Free Speech and the Digital Age

Marble Daisy

You might be wondering why an estate and elder law attorney would be writing about this topic in a post.  Well, perhaps it’s my years in federal court reading about and listening to civil rights actions, but it is an ongoing interest of mine as well in that it is the evolution of our networked civil society.  Last week I presented a continuing legal education program to a Boulder County Bar Association group entitled “Lawyers on Facebook – Oh My!”  It was an update of a program I presented over a year ago at the Colorado Bar Association (my “5 minute mentor” video here), and although its title is narrowed for comedic effect, it’s really about lawyers using (and misusing) social media.

I  recently read with interest the Wall Street Journal’s post  about the recent decision by the U.S. Court of Appeals for the Fourth Circuit (Colorado is part of the U.S.C.A. for the Tenth Circuit) in Bland v. Roberts.  In that decision, the court held that a Facebook “like” was protected speech under the First Amendment.  As I recall from some previous research I did for a “Lawyers on Facebook Oh My” continuing legal education program I presented, the trial judge (from the Eastern District of Virginia) tossed out on summary judgment a deputy sheriff’s claim that a “like” on Facebook (here it was on the page of the candidate for sheriff who was running against the incumbent sheriff, for whom the deputy worked).  The trial judge entered summary against the deputy (Carter) on his claim, ruling that the “like” was not protected speech because it wasn’t sufficient to constitute speech, let alone protected speech under the First Amendment.  The Fourth Circuit decision changes this.

The deputy sheriffs who were the plaintiffs in this civil rights action under 42 U.S.C. §1983, alleged their former boss retaliated against them for their support of the sheriff employer’s electoral opponent.  The deputies were not reappointed to their positions after the sheriff was reelected. Bottom line for this decision though is that the sheriff defendant is entitled to qualified immunity.  Qualified immunity is an altered version of sovereign immunity, or the historical doctrine of “the king can do no wrong.”  It is a standard defense to civil rights claims asserted in federal courts against state and federal defendants.  The ACLU, Facebook and the National Association of Police Organizations each filed amicus – friends of the court – briefs.  At page 36 of their opinion, the Fourth Circuit examined the claim of the single sheriff’s deputy plaintiff (Carter) who asserted that her liking her boss’s opponent on Facebook was protected speech.   In its multi-page analysis of Facebook speech, the court cited to the amicus brief of Facebook, Inc.  The court determined that “once one understands the nature of what Carter did by liking [the sheriff’s opponent’s] Campaign Page, it becomes apparent that his conduct qualifies as speech.”  Bland v. Roberts, slip op. at 39, relying on two U.S. Supreme Court opinions and going on to determine that the Campaign Page was pure speech as well as symbolic expression.   The court held that Carter’s “liking” was, as a result, expressive conduct with a particularized message, not unlike placing a political sign in one’s front yard.  The court continued its thorough analysis of the nature of the speech and the applicable balancing test and held that Carter’s allegation is sufficient to withstand summary judgment and reversed this determination of the trial court and remanded the issue for trial.  Id at 44.  This is very interesting

The world of social media and internet communication and interaction is constantly evolving.  Apart from the legal issues that particularly interest me as an estate and elder law attorney – digital assets in the probate context – there are many aspects of our social and political discourse that are changing as a result of our interaction with social media.  Stay tuned for the next couple posts about digital assets in the estate and elder law context.

©Barbara Cashman 2013     www.DenverElderLaw.org

 

Estate Planning and other Fearsome Topics: part II

Mesa Verde NP

This post is a continuation of an earlier post about fear-based tactics that are sometimes used to “help motivate” people to plan their estate.  This type of fear based motivation does not appear to help people think clearly about their values and priorities, but rather the fear is designed to sell.  Check out this recent Denver Post article that has helpful information and also instructs people to “walk away from high-pressure tactics.”  One definition I found of “advertising” goes along these lines:

the nonpersonal communication of information usually paid for and usually persuasive in nature about products.  Another definition talks about “driving behavior” and this post will focus on those two aspects in the estate planning context.

