More About Colorado’s New Law on Mandatory Reporting of Elder Abuse

Maggie in Marble Snow

Maggie in Marble Snow

To resist the frigidity of old age, one must combine the body, the mind, and the heart.

And to keep these in parallel vigor one must exercise, study, and love.
Alan Bleasdale

I’ll take a look at two questions answered in the new law.  First – who is an “at risk adult” subject to this law, and second – who are the mandatory reporters? Here’s the link from my previous post about the new law.  Our system of anonymous reporting will come to an end as law enforcement agencies will be collecting information and making these reports.  Okay – very briefly, while we’re on the topic of the reports – these will contain the names and contact information of the at-risk elder and the reporter, the identity of any caretaker/caregiver, the name of the alleged perpetrator, along with the nature and the extent of the injuries.  Within twenty-four hours of receiving the report, law enforcement must notify the county Adult Protective Services (APS) or the District Attorney’s office where the abuse or neglect occurred.

To reiterate, the law defines an at-risk adult as “any person who is seventy years of age or older or any person who is eighteen years of age or older and is a person with a disability.”  Colo. Rev. Stat. §18-6.5.102(2).  Person with a disability is defined in  §18-6.5.102(11) as: any person who is impaired because of the loss of or permanent loss of use of a hand or foot or because of blindness or the permanent impairment of vision of both eyes to such a degree as to constitute virtual blindness; is unable to walk, see, hear, or speak; is unable to breathe without mechanical assistance; is developmentally disabled as defined in section 27-65-102(11),C.R.S.; is a person with a mental illness as the term is defined in section 27-65-102(14), C.R.S.; is mentally impaired as the term is defined in section 24-34-301(2.5)(b)(III), C.R.S.; is blind as that term is defined in section 26-2-103(3), C.R.S.; or is receiving care and treatment for a developmental disability under article 10.5 of title 27, C.R.S.

Here’s a quick list of the mandatory reporters according to Colo. Rev. Stat. § 18-6.5-108(1)(a)-(1)(b) who must report such suspected abuse on and after July 1, 2014:

  • Health care providers and other medical personnel including: Physicians, surgeons, physicians’ assistants, osteopaths, physicians in training, podiatrists, occupational therapists, and physical therapists; medical examiners and coroners; registered nurses, licensed practical nurses, and nurse practitioners; Emergency medical service providers; chiropractors; dentists; pharmacists
  • Health care facility and mental health: hospital and long-term care facility personnel engaged in the admission, care, or treatment of patients; psychologists and other mental health professionals; social work practitioners;
  • Clergy members (with exceptions);
  • Law enforcement officials and personnel;
  • Court-appointed guardians and conservators;
  • Fire protection personnel;
  • Community-centered board staff (think senior center or the like);
  • Financial Institutions including: personnel of banks, savings and loan associations, credit unions, and other lending or financial institutions;
  • Care Providers including: a caretaker, staff member, employee, or consultant for a licensed or certified care facility, agency, home, or governing board, including but not limited to home health providers; and a caretaker, staff member, employee of, or a consultant for, a home care placement agency, as defined in Colo. Rev. Stat. § 25-27.5-102(5).

The statute also provides for immunity from prosecution for a reporter (unless the reporter is the perpetrator, co-conspirator or complicitor.

So what happens after a report is made? This will be the subject of law enforcement training and will be interesting to see how the system works.  At this point, it looks like Adult Protective Services and law enforcement agencies will share responsibility for reporting and investigation.  Based on this new law, it is reasonable to assume that the APS reporting will be shifted more to law enforcement in accordance with the goals of the new statute.  It is also worth noting that the definition of “abuse” in 18-6.5-102 is broad and interpreted expansively.

One last point I’d like to share. . . .  An interesting and often overlooked question is what happens to the civil rights of older adults, when as a matter of chronological age and sometimes other circumstances, a person is categorized as an elder and entitled to protections based on their potential status as victim.  Here’s a link to an article by Nina Kohn from 2009 entitled “Outliving Civil Rights.”  Kohn is a law professor and discusses the intersection of constitutional rights and mandatory reporting.  Whether one views these laws designed to protect elders as helpful or paternalistic is a matter of perspective, but she raises interesting questions about the swinging pendulum leaning toward more protections and the dark side of that movement which can involve curtailment of civil rights.

