park nursing home gave power of attorney to a stranger - and no one told his wife.

Last spring, Eileen Nelson moved her husband of 30 years into a nursing home. His longstanding brain injury and other health problems were making him so sick that she could no longer care for him.

She didn't realize until a few months later how much she was giving up.

Though Nelson had taken precautions by getting her husband's power of attorney, he was free to sign over the same power to someone else -- in this case, a professional guardian he met at Texas Terrace Care Center in St. Louis Park. Nelson lost control of her husband's affairs and had to go to court to win it back.

By then, the woman given power of attorney, Lisa Brown of Minnetonka, had spent Scott Nelson's savings, paying $25,000 in nursing home charges, buying him a $12,000 prepaid funeral and paying herself $1,012, records show.

Through this ordeal, Nelson learned something about Minnesota law -- a person, even one of diminished capacity, can grant signature powers to as many others as he or she wants. Although the Legislature is considering tightening restrictions on court-appointed guardians and conservators, those proposed reforms would not restrict professionals given powers of attorney.

That much more common arrangement for substitute decision-making is usually drawn up outside of court.

Brown did not respond to requests for comment. Her attorney, Charles Singer, said the expenses were justified because they were part of a conventional depletion of assets to qualify Scott Nelson for state-funded health insurance. Eileen Nelson had failed to do that, resulting in a large nursing home bill and delaying her husband's move to a group home, so the nursing home and Scott Nelson himself asked Brown to step in, Singer said.

"If you want to look at a story here, look at a story about a spouse that wasn't competent, and a professional was called in to clean up her mess," Singer said.

But Scott Nelson, diagnosed with a brain injury and dementia, was the incompetent one, in no condition to sign away his affairs to a stranger, his wife said. A Hennepin County probate referee agreed, declaring Scott Nelson in February to be an "incapacitated person" and making his wife the legal guardian.

While reasonable people can disagree about the best care for a nursing home resident, in one important sense "every darned thing [Brown] did was wrong" because she didn't respect the husband-wife relationship, said David Jacobs, Eileen Nelson's attorney. "It's a husband that got taken over here."

Two months after her court victory, Nelson is still untangling her husband's financial ties with Brown. But she's not one to give up.

"I'm a bull when I get started," she says with a laugh.

'Scott wanted out'

Eileen Nelson lives in Bloomington and works in a factory that makes pressure gauges. She married Scott on April Fool's Day 1978, and they raised two boys, now in their 30s. Scott Nelson's health problems also have been a constant in their marriage. First diagnosed with a brain injury four decades ago, he suffered a brain abscess in the 1990s. His mental condition took a distinct turn for the worse within the past decade.

"He hasn't been of sound mind for six and a half, seven years since I've started taking care of him," she said.

Nelson anticipated that she needed to assume a greater role in her husband's decision-making. So in the fall of 2007, she obtained power of attorney, a document that allows all the powers of her husband's signature. In May 2008, in declining health, Scott Nelson was hospitalized for three weeks in a psychiatric ward, housed in a different facility for two weeks and then moved into Texas Terrace Care Center in June 2008.

Eileen Nelson got behind on the nursing home bills while wrangling with her private insurance company. At the same time, she was working to get her husband on Medical Assistance, the federal-state program for the indigent. First, she had to liquidate his last asset, a $30,000 IRA. Under Minnesota law, she should have been able to keep some or all of the money.

But before she could do so -- and unbeknownst to Eileen Nelson -- her husband had handed over his finances to Lisa Brown. Brown is a professional guardian whose company is called "A Little Help for the Elderly and Disabled." She does not work for the Texas Terrace Care Center, nor does she have any other financial relationship with the facility, said the nursing home's senior administrator, Matt Bedard.

Changes OK 'at any time'

While people can have only one legal guardian, Minnesota law does not limit the number of people granted power of attorney. Bedard declined to talk about the circumstances of Scott Nelson's signing over his authority to someone he apparently met at the nursing home. But he said residents are routinely advised of the opportunities for "surrogate decision-making."

"The resident is free to change power of attorney really at any time, and for any reason," Bedard said.

Eileen Nelson said she learned of the change when she stopped getting her husband's mail, less than three months after he entered Texas Terrace. Starting in October, Brown used the IRA and Scott Nelson's pension and Social Security funds to pay his bills, including the nursing home ($25,740) and the funeral, down to the $214 spray of flowers, $895 "grave box" and $3,662 "sable" casket.

Jacobs, Eileen Nelson's attorney, said the $250-per-month fee that Brown paid herself was a reasonable one. Still, Eileen Nelson said she was never consulted about any of the spending.

"They didn't have time for me to turn around and, bam, it was out of my hands," she said.

She found out that her husband's funeral had been arranged only after she won her case in court.

Singer said he had no comment on why no one in the family was consulted about Scott Nelson's funeral, or how Brown came to serve as his power of attorney. But he did say that Brown was merely carrying out her client's wishes. Had Eileen Nelson moved faster on the medical assistance application, she might have kept some of the money, Singer said.

"Obviously Eileen Nelson wasn't getting the job done," Singer said. "Scott wanted out of the nursing home where he doesn't belong, and Lisa was trying to help him do that."

In October, Nelson filed a petition to become her husband's legal guardian, which would trump Brown's power of attorney. That effort culminated in a February trial in Hennepin County Probate Court before Referee Richard Wolfson. After hearing Scott Nelson testify that he wanted his wife in charge, Wolfson issued an order appointing Eileen Nelson as the guardian of her husband, finding that she was "the most suitable and best qualified" to do so.

A few days later, the couple celebrated their victory with a potluck at a friend's house in Burnsville. They dined on shrimp cakes, egg rolls, salad and helpings from a big pot of chili.

Nelson estimated the legal effort has cost her $7,000. Her husband is still living at Texas Terrace as she sorts out their affairs.

"It's an education that I didn't want," she said.

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