In an earlier post I introduced the first two Myths of fear-based estate planning as follows:

   Myth #1: You Need to Avoid Probate (as in probating a will) at All Costs and

   Myth #2: Getting a Trust Will Protect Your Assets from Nursing Home Costs and Medicaid Recovery

Let’s take a look now at two more myths of fear-based estate planning.

   Myth #3: A Living Trust is the Answer to All Your “Problems”

This is where the pitch might be at its most shrill.  Once I got a call from someone who actually hung up on me when I told her that sometimes probate wasn’t a bad thing. . . . !  In my practice, I have seen the dark side of several trusts.  There are many trusts that are generic and not tailored to an individual’s situation in any meaningful way, and because they are so long and complicated, clients don’t have a decent understanding of how the trust works.  The trust may create a completely unworkable management scenario, like when the adult children appointed as trustees can’t get along.  Another important factor to consider in this regard is that the trust document doesn’t usually accomplish anything on its own.  It merely creates the trust.  Often this important detail is not adequately explained to the client or it is completely neglected.  It requires the re-titling of a person’s assets into the trust’s name.    I have opened probates in such situations, where a probate asset was not, much to the surprise of the trustee and an heir, titled in the trust’s name but rather remained in the decedent’s name.  Trusts must be established properly as well as maintained.  Some are rather high maintenance.  If someone is telling you about how much an “average” probate costs – be sure to draw a distinction between the costs of probate and the costs of a probate lawyer.  Many times the trusts that are being sold are much more expensive than the probate alternative!

   Myth #4: Selling a Solution to a Problem You May Not Have

One of the sales tactics used might be for protection against things that people didn’t even know they needed to worry about.  One of these I’m familiar with is to use a trust to protect certain assets in the event an intended beneficiary might someday divorce.  It is always a good idea to ask questions about these kinds of arrangements, which appear to be based on the potential client’s intended response of “well, of course I would want this!”  The basic premise I am getting at here is that the options presented should be based on your own unique situation, and not a one-size-fits-all package that is being sold to you.

Bottom line for this post – find legal assistance that  involves communication that is personal to you.  How else will you know whether your plan is actually designed to work for you?  A hallmark of the attorney-client relationship, enshrined in our Colorado Rules of Professional Conduct,  is the obligation of “informed consent.”  You are probably familiar with this in the medical treatment context  –  but you might not have known that lawyers in Colorado are obligated to meet informed consent requirements.  This is often a two-step process:

(1) the lawyer must relay the necessary information to the client; and

(2) the lawyer must get the client’s consent regarding the lawyer’s next course of action.

What kind of information is relayed, how much information, and when the information is communicated, will typically vary according to the sophistication and experience the client has in legal matters and in making important decisions.  When you meet with an estate planning attorney who is able to ask questions and also listen to your concerns and find out what your unique situation presents, you will be more confident that  you are in good hands and that you are, as a result of informed consent, the one in charge of the attorney-client relationship in that the choices are made by you among a range of alternative communicated by the attorney to you.

There are alternatives available for any plan, and the best way for people to know they have made the decision that is right for them is to choose among the available alternatives.   This is the nature of informed consent.  If the estate planning documents do not suit a person’s or a family’s unique situation, there may be little point of putting a plan into place.

If you have a computer with internet access or you know how to find your local library, you can get plenty of information about estate planning and probate in Colorado (including the 2013 Senior Law Handbook) from the Colorado Bar Association, at www.cobar.org

PS Happy Birthday, Weird Al (Yankovic)!

©Barbara Cashman 2013     www.DenverElderLaw.org

 

Dying With Grace, Dying With Dignity, part II

Beaver Lake, Marble, Colorado

This post is the second installment about dying, a personal one for me as it recounts my father’s death.  I began the first post with this quote from a PubMed.gov  article  I found about dying with dignity:

The definition of dignity in dying identifies not only an intrinsic, unconditional quality of human worth, but also the external qualities of physical comfort, autonomy, meaningfulness, usefulness, preparedness, and interpersonal connection. For many elderly individuals, death is a process, rather than a moment in time, resting on a need for balance between the technology of science and the transcendence of spirituality.

Here is a link to the first post which talks about the three psychospiritual stages of dying and I look at the final stage, transcendence, in this post.