Stay tuned for more on this topic.

©Barbara Cashman 2014   www.DenverElderLaw.org

When Death Is Not Death: Stumbling Over the Parameters of “Brain Dead”

Geese at Ketring Lake

Geese at Ketring Lake

I came across this very interesting article in the New York Times about two recent cases of young persons and death.  This is not any old death, this is legally recognized “official” brain death.  Only problem is, the definition of brain dead is a bit tricky.  In Colorado, we have advance directives that distinguish between persistent vegetative state and terminal condition.  As the NYT article points out, the Supreme Court cases which make the advance directive, a/k/a living will so popularized, were all cases involving persons (women) with the diagnosis known as persistent vegetative state, as distinguished from “brain dead.”   Colorado has recognized brain death from at least 1985 on, but one of the challenges with this definition is that it attempts to draw an arbitrary line between the dying process and death.  Where is the end of the line?

The Uniform Law Commissioners created the Uniform Brain Death Act in 1978.  Brain death became much more relevant as a result of organ transplantation and as neuroscience and its imaging technology has become more advanced, there are many more nuances known about the distinctions between persistent vegetative state and when someone has experienced brain death.  Setting aside the medical distinctions, the law does distinguish between brain death and persistent vegetative state.  Here is an article about the legal terminology and some of the techniques used by medical professionals to make such a determination.   Here, I think of the beautiful film The Diving Bell and the Butterfly, about the French writer with “locked in” syndrome as a result of stroke.  There have been several articles in Scientific American on this topic of what is “conscious awareness” and a finding cited in this article that patients who were otherwise in a vegetative state were found to be minimally conscious and capable of learning.   So much for that “bright line” between vegetative state and cognitive awareness.

Interesting and more controversial is this topic of the NY Times article, in the context of how these determinations play out with a teenage girl and a young mother, the persons declared “brain dead” by doctors in California and Texas, respectively.  Both these young women are on ventilators, and their hearts continue to beat.  The NYT article observes: “[t]he two cases are poignant because of a biological quirk of the body: the patients’ hearts continue to beat.”  When I read this observation, I knew that the authors were folks who view the heart as a pump, a pump for the benefit of the brain.  It occurs to me that this may not be a biological quirk as much as a mystery.  Perhaps we don’t know nearly as much about how the body works as we pretend to in our high tech and information saturated era.

So, I wonder – what is running their bodies if their brains are dead?  I disagree with the NY Times journalists that it is “a quirk.”  This is a most basic question yet it challenges our entire brain-centric reductionist view of what life is (rather, how it is measured) and how it is readily distinguishable from death.  My question is simple – how is it that a brain dead person can still live – doesn’t science have a bit of explaining to do here?  No, evidently not if one takes the reductionist view.  The brain is an organ of the body, but it is not on its own “the intellect” or “consciousness” (unless you are a tightly-bound reductionist, and they are represented among neuroscientists).  Since when does only the brain count in making a determination of death?  If the heart is not dependent on the brain, then why should the brain death determination override the determination of death?

Perhaps beyond the difficulties with reconciling our imposed definitions on life and death, or at least attempting to do so in order for them to be consistent with what we think we “know,” there is something that cannot be measured quantitatively but is rather a quality of being.  What if Black Elk, the blind Lakota sage, was able to see with the eye of his heart?  What if there are other ways of looking at the heart that we have not yet discovered?  I’m sure this won’t be the last time I ask this question.

Finally, one last observation.  In this country where provision of medical care is part of our free market economy, does this have bearing on a patient’s quality of life or right to continued care?  Here is a recent law review article about the tort of “wrongful prolongation of life,” which are the only lawsuits of which I am aware involving failure to follow the stated wishes in an advance medical directive.

If all of these questions are too much, I suggest some beautiful artwork on a similar theme.  It is work by Mihoko Ogaki called Light After Death and you can take a look at it here. Thanks to Tomasz for sharing it on Google+!

©Barbara Cashman  2014   www.DenverElderLaw.org

The Durable Power of Attorney and Financial Abuse of Elders

Four Generations of Family

Four Generations of Family

I’d like to start at the beginning with some terms. I’ve written about them before. . . .

