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Elder Care prohibits us from keeping patient from driving...
BakedAlaska
Posted: Monday, May 2, 2022 5:53 PM
Joined: 5/2/2022
Posts: 7


Here goes: my half-sister, Ann (not her real name*), has been diagnosed with Alzheimer's. At her stage she cannot remember directions, appointments, addresses, and quite a lot else. (She is remembering familiar faces, so far.) She is also prone to hallucinations -- or perhaps she "remembers" things that did not happen -- such as a relative breaking into her house and threatening her with a gun, or that a "boyfriend" took her on a long drive when it was really a family member who drove her. It's hard to say what is really going on in her head.
I am not a primary caregiver, as I live 1500 miles from the action. However, Ann's daughters are doing the best they can to care for her. They have taken away her car keys in an attempt to keep her safe.

Here's the problem: Ann and her daughters live in Lane County, Oregon, and a caseworker with Lane County Elder Care has told the daughters that they CANNOT remove Ann's driving privileges, and they MUST give her back the keys and let her drive if she wishes. Further, they CANNOT move her to a memory care facility unless she agrees to the move.  And in Ann's condition, even if she agreed to move, in 10 minutes she would probably not remember that she had done so. And then would object loudly against the idea.

Note that one of the daughters, Sandy, has Power of Attorney and is her Health Care Representative, but in Oregon, neither of these designations allow Sandy to do anything at all unless Ann agrees to it. 

If Ann is declared incapacitated -- which in Oregon requires not only a doctor's affidavit but a judge's ruling in a court of law -- then it might be possible to make some life changes for her.  But we have been assured by both the caseworker and by an elder law advisor that it is virtually impossible in Lane County, Oregon, to get someone declared incapacitated as long as she can sit up and say "cat". 

Has anyone faced similar problems? (I bet!) Any advice, counsel, words of wisdom? Please?

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*I am changing names (except my own) because we have already had one scammer calling Ann several times a day claiming to be her boyfriend and fishing for bank account numbers, credit card info, etc. I might guess that such scammers sometimes scan BBBs in attempts to find cognitively impaired people to victimize. So I am giving the principal characters aliases!


jmlarue
Posted: Monday, May 2, 2022 6:45 PM
Joined: 12/12/2020
Posts: 211


I wouldn't hesitate to put the entire question in the hands of a professional elder law attorney. Sure, it costs money, but a specialist attorney can be depended upon to give real, lawful advice on the daughters having their mother declared incompetent for her protection and the protection of others. The absolute LAST thing they want to face is the State of Oregon becoming her conservator.
harshedbuzz
Posted: Tuesday, May 3, 2022 6:26 AM
Joined: 3/6/2017
Posts: 3539


BakedAlaska wrote:

Hi and welcome. 

Here's the problem: Ann and her daughters live in Lane County, Oregon, and a caseworker with Lane County Elder Care has told the daughters that they CANNOT remove Ann's driving privileges, and they MUST give her back the keys and let her drive if she wishes.

There may be other channels. Either they- or mom's diagnosing physician could report her as an unsafe driver.

Oregon Department of Transportation : Reporting an Unsafe Driver : Oregon Driver & Motor Vehicle Services : State of Oregon


Another option is to reach out to her insurance carrier and find out whether her policy would cover given a record of Alzheimer's Disease. It may not. If it doesn't, she's out of compliance around the legal requirement to carry required liability and personal injury protection. 

If it's her only car, sometimes taking it to "the shop" for a "recall" or "repair" where she doesn't have access is best. They could tell her the job is taking longer because of "supply chain issues". Rinse and repeat. Plus, out-of-sight often leads to out-of-mind. This tactic could extinguish the behavior in time. 

 Further, they CANNOT move her to a memory care facility unless she agrees to the move.  And in Ann's condition, even if she agreed to move, in 10 minutes she would probably not remember that she had done so. And then would object loudly against the idea.

Yes, this is how it works. 