Transcendence   Just a couple days after returning home, he started slipping away.  My dad went through most of the “classic” aspects of the nearing death phase of surrender and transcending.  I remember telling someone who was visiting him why he was either swaying back and forth, like a kid on a rope swing, or why he put his legs in the air and held his arms out in front, as if he were riding a bicycle.  I explained that he was travelling, back and forth if you will, and that this movement was part of the letting go of surrender, moving in the direction of the end.  I remember a conversation I had with Diane, a family friend, who related a late friend’s similar movements towards the end of his life – but he was driving his car to that destination.

Dad passed away less than a week after returning home.  As his time grew nearer that Monday evening, my brother asked me if it was time for the scheduled syringe of oral medication.  I checked the progress of his breathing, which seemed so shallow at that point as to be just a couple inches into his throat.  I knew that the time was near.  My other brother came into the room then and we all grew quieter.  I left the room to find my mom and got a seat for her in the corner of the bedroom.  I was near the foot of dad’s hospital bed and my brothers were on either side of dad’s head when they heard my mother mutter something – almost under her breath.  My brother asked “what did you say Mom?”  I responded without hesitating:  “she said, she forgives you for dying.”  At that point, dad took his last breath.  I’m sure that it was what he was waiting to hear, after all that time.

So what is letting go? Kierkegaard observed that faith is the end of hope.  Faith is what you come to after hope is . . . . abandoned (yes in Dante’s Inferno terms).

When we can let go into another’s dying process, it is possible that we can make it easier for them, giving them “permission” to leave.  The dying person’s letting go, Singh observes at 203, is “not a choice.  None of these transformations of the dying process has been a choice.  Human consciousness unfolds itself as it will unfold itself.”

There is no denial in the heart, only in the mind – the mind is the seat of the egoic control center.  The heart maintains no such illusions!   At the time of surrender, the person’s consciousness unites, or reunites with the ground of being.   I like Megory Anderson’s description here, that “in the sacred act of dying, time is better understood as kairos, God’s time, than as chronos, our own chronological view of time.”  The late poet e.e. cummings was perhaps describing kairos here:

Whenever you think or you believe or you know, you’re a lot of other people; but the moment you feel, you’re nobody-but-yourself.

In her book “Sacred Dying,” Megory Anderson describes different ways to honor the end of life with honor and dignity, and to facilitate a sense of reconciliation and peace.  I recently spoke with someone who works for a local hospice.  This was in the context of a discussion of the importance of an advance directive for a family member, but I asked him about conflict at the end of life – and he assured me that it is unfortunately a frequent accompaniment to hospice care.  How could we honor a person’s dying by owning our own ambivalence and not denying our own or another’s mortality?  For most of us, I think we have a distance to travel here.

I will return briefly to some observations from “The Grace in Dying” that I have written in a manner that may help us, those accompanying a dying person in their journey, to face the process with our fullest being:

  • May I learn to know the difference between the time of sickness and the time of dying;
  • May I learn to listen with the ear of my heart in its true compassion when a loved one is facing death;
  • May I have the strength and discernment to communicate that it is okay to let a loved one go;
  • May I be of assistance in helping a dying person face death and not retract in fear or distraction; and
  • May I have the inclination to not just do something, but to stand there – to simply be when the time comes.

Perhaps if we can reclaim our sense of participation in mortality, in our living and in our dying, this sense of being “out of control” and at odds with a situation can be mitigated.  I’ll quote from my favorite ancient Greek philosopher, Heraclitus:

Out of life comes death, and out of death, life.

Out of the young, the old, and out of the old, the young.

Out of waking, sleep, and out of sleep, waking,

the stream of creation and dissolution never stop.

I will close with a few things to consider if you are visiting someone who is dying.  In the final days of my father’s life many family members and friends came to pay their respects.  Some were at a loss of what to do, just being with a dying person and in such close proximity to death is very difficult for many of us.  I decided to have a copy of John O’Donohue’s book “To Bless the Space Between Us” on hand and encouraged a couple people to pick it up and read one or more of its beautiful blessings aloud if they were so moved.