A general durable power of attorney (POA) is an arrangement where one person (the principal) appoints another person (the agent) to act on behalf of the principal regarding matters specified within the scope of the POA.   Under The Uniform Power of Attorney Act, which is Colorado law, powers of attorney executed after Jan. 1, 2010 are by default “durable”  meaning it can survive the disability or incapacity of a principal.  A POA is an important tool people can use to allow others to assist them in the event they need help managing finances.  Another important detail of note is that the POA is also by default a “standing” power.  “Standing” means that the POA can be used as soon as the document is executed by the principal.  This doesn’t mean people rush out to use them.  I usually tell my clients that I hope they never have to use these documents (or more accurately, that their agents will never have to use them) but they are ready to go if needed.  Remember that one of the primary purposes for a durable POA is to keep people out of having to go to probate court for a protective proceeding like a conservatorship. One of my more important questions to a client when considering the use of a POA and who to name as agent concerns trust and accountability.

What is financial abuse of elders?  It can occur on different levels, including; Inadvertent or careless behavior; negligent misuse of a position of responsibility (like agent under a POA); and intentional misuse or conversion of an elder’s money or property.  Colorado’s new law will soon require certain persons to be mandatory reporters of elder abuse.  In Colorado we have AARP ElderWatch, which is a partnership between the Colorado Attorney General’s office and the AARP foundation.  You can get more information about that here.

What are Some Steps toward Prevention?

The National Criminal Justice Reference Service has a good and fairly up to date listing of resources about fraud and financial abuse of the elderly.

It is important to distinguish between types of elder financial abuse: by those scammers who are strangers looking  for easy prey in the form of isolated, lonely, physically or mentally challenged or disabled elders; by adult children, grandchildren or other family members or friends who may be “impatient heirs” who may not be willing to wait until the elder dies to inherit from them.  Temptation is simply too much for many people!

Transparency is another important safeguard for a principal and to help the agent understand there is both assistance and oversight available when needed.  If the agent knows there is likely to be someone “looking over their shoulder” – whether it is another sibling, a professional, or a reporting requirement, this can encourage good habits on the part of the agent that benefit the principal. Other considerations include:

having another set of eyes watching bank and investment accounts

using a professional fiduciary as agent or for bill paying purposes

What makes financial abuse or exploitation of elders difficult to detect?

  • Shame or embarrassment on the part of the elder, particularly when the abuser is a child;
  • Elders often feel a loss of autonomy and have discomfort with vulnerability;
  • Manipulation and Domestic violence type behaviors by person in control of the money; and
  • The fragility of elder’s emotional and physical health.

Elder law attorneys typically have a network of people and both public and private resources that can assist an elder victim of exploitation or abuse.  In a follow up to this post I will talk about the agent’s “job description” and fiduciary duties, along with some ways of detecting elder financial abuse.

 ©Barbara Cashman   2014    www.DenverElderLaw.org

What’s a Boomer to Do? A look at Continuing Care Retirement Communities

 

dad's gone fishing

dad’s gone fishing

A few months back I had some friends over for brunch.  They were all baby boomers coming up soon on retirement age.  One of them, Mark, encouraged me to write a post about all the continuing care retirement communities (CCRCs) that are sprouting up and what people might want to know about this type of living arrangement.  This is a broad topic, especially for us boomers who love to exercise our independence and self -expression.  Let’s face it, the medical-model of the nursing home, or SNF (skilled nursing facility) as folks in my line of work are prone to call it, is no longer the predominant model of infirm or old-age care.  Some would argue whether it ever occupied that status. This post is about considering options.

Many of us are by nature planners, and retirement planning and estate planning go hand-in-hand, just as does disability or life-care planning.  Maybe there are too many hands here. . . !  My point is that the disability aspect comes into play as a result of increased longevity in our country.  While we are lengthening our days considerably, we have no way of knowing whether our retirement savings will outlast us, nor do we know whether we will need any assistance from others – family members or hired professionals – to help us pay our bills and assist with our day-to-day living.  This topic is huge, so I am narrowing it to just the FAQs about CCRCs.