Note that one of the daughters, Sandy, has Power of Attorney and is her Health Care Representative, but in Oregon, neither of these designations allow Sandy to do anything at all unless Ann agrees to it. 

This probably has less to do with the State of Oregon and more to do with how her POA is written. My parents' POAs were/are durable. I could act for them as an agent as soon as the document was signed. My dad had dementia, my mom does not. But their POAs allowed me to act for them on the sale of their home, close out safe deposit boxes, etc so my mom could stay with dad 1200 miles away. This sounds like a springing POA which requires documentation of incapacitation to become active. In some states this requires a panel of physicians to sign off. 

If Ann is declared incapacitated -- which in Oregon requires not only a doctor's affidavit but a judge's ruling in a court of law -- then it might be possible to make some life changes for her.  But we have been assured by both the caseworker and by an elder law advisor that it is virtually impossible in Lane County, Oregon, to get someone declared incapacitated as long as she can sit up and say "cat". 

I wonder if Ann is "showtiming". This is when a PWD gets it together for a short period during which they can seem a whole lot more with-it than they actually are. Perhaps these people have a sense that Ann is less impaired than she is. My dad used to showtime for physicians which made it difficult to get medication to dial back the anxiety, aggression and hallucinations we saw at home. I made a short video tape of what we were seeing and emailed it to dad's doctor to give him a clearer picture of reality. 

 TBH, in being involved in the legal end of care for my aunt and my dad in several states. I'm hazy on why there is a "caseworker" involved; did the daughters reach out or did Ann call them in because she felt threatened by their actions? I'm also unsure what an "elder law advisor" is. 

With Auntie, her sister rescued her in the middle stages of dementia after finding her sitting in a cold, dark house that was about to be sold for unpaid taxes. She needed to pursue guardianship- first emergency and then permanent. The initial emergency came with limited access to Auntie's considerable assets until my Aunt (the guardian-to-be) was fully vetted which took some time. The court ordered an actual neurocognitive assessment and input from her long-term PCP and guardianship was granted. Once it was we moved her closer to my Aunt and started the process over in another state. This time it went more quickly as the new judge accepted the findings of the previous judge. In both cases, Auntie was assigned a guardian ad litem to protect her interests in court. This process was expensive, but once guardianship is assigned the guardian can pay themselves back. 

We looked into guardianship for dad. Dad was about as you describe your sister- very poor short term memory, hallucinations, crazy conflated stories that re-wrote family history or involved plots from mom's crime dramas. Our CELA felt dad would be deemed incapacitated and explained the process in our county as straightforward and respectful toward the PWD. A friend of mine had to obtain guardianship of his dad along with his brother. Dad was a widower living in a carriage house on the older son's property and was very paranoid in addition to the usual cognitive shift. Dad had been a scientist and still had a lot of cognitive reserve and presented more as "the absent minded professor". Dad even had enough on the ball to fight his kids on guardianship and hired his own lawyer. The judge ordered a neuropsych exam and dad did badly enough that guardianship was given to the sons. 

Has anyone faced similar problems? (I bet!) Any advice, counsel, words of wisdom? Please?

I would encourage the girls to see a CELA and ask their advice.

National Elder Law Foundation (nelf.org)

HB

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BakedAlaska
Posted: Wednesday, May 4, 2022 11:12 AM
Joined: 5/2/2022
Posts: 7


Thank to both jmlarue and harshedbuzz for excellent advice. 

jmlarue, I had not imagined the possibility of the State of Oregon taking conservatorship. I will pass that on to the family steering committee. Yikes.

harshedbuzz, it sounds like you have experienced more than your share of difficulties, with two family members diagnosed -- your dad and aunt. I will pass your entire post to the family, and thank you very much for all the info.

You asked about the "Elder Law Advisor" -- Lane County offers free legal advice to low-income elders, and Ann's other daughter, Jane, sought help there. Re-reading Jane's email, it was indeed an attorney she spoke with. But the advice was limited -- "I can't advise you, because you are not yet 60, and I can't advise your mother because she has Alzheimer's." About all that came out of the meeting was the observation that's it's hard to get someone declared incapacitated in Lane County.

