Elderhood and Winter As Life Stages

 

Siennese Waters

Siennese Waters

I would like to wish everyone a Happy New Year.  Instead of another post written by me, I am simply closing this last post of 2015 year with a quote from the nineteenth century Scottish author and poet George Macdonald, from his book Adela Cathcart:

The winter is the childhood of the year….It is as if God
spoke to each of us according to our need: My son, my
daughter, you are growing old and cunning; you must grow a
child again, with my son, this blessed birthtime.  You are
growing old and selfish; you must become a child. You
growing old and careful; you must become a child. You
growing old and distrustful; you must become a child.
are growing old and petty, and weak, and foolish; you
become a child – my child…

May this quote, this observation of the season, assist each of us in focusing on and appreciating  our inward state of affairs, and not just the easily recognizable outward, external and material world.

© Barbara E. Cashman 2015   www.DenverElderLaw.org

 

 

Elder Financial Abuse of a POA by an Agent – part I

Memorial to Parents at a Child's Wedding

Memorial to Parents at a Child’s Wedding

 

Here’s another post about elder financial abuse and exploitation.  This is the first of a series of posts about one particular aspect of elder financial abuse – the misuse of a general durable power of attorney (POA) by an agent.  As many of us either already know or just suspect. . . . quantity does not equate with quality of life as more of us are living longer!  This concern about how we manage our longevity and plan for incapacity is a phenomenon that will affect us in increasing numbers as the baby boomers continue to grow older.

Elder financial abuse defined: According to the National Center on Elder Abuse (ncea.aoa.gov), financial exploitation (also called financial abuse) is the illegal or improper use of a vulnerable adult’s funds, property, or assets. Financial abuse is a crime, and each state has its own definition of financial abuse.

Here’s an overview of some of the “landscape” of elder financial concerns.  Lots of folks were relieved when Colorado finally passed a mandatory reporting act which allows for much greater law enforcement involvement in such matters.   In the “bad old” days, most folks calling the district attorney’s office were told the alleged abuse or exploitation was a “civil matter” unless it was a sufficiently large amount of money.  I also think it’s helpful to consider this development in light of the Colorado Court of Appeals’ ruling from 2013 in People v. Stell, a criminal case with application to Colorado’s Uniform Power of Attorney Act.  You can read more about that decision here.

A friend told me about a recent issues of the American Bar Association’s GPSolo magazine that focused on elder law.  You can read an article about Advocating for Elders Suffering Financial Abuse and Exploitation here.

There aren’t a lot of statistics available about abuse of financial powers of attorney, but it has shown that most victims of financial abuse or exploitation retain capacity, meaning that the principal can put an end to the agent acting on the principal’s behalf.  This is important because of how a financial POAs work.  They require third party acceptance (by banks, brokerage houses and so forth) and so if an agent is behaving badly, the principal must take immediate steps not just to revoke the POA that gives the agent the authority to act, but the principal must also notify third parties with whom the agent transacted financial affairs or may have done so to inform them of the revocation of the POA and that the agent suspected of misbehavior no longer has authority to act on the principal’s behalf.

I have worked with elders who have been exploited by their children.  It is exceedingly difficult for most parents to come to terms with the fact that their child is stealing from them.  Telling a third party about this can be painful and embarrassing, and unfortunately that is what many exploiters bank on – that the elder will feel ashamed and will not seek assistance.   When an elder contacts me about this I assure them that the majority of the POA abuse cases do seem to involve adult children.  This is not to diminish the number of non-relative predators out there looking for prey in the form of an isolated and trusting elder who may be sucked into a too-good-to-be-true business deal or simply a plea from a stranger or “long lost grandchild” who seeks financial assistance in hard times.