The American Association of Homes and Services for the Aging defines a Continuing Care Retirement Community (CCRC) as “an organization that offers a full range of housing, residential services, and health care in order to serve its older residents as their needs change over time.”  The focus is not on the medical needs of older persons but rather on helping people maintain a sense of independence and community.  There are still many people who cling to the idea that the only way to maintain their independent lifestyle is to live on their own is a house that may be difficult and even dangerous for an older person to maintain.  The growth of independent living, assisted living and CCRC-type communities attest to the relaxation of that otherwise inflexible approach to an independent lifestyle.

Well, these CCRC’s have been around for many years, even if many of them fell on some pretty lean times over the last decade or so.  Belt-tightening seems to be easing and optimism often appears less guarded these days.  Here’s a recent post about the market boom of a boomer market in assisted living developments.

Many families are undoubtedly going to continue with their multigenerational living arrangements, and you can read my blog post about that topic here.    In the Denver metro area of Colorado, there are several CCRCs.  Each one has different arrangements for how to enroll, pay rent, buy into, and generally become a member of the community.  For the vast majority of us who have little or no long term care insurance, these living arrangement can provide a certain amount of peace of mind.  Check out the AARP’s article about CCRCs here.

What is a CCRC?

A CCRC is a community which is designed for people aged 60+ (the age often varies) and provides a continuum of residence-based care.  Beginning with independent living, one can expect private, low-maintenance housing – as in an apartment or cottage home along with a built-in community.  The “continuing care” part comes into play in the event a person needs or wants additional services like housekeeping, transportation, and security.  You can expect community attracting spots like a fitness center, performing arts center, along with various dining venues.  There are also plenty of activities to keep people socially engaged like classes, field trips and the like.

What about the “care” in CCRC?

As far as the care part goes, this often encompasses on-site care that including assisted living, memory care, skilled nursing, and rehabilitation services.  It is by nature a continuum, designed to offer services in the event they are needed in a nearby setting.  These care include in-home services, assisted living, memory care, skilled nursing, and rehabilitation services.  This can simplify things especially for a spouse of life partner of a person who needs more care and services.

How does someone go about finding an appropriate CCRC?

CCRCs began to crop up as not-for-profit based communities, often sponsored by faith communities or other similar affiliations for people.  Many CCRCs have cropped up in more recent years that are for-profit institutions.  There is a listing of many of these types of communities under the guise of the Commission on Accreditation of Rehabilitation Facilities, and another acronym is CCAC for Continuing Care Accreditation Commission (in case you might have wondered about the nature of “rehabilitation” in the facility) along with important standards to consider.  Keep in mind that there are many types of CCRCs and many homes are not yet accredited and there are different types and levels of accreditation.

Why are the location and setting of a CCRC important?

CCRCs can offer a full-service lifestyle right on campus. This can be very important for a couple to maintain an independent lifestyle but still allow a spouse who may suffer from health challenges to receive care within the community while providing support for a caregiver spouse.  Many residents  appreciate having easy access to greater community amenities such as cultural, recreational, spiritual, and retail offerings. Additionally, residents often choose a location that allows them to maintain close ties with family and friends.

Do I have to rent or can I own a home at a CCRC?

Some CCRCs offer equity, but most do not involve a real estate transaction. If you are looking carefully at these options or considering them for another, read the contract very carefully.  There is no “standard” type of contract for these living arrangements. Many communities offer an entrance fee plan, guaranteed by a contract or residency agreement that entitles residents to occupy their chosen cottage or apartment and use the common area amenities, programs and services. The one-time entrance fee – which is usually partially or fully refundable – also assures residents access to the on-site continuum of health care.   I am familiar with one local facility that had a $10,000 “fee” chargeable to a resident’s move from a two-bedroom unit to a more affordable (from a monthly rent standpoint) one-bedroom unit after the spouse passed away.  Keep in mind there are typically monthly service fees that come into play as well, depending on one’s circumstances.  If you are considering a move to a CCRC, for yourself or a loved one, please take the time to carefully read the contract so that there are no surprises.

CCRCs are a relatively recent development in living arrangements that are designed to encompass different living arrangements in a single community, thereby obviating the need for someone to move to a different residence or facility as their care needs increase.  It will be interesting to see how they evolve in the coming years.

 ©Barbara Cashman     www.DenverElderLaw.org