You also asked how the caseworker got involved. Whooee. The scammer who was trying to dip into Ann's finances by posing as a boyfriend called the cops and claimed Ann was being held captive against her will. The police arrived and found nothing suspicious. But while they were at Ann's house the scammer called her. The investigating officer spoke to him, and could not get his name (of course), but told the guy that he could and would be prosecuted for filing a false complaint with the police. However, Lane County Protective Services became involved either through the police call log or because the scammer called them as well. 

Incidentally, we were later able to block the scammer's incoming calls. If he ever gave Ann his number then she has lost it, so that is stopped for now. (Late edit: Ann cannot work a cellphone, and we were able to place a device on her landline which blocks all incoming calls which are not on a whitelist.)

You are absolutely right that Ann is showtiming, and she's good at it. Your narratives about guardianship (for Auntie, and for your friend's father) are very helpful.

The upshot is, we need to hire an elder law attorney. Expensive, but necessary.

Thanks, all. I will post more as the situation develops.


Bob in LW
Posted: Wednesday, May 4, 2022 3:19 PM
Joined: 1/28/2022
Posts: 41


Loss of driving privileges is a big issue for many Alzheimer's patients.  My SO has been diagnosed with Alzheimer's and has short term memory loss causing her to sometimes become confused.  She had a minor accident and had to stop driving.  She is still angry about that and insists that she can drive as she always has.  Perhaps she can operate the car but doesn't know where or why she is going.  Here in California, knowingly allowing an Alzheimer's patient to drive could have serious legal consequences when there is an accident.  I am surprised that Oregon is so liberal regarding impaired persons.  As others have noted, consulting an elder law attorney is good advice.
BakedAlaska
Posted: Thursday, May 5, 2022 9:37 AM
Joined: 5/2/2022
Posts: 7


Thanks, Bob.

Oregon does have a statute requiring medical professionals to report impairments which affect driving to the Department of Motor Vehicles. I've not yet found information on what liability the family faces if a family member is impaired and causes an accident. 

I think that the Elder Care caseworker is focusing only on protecting Ann's rights and her autonomy. Daughter Sandy reported that the caseworker told her that even if Ann's license was suspended, Ann must still be allowed to drive with a suspended license if that's her choice. And if she causes an accident, "Well that could happen to anyone" (that quote is as reported by Sandy). 

It seems crazy to me. But I can also understand that caseworkers see unscrupulous or misguided family members bullying and controlling elderly relatives unnecessarily, so of course they stand up for elders' rights. 

It's a legal and ethical minefield, and unfortunately we seem to be stepping on more than one mine at a time!


Cathie98
Posted: Sunday, May 8, 2022 10:00 PM
Joined: 5/8/2022
Posts: 1


In Ohio where I live there is a driving rehabilitation program in occupational therapy at the Ohio State University. We had to have doctor send referral, but they do a neuro exam, vision and reaction times first. If they make it through that then they go for actual on the road driving test. My dad did not get in a car, we found that he identified none of the peripheral vision indicators and his braking time on a simulator was 48 seconds instead of the 0.6 seconds it should have taken. That was enough for me. We told him then and there that he could not drive anymore, even though it did take a week or so for all the paperwork to go through the dmv. 

He still said he was going to drive, I spoke with local police and then went to an auto parts store and bought the club steering wheel lock. He called an attorney who spent time looking it all up-before the paperwork had gone through, who told him there were no restrictions on his license. I left the lock on that steering wheel. 

Once the actual suspension of his license went through and the attorney understood what was going on, he told Dad he would have to have a doctor sign off that he was okay to drive, none of them will do that. He still thinks he will drive again, I just say okay, when you get your license I will take the lock off. 


Victoria2020
Posted: Monday, May 9, 2022 4:27 AM
Joined: 9/21/2017
Posts: 1233


BakedAlaska wrote:
 
 
.... I've not yet found information on what liability the family faces if a family member is impaired and causes an accident. 
 