©Barbara Cashman 2013     www.DenverElderLaw.org

Dying With Grace, Dying With Dignity, part I

September in Marble

This post, along with one for next week,  is about dying – the process of dying to be precise.  I liked this quote from a PubMed.gov  article  I found about dying with dignity:

The definition of dignity in dying identifies not only an intrinsic, unconditional quality of human worth, but also the external qualities of physical comfort, autonomy, meaningfulness, usefulness, preparedness, and interpersonal connection. For many elderly individuals, death is a process, rather than a moment in time, resting on a need for balance between the technology of science and the transcendence of spirituality.

I have been working my way up to writing this post since losing both of my parents in the space of thirteen months – March 2010 for my dad and April 2011 for my mom.  Both were hospice patients at the time of their deaths.

As I quoted the Blackfeet saying in a previous post: Life is not separate from death.  It only looks that way.

What do we really know about death?  It has always been with us, but in our modern culture we are often estranged from it, treating it as some intruder.  I recently checked out Kathleen Dowling Singh’s book “The Grace in Dying: How We Are Transformed Spiritually As We Die.”  I found especially interesting her chapter on the Psychospiritual Stages of Dying.  She describes three basic phases of the final journey: chaos, surrender and transcendence.  For many of us who don’t have any real experience – personal or professional – with dying or death, I think this can seem like a bit of a stretch to describe a process that is as unique as our lives but that looks to be a fairly universal phenomenon – at least among those who go through a process of dying, as opposed to a sudden or unexpected death.

There is a wide variety of how we face death in our individual lives.  Much of it is informed by our culture, which is why I write about grief and death and dying in these posts.  There is much death denial in our country and I think this robs us of important opportunities to honor someone at the end of a life.  This isn’t just an American phenomenon, this estrangement from death.  Here is a link to a German website on the psycho-spiritual aspects of dying.    Denial isn’t always the case of course – I think of an extended family member who planned the menu for the catered meal after her funeral.  But then there was another who refused to speak about her terminal illness, treating that part of her life as some aberration perhaps, disowning it even.

So back to the stages of dying, there is much we can learn about this and it can inform the conduct of our lives in such meaningful ways.  In hindsight, I can see the onslaught of the first stage as my father grappled with the ravages of illness and age.  It comes with a realization that we are perhaps not (as we may have believed all of our lives)  the identity we have come to think of as ourselves, that our separate and personal sense of self is perhaps not all that we are after all.  This is the beginning of the transformative journey to the end of this life.

Chaos.   I remember a dream that my father described to me some months before he died.  He was residing in a nursing home while getting physical therapy every day and trying to regain the strength to return home.  I was pretty sensitive to his difficult situation and I wanted to be able to understand what was going on without asking too many questions.  I certainly didn’t want to ask him any questions he wasn’t ready to answer or consider.  He described the dream to me as follows.  He was on a moving train, travelling in a boxcar for some reason (my dad had worked for the railroad as a switchman during the summer and winter breaks in college).  In this boxcar were some unsavory characters, and for reasons unknown to him they roughed him up pretty badly.  I listened to his description, not really having any idea at that time what it might have meant.  He stayed at this facility for a couple months until he was able to return home, after some modifications were made to the house for his challenges with mobility.

On a couple of my visits to him at the nursing home he expressed concern over leaving my mother as his survivor.  He was concerned about how she would get along, whether there would be enough money.  I tried to reassure him.  These were cherished conversations we had.

After he returned home, his complications increased and then he was placed in hospice care.  His terminal pain needed to be managed better at that point, so he stayed for several days in a hospice care facility.

Surrender.  I learned from the chaplain at the hospice facility that his bags were packed and he was ready for the final journey.  After his terminal pain was under better control, he returned home.  This was a very difficult time for my mother.

to be continued. . . . .

©Barbara Cashman 2013     www.DenverElderLaw.org

 

Estate Planning and other Fearsome Topics: part I

des Beaux Arbres en Marbre

You might be wondering about the topic of this post, I’ve written about estate planning in the therapeutic jurisprudence context before, so what is this one about?  It is about  . . .  the dark side, or fear-based estate planning.   Is someone or something – perhaps working together and typically referred to as “they“ – out to get you?  Perhaps to rob your heirs of the rightful proceeds of your estate . . .  !   Who is this nefarious individual or entity?