The exploitation of an elder by an adult child agent under a POA does not seem to have any “typical” types of red flags, as they are often dependent upon the nature of the parent-child relationship.  This can complicate matters greatly, particularly if the adult child is one of several siblings and is working to isolate the parent so as to make the exploitation easier.  Many of these behaviors in the POA context – control over the parent’s finances, dictating choices an elder has previously made independently, other life activities involving the “care” of the elder, along with limiting access to others who might provide emotional support or making such communication difficult, bear a striking resemblance to the behaviors of a person using such tactics for their own gain in the form of psychological or emotional abuse.  When you couple an elder’s isolation and frailty with a person who withholds information from an elder and access to others who would be allies, this can be a very harmful mix.

When an agent under a POA keeps information from an elder and does so in a secretive or non-transparent manner, this is a serious “red flag.”  For this post, I will focus on prevention – what an elder needs to consider before signing a POA.

What are some steps people can take to help prevent financial exploitation by an agent under a power of attorney?

  1. Choose you agent carefully! This is by far the most important aspect of using a POA. Name someone you trust with money who isn’t secretive and can answer questions about finances without difficulty
  2. Have a good idea of what your assets are and communicate how you want them to be managed. This will help inform your agent about how they can discharge the fiduciary duty which the agent owes to their principal
  3. In the event of incapacity, it is important that the agent have an idea of what wishes are about what to spend first and how money might be invested or investments consolidated, so that these instructions can be written for the agent (not too detailed, because things are always subject to change); and whether the agent has the authority to make gifts.
  4. Picking an agent who will take extra care in matters regardless of the principal’s capacity. Keep in mind that capacity and competency are not typically either/or kinds of propositions.  Just because someone has been diagnosed with dementia doesn’t necessarily mean the person lacks capacity.  Conversely and more commonly, an elder often does not receive this diagnosis (which often isn’t conclusive of much of anything).  Dementia can often be a long and winding path with many periods of lucidity or intermittent “sundowning.”
  5. Remember that a POA remains revocable as long as the person retains capacity to revoke it.  The principal should have some idea of what would constitute grounds for firing an agent or revoking the POA and how easy or difficult this might be on an emotional level.

So what might this kind of POA abuse or exploitation look like?  Often the principal’s major asset is the home.  Is an agent transferring the principal’s interest or a partial interest in the principal’s home to the agent?  What I have seen on more than a couple occasions is an agent use a quitclaim deed to accomplish this transfer.  One was for “safekeeping” – the agent was afraid that a sibling was going to be given an interest in the property, so the agent transferred to herself first (!); and another transfer was “just in case” mom needed to qualify for Medicaid later one, at least that was the rationale for relieving her of her sole asset.

In my next post on this topic, I will be looking at the steps an elder can take to stop an agent and remedy a situation created by a misbehaving agent or an agent who has been financially exploiting or abusing an elder.

© Barbara Cashman 2015  www.DenverElderLaw.org

Unlearning, Elderhood and the Aging Process

Chalk Rosetti in progress

Chalk Rosetti in progress

 

One of the best parts of my job as an elder law attorney is I often discuss the “big” questions with older people – their values factor into both planning and crisis management.  So . . . . what is the wisdom of elderhood?  Is it the stubbornness of life, or the wisdom of aging, or perhaps a combination?  I was reading an interview with Dr. Tom Kirkwood, entitled “Inevitability of Aging?” in Mind, Life and Universe: Conversations with Great Scientist of Our Time, Lynn Margulis and Eduardo Punset, eds., Chelsea Green, 2007.  In the chapter’s introduction which precedes Punset’s interview of Kirkwood, Punset observes “the first great myth is the human certainty that we are programmed to die.”  Id. At 188.  This myth to be “unlearned” is the topic of exploration for the interview of Dr. Kirkwood.  What I find fascinating is the use of the term “myth” in the context of what we think we know about aging and lifespan.  This is of course a popular and limited definition of “myth” meaning a widely held but false belief or idea.