______
Legal theories like dangerous entrustment could come into play. If an accident is bad enough everyone that can be brought into the lawsuit would be.Especially those with untriggered documents like DPOA that could have prevented it -- the jury would be asked to consider whether everything was really done....
____________________

I think that the Elder Care caseworker is focusing only on protecting Ann's rights and her autonomy. Daughter Sandy reported that the caseworker told her that even if Ann's license was suspended, Ann must still be allowed to drive with a suspended license if that's her choice. And if she causes an accident, "Well that could happen to anyone" (that quote is as reported by Sandy). 

It seems crazy to me. But I can also understand that caseworkers see unscrupulous or misguided family members bullying and controlling elderly relatives unnecessarily, so of course they stand up for elders' rights. 

_______

I'd ask your Elder Law Atty if putting the County Executive on written notice that the County case workers are possibly protecting the rights of the possibly but suspected PWD over the rights of every other person in the County .

Basically, you're all swimming in circles , either you let the situation get worse or to prevent a terrible accident, loss of assets you get in front of a Judge . Either get all in or get cover to get out.



BassetHoundAnn
Posted: Monday, May 9, 2022 6:09 AM
Joined: 8/24/2020
Posts: 250


To play devil's advocate, what exactly is Lane County Elder Care going to do if Ann's daughters refuse to give their mother back her car keys? Are they going to haul the daughters into court? Are they going to press criminal charges? Are they really going to do that? Will a DA go along with it and serve up a warrant for the daughters' arrest? Or are they just reading from their rules according to their dept's regulations? What they're saying is the equivalent of "If a drunk driver wants to drive with a suspended or revoked license he has that right." Well sure he does. But if a concerned family member should hide his keys and disable his car's battery there's no DA in the country who's going to file charges. In fact a DA would probably argue that it's a civil matter and the drunk driver can file suit against his family if he so wishes. 

I think most of us have been in the position of having to take measures to keep our loved ones with dementia off the road. Doctors and state DMVs have provided little help. So we hide keys, disable batteries, and even drive cars to unnamed locations claiming they are "in the shop."

With this disease you have to do what you need to in order to keep everyone safe, your loved one especially but also the public at large.   


harshedbuzz
Posted: Monday, May 9, 2022 6:50 AM
Joined: 3/6/2017
Posts: 3539


BakedAlaska wrote:

Oregon does have a statute requiring medical professionals to report impairments which affect driving to the Department of Motor Vehicles. I've not yet found information on what liability the family faces if a family member is impaired and causes an accident. 

I'm in PA. In my state, physicians are supposed to report anyone who is no longer safe to drive. While dad's neurologist did tell him he couldn't drive or manage his financial life, he did not report this to the state DOT. About a year later, I read an article in the NYT in which a physician from the same memory center in which he was quoted saying he only did this once or twice a year. At the end of the day, it is up to families to make this happen

I think that the Elder Care caseworker is focusing only on protecting Ann's rights and her autonomy. Daughter Sandy reported that the caseworker told her that even if Ann's license was suspended, Ann must still be allowed to drive with a suspended license if that's her choice. And if she causes an accident, "Well that could happen to anyone" (that quote is as reported by Sandy). 

I feel like 2 things are happening here. Firstly, you are getting what you are paying for. If you want legal advice you can use to protect your sister and yourselves, you need to hire an attorney to work for you. A CELA is best. Secondly, most Area Agencies for Aging are essentially charged with advocating for the elderly- protecting them from physical abuse, financial scammers, making sure they can access any local senior benefits in the form of things like tax abatements, rebates, low-cost medical care, transportation and meals-on-wheels. Often complaints against nursing homes and caregivers are first brought here. They aren't focused on dementia and assisting families as a rule. 

We were given the AAA number on dad's discharge primarily because dad's behaviors were a risk to my elderly mother. LOL, dad was given the AAA number at a care planning meeting in which he was included (which was nuts, IMO) because he was complaining about being "incarcerated". He came away from the exchange believing there was some sort of special police force charged with keeping old people in line. 