If you read some of the newspaper ads, are you surprised to learn about all the bad things that could happen to you that you didn’t know about?  “Fear based” estate planning is taking the “nightly news” gloom and doom approach to a very individual and personal situation, creating a problem that may or may not exist, but is something that strikes fear, and offering a solution in a tidy little package with a typically rather large price tag.  Estate planning is too individualized, too personalized to an individual or family’s unique circumstances to leave to a fear-based reaction mode of decision making.  Perhaps this is where I transition to myth buster mode, so let’s proceed.

Myth #1: You Need to Avoid Probate (as in probating a will) at All Costs

Many people have been trained to fear probate, but if you asked them why, it would often be difficult to get a straight answer.  Lawyers, like doctors, must obtain informed consent for their legal services. Informed consent requires that a person’s consent to be competent, voluntary, and informed.   Clients need to be informed of alternatives so that they can make their own informed decisions about how they wish their attorney to proceed.  Fear-based estate planning often threatens this basic requirement.  There may indeed be good reasons for a person or a family to avoid probate, but they ought to be considered in a calm and rational manner.

Since 1973, Colorado has had a version of the Uniform Probate Code.  Probate in Colorado is simplified and the vast majority of it requires no judicial involvement.  Our financial lives in today’s world are seldom simple. Even those of us who are certain that we have updated and appropriate beneficiary designations on our accounts (like a beneficiary designation for an IRA, or a pay-on-death provision for a bank account) can drop the ball over the course of years.

When a person dies without a will, the law that applies to the disposition of the decedent’s estate is known as the law of intestacy.  It is part of our probate code.  Intestacy is designed to approximate what most people would provide in their will, but with some important details left out.  Intestacy can apply in a fairly straightforward manner where there is a “Leave it to Beaver” style family, which is no longer the “typical” scenario.  Modern complications include: married with no children; unmarried committed couple; remarried couple with stepchildren; divorced with minor or adult children; married with assets in a community property state; and a host of other life circumstances that seem to affect the majority of us.

Another option for Colorado probate is to collect an estate via affidavit.  This affidavit can be used where there is no real property involved and (for 2013) the assets do not exceed $63,000.

If there is real property or are probate assets which may include “surprise” probate assets (nonprobate assets which they lack an effective beneficiary designation and which exceed $63,000) then a probate will generally need to be opened.  If you can’t afford an attorney, many judicial districts have assistance available at “self-help” centers.    Many of my colleagues and I assist at these clinics.

At the present time, the statutory filing fee for opening a decedent’s estate is $164.00. Colorado, unlike some other states, does not require judicial supervision of decedent estates (except where there is a will contest or other contested matters which require juridical intervention) and there is no percentage valuation of an estate that goes to either a lawyer probating the estate or the state by virtue of some appraisal of the estate’s value.  Colorado has no estate tax.  The federal estate tax is currently around $5.25 million, so this is not a concern for most people.

Myth #2: Getting a Trust Will Protect Your Assets from Nursing Home Costs and Medicaid Recovery

Medicaid is a federal program for providing health care coverage to aid to indigent persons including children, pregnant women, people with disabilities and older persons.  It is a program for which one must be eligible.  For older persons, one must be sick enough and poor enough to qualify for benefits.   Medicaid is not Medicare.

In Colorado, Medicaid is administered through the Department of Health Care Policy and Financing (HCPF).  This agency really doesn’t care for trusts that some people have created and to which they have transferred title to their residence.  For example, if someone puts their house in the trust’s name and then needs to apply for Medicaid within the five year look back period, there will likely be a penalty, a period of ineligibility based on the amount of the gift (the transfer to the trust for less than fair consideration) and the average costs of care in a nursing home.  It may be necessary for the trust to convey back the title to the person applying for Medicaid so that they can become eligible.  This is not always possible.

A reverse mortgage is another method that some individuals use to tap into equity resources of their home, and these require that the home be titled in an individual’s name, and not in a trust.  Bottom line is that trusts don’t generally work for “keeping your assets out of the hands of nursing homes” where it involves a home that is the primary residence.

I will be back soon with another myth-busting installment on this topic. . . . stay tuned.

©Barbara Cashman 2013     www.DenverElderLaw.org