Let’s take a quick look at human mortality by a couple terms and numbers:

The familiar one – Infant mortality – this is the death of an infant, and child mortality is typically reference to a child under the age of 5.  We think of these numbers as not particularly concerning in our country, which seems odd due to the fact that we have the highest rate of infant deaths (6.1 per thousand in 2010) which is more than double the same figure in several other industrialized countries.    US life expectancy is also the lowest among wealthy nations, attributed to our shortage of affordable and available health care (disease), obesity, violence and other factors.

Should it then come as a surprise that our longevity in this country might involve more medical intervention and support, to the extent we can afford it and it is otherwise available?  What is interesting is that health spending in the US accounted for nearly 17% of the GDP in 2012, far greater than the average spent by other OECD countries.

So enough of the forensic aspects of this longevity back to the quality aspect, of the possibility of unlearning the thinking that there is no biological limit on human life.  Dr. Kirkwood challenges three aspects of aging and death as inevitable.  Kirkwood looks at longevity from a cellular level, identifying its threats – including oxygen and free radicals and the increased incidence of cancer as our cells often mutate erroneously, unable to repair themselves or clear out the garbage.  He concludes that aging is simply a result of damage to our body, and that much of it can be avoided by decreasing our food intake dramatically.  Reminds me of the study that came out a few years back about the long term study of rhesus monkeys perhaps, that longevity is to be gained by calorie restriction, but I also remember something about the study observing that the subjects were ill-tempered. . . . !

So the balance again and the question – what is our longevity for?   It begs the question if you aren’t already looking at your life in elderhood in some reflective way.  I am not talking about reminiscence, plenty of people mistake that longing for the past as something other than what it is – a refusal to let go of what once was (remember “chronolatry”?)  And so what if learning from one’s mistakes isn’t what wisdom in elderhood is about at all?  What if the wisdom of elderhood is about being receptive to what the future holds for us, being able to hold that uncertainty?  This relationship with the future, a letting go of the illusion of control that is based on some past event that was known, might be a threshold for the wisdom of elderhood.  Pressing on amidst disappointment, amidst difficulties, is of a different quality than proceed blindly with hope.  Hope in the former sense is grounded, based on what is in this life, not some far-flung fantasy.  It strikes me that this type of is from waiting and experience, an expectation of something coming from the future, not something continuing from that past.

Shouldn’t elderhood herald a ripening, a wisdom that is concerned with the ultimate questions, in whichever form they present themselves?  As we travel along more of our life’s paths, many go beyond the rules of what we have learned, the explanations of politics, natural sciences, economics and other general standardized types of analysis into the uncharged territory of interrogating and forming our life’s meaning, purpose or significance.  These are the “being” questions as distinguished from the “doing” questions!

Well, I seem to have led us to another dead-end!  I think it is high time for some humor, this video is a song about that elderhood “rite of passage” – the colonoscopy!

©Barbara Cashman  2015   www.DenverElderLaw.org

 

Medical Durable POA and Mental Health Services – a Volatile Mix

Orca near Vancouver BC

Orca near Vancouver BC

 

The medical durable power of attorney (MDPOA) is an important document that all adults should have.  Why? As our population ages and our longevity is extended, our chances of becoming unable to give informed consent for medical care increase.  I have previously written about informed consent in the context of medical care, but suffice it to say that when a person is unconscious, unable to communicate or otherwise too “out of it” to give informed consent to decide yes or no to a proposed course of treatment – it is extremely helpful to have a substitute decision maker named who can decide for you.  In this post, I will not revisit the smorgasbord of health care planning documents as I have done previously, but I will instead focus on a much more obscure and troublesome intersection in the elder law field: where persons attempting to assist with the requested care of an older adult who has previously been diagnosed with mental illness can get caught in a thicket surrounding access to the mental health information.

Why is this a big deal – can’t an adult (known as a “principal” in power of attorney terms)  with mental illness simply designate an agent under an MDPOA just like any person, assuming that person is not under a legal disability such as a guardianship?  Surely I am remembering that guardianship is not automatic by any stretch for an adult with mental illness or with developmental disabilities. . .