It seems crazy to me. But I can also understand that caseworkers see unscrupulous or misguided family members bullying and controlling elderly relatives unnecessarily, so of course they stand up for elders' rights. 

That is their mandate. 

It's a legal and ethical minefield, and unfortunately we seem to be stepping on more than one mine at a time!

One more story on driving. 

My mother, who does not have dementia, suffered damage to her optic nerve and lost most of the vision in one eye a few months after my dad died in 2018. Her regular ophthalmologist turfed us to the eye hospital ER where I asked the doctor on discharge if she would be OK to drive- he said it would be no problem. She decided she would only drive on roads which were familiar to her and during daylight hours. I see a lot of my mother and always made it a point to drive with her every 2-3 weeks just to make sure she was safe. Then she rear-ended a minivan coming up to a light totaling 3 cars. There were no injuries, but the lady right in front of her had her 5 year old autistic son in the car and he was not handling the situation well at all. (my own son is on spectrum and I felt so badly for the pair of them) She told me she didn't think her brakes worked properly but it's pretty clear she misjudged the distance.  Not 2 months later, she did the same thing. This time the woman insisted on being transported to the hospital. A few months later mother got notice that she was being sued. Because my mom has full-tort coverage on her policy State Farm took wonderful care of things on her end. But still, it was an unpleasant experience- my mom felt terrible that she might have injured someone and caused them chronic pain going forward. She had to give a deposition just before COVID shut down the courts, then her court date was rescheduled a few times which was awful because we just wanted this over which did not happen until September 2020. Had this been my dad when we stopped his driving, the degree of progression between the accident and deposition would have been such that the person in the accident no longer existed and things would not have gone well. He would have been dead by the time the woman settled just before the trial was slated to start. 

HB



LindaLee-Caregiver
Posted: Thursday, May 12, 2022 8:13 AM
Joined: 2/27/2021
Posts: 1


I just saw your post and want to say that my relative with Alz. had the issue of driving also. In my state, the MVA (Medical Determination and Safety Division) needs a copy of the doctor‘s report stating diagnosis of Dementia/Alzheimers and doctor’s statement of …“no driving,“ along with the MVA form where you report your safety concern and the reason. As POA if we know of the illness and safety concern to others with driving, and know that relative is still driving, if they injure someone in a car accident, I read that in my state, the POA could be held liable. Immediately the MVA sent a letter to my relative instructing to turn over driver’s license to MVA or police will go to their home to take their license. Safety to self and others is the issue with driving. This is a sensitive and difficult matter but needs to be addressed. Good Luck!
JJ401
Posted: Thursday, May 12, 2022 4:42 PM
Joined: 6/19/2018
Posts: 289


BassettHoundAnn said: To play devil's advocate, what exactly is Lane County Elder Care going to do if Ann's daughters refuse to give their mother back her car keys? Are they going to haul the daughters into court? Are they going to press criminal charges? Are they really going to do that? Will a DA go along with it and serve up a warrant for the daughters' arrest?  ….

I agree. What are they going to do? My mom didn’t have Alzheimer’s, but she had some physical ailments that made her driving unsafe. After talking to my brother I brought her car to my house and garaged it. I used a fiblet (before I knew what they were). My oldest asked what would happen if she called the police when it wasn’t returned. I replied that when they came to her elderly housing appointment to take the report, they would have to wait for her to slowly shuffle her walker to the door to let them in. Then they’d have to watch her shuffle the walker back to the couch. If they couldn’t see she was too impaired to drive, son could visit me in jail. I wasn’t bringing her the car.

Luckily, my mom did not have Alzheimer’s. She never admitted she shouldn’t drive, but she never asked for the car back. Neither my brother or I took her to the DMV to renew her license. She asked once. I refused.

Sometimes you just have to do what you know is the right thing to do. With your mom, I’d start with seeing if there is a way for family to report driving to the DMV.


 
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