The answer is yes, but . . . well, it can be a bit more complicated than that.  As more adults – especially the aging baby boomer cohort – reach retirement age, there are more people who will have benefited from a more open attitude toward the provision of mental health services in this country.  Just because there are mental health diagnoses doesn’t mean they have to overly complicate that person’s naming of an agent under a health care power of attorney, but they sometimes result in that.  Most of us don’t think about this aspect in the context of “health care” and the MDPOA, but there are important details that can trip up our longevity planning and complicate access to information and assistance for an adult which otherwise might easily be provided by family members or other loved ones on whom we rely.

What does this scenario look like?  This doesn’t come up  very often, but when it presents itself, it is often very challenging to sort out and even more difficult to come to an arrangement that meets the needs of all those involved.  On a continuum, the most straightforward situation is with a family member who is seeking to name, in writing, particular persons as his or her agents.  In this scenario, it is a good idea to have a customized MDPOA which sets forth the scope of the agent’s powers, so it is clear that they include mental health matters.  Where it gets much more difficult is where the adult may want to name an agent but doesn’t feel clear about the mental health decision-making authority or where the person’s capacity to execute a MDPOA may be in question.  The most challenging situation is where a concerned family member seeks to petition the court regarding an elder adult, who might otherwise be a person who is incapacitated under the guardianship statute, and for whom a doctor’s letter would generally substantiate the nature, extent and cause of the incapacity, except that if mental illness is the primary diagnosis, then much different protocols apply to the protection of that information, and there may also be warranted a different type of proceeding in the probate court.  Let’s take a closer look at some of these issues.

Here’s a link to an overview of the treacherous terrain involved here.  There is also something known as a psychiatric advance directive (PAD).  In Colorado this means that a MDPOA may have instructions, or instructions may be given to the agent named in the MDPOA which specifically relate to the provision of mental health services, including psychiatric medications or hospitalizations.  These instructions must appear in the MDPOA as they may not otherwise be recognized in a “stand alone” document.

Some of the problems originate in the different sources of law – federal law of the Health Insurance Portability and Accountability Act HIPAA relating to protected health information, for example, and state law relating to protective proceedings (guardianships and conservatorship) and mental health proceedings. The appointment of an agent under an MDPOA is governed by state law.

HIPAA is a federal statute which has had a tremendous impact on health care providers since it was promulgated in 1996.  My own MDPOA form refers to the regulations (from the Code of Federal Regulations) which cover the statute’s provision regarding who is a person to whom information can be released.  The codified HIPAA rules cover protected health information and its access, including electronically transmitted health records and require consent for the disclosure of such information to third parties.  Where an agent is named to make decisions on behalf of the principal and the principal cannot give informed consent to treatment, the agent obviously requires access to the medial information in order to make a decision about treatment options.

Mental health matters are generally governed by state law.  In Colorado, a statute governs the particular types of providers in the mental health field, including psychologists, social workers, counselors, therapists and others.  See C.R.S. § 12-43-101 – 805.  Note that HIPAA gives an exception to the general rule requiring consent prior to sharing of information regards “psychotherapy notes” which are a special form of protected information and the regulation is fairly detailed.  See 45 C.F.R. § 164.508(b), (c).

The connection between federal HIPAA law and state mental health legislation and other sources of law generally concern the disclosure of information.  While HIPAA is a comprehensive federal statute, it is not designed to preempt state law.  The CFR relating to substance abuse regulation (which fall under the umbrella of mental health for HIPAA purposes) provides that the federal law is designed as a “backstop” of sorts in that if the state law is more protective, it controls, otherwise the federal law often provides the minimum standard.

There has been some recent criticism of Colorado’s rules relating to what constitutes an “imminent danger” for purposes of an involuntary commitment (a/k/a 72 hour hold).  Finally, for more information, see this article about HIPAA and mental health records.  That’s all for now, stay tuned for developments.

©Barbara Cashman  2015   www.DenverElderLaw.org