How Does the Service Many Elder Law Attorneys Provide Differ From the More “Traditional” Attorney-Client Relationship?

I’m pleased to be presenting again at the Fourth Annual Elder Law Retreat in Vail, Colorado next week.  It’s put on by our Colorado Bar Association Continuing Legal Education, Inc. and is co-sponsored by the Elder Law Section of the CBA and the Colorado Chapter of the National Academy of Elder Law Attorneys. My breakout sessions cover the intersection of ethics and practice management for attorneys practicing in the elder law field.

I thought an overview of some of the different ways that elder law attorneys are hired by and work with clients, and how the relationships can be more complicated than the more “traditional” areas of practice would make an interesting blog post.  So here goes. . . .

I’ve said this in a few other places already, but we’ve never had this many 80 and 90 year-olds on the face of the planet before!  Many of us baby boomers hope that our life spans will extend beyond those of our parents, so what’s the big deal?   That’s where the relatively new field of elder law comes in . . . .

What is Elder Law?

Elder law is a practice area that started out as an outgrowth of the more traditional trusts and estates field, but is essentially a general practice area that is concerned with the needs and legal challenges of older people (elders) .  With medical advances and relative affluence, people are living longer, and periods of incapacity are more common, along with a greater incidence of cognitive and physical disability.  Other factors that impact the growth of elder law are the outsourcing of some of the care that families have traditionally provided elders, which has resulted in no small part from the number of women in the workforce, along with family members living apart from each other geographically.  Some important distinctions are relevant here – elder law attorneys may sometimes:

    • meet with clients at home or in health care facilities
    • meet with clients who are brought in by family member to the lawyer’s office
    • work with other allied elder care professionals like geriatric care managers
    • work within a “communitarian” or family-based approach to benefit all family members

These are just a few examples of how the “traditional” single client attorney client relationship, that is “typically” geared at some type of litigation to fix a problem differs widely from an approach where an elder client is looking for counseling  and preparation of documents that will facilitate their continued support with family member involvement.

The majority of elder law attorneys – except those practicing in contested probate matters – tend to look for ways to avoid litigation and may adopt an approach that is not the traditionally “adversarial” approach but take one that is decidedly “facilitative” in outlook.  What I mean here is an attorney who can think outside the box and negotiate agreements that aren’t exclusively protection oriented but are results oriented.  In a litigation obsessed world, many lawyers are focused exclusively on their concerns as lawyers – avoiding bad results for their clients.  This is often to the detriment of what the client wants – a creative solution that provides results.

How Does the Delivery of Elder Law Legal Services Differ from a More “Traditional” Approach?

Due to the age of many clients, elder law attorneys must be aware of and sensitive to a number of issues which do not affect a more traditional law practice.  Some of these include:

    • sensitivity to cognitive and physical limitations that may be associated with aging (mobility, hearing, etc)
    • familiarity with medications  and how these may impact the attorney/client relationship
    • awareness of impact of family dynamics and how these impact legal and financial planning
    • sensitivity to relationships needed to maintain well-being and autonomy

 

How Elder Law Attorneys Can Work with Clients

Many of us who practice elder law work with our clients in ways that are beneficial to our clients but that sometimes appear to fall outside the norm of a “standard” attorney-client relationship.  These can include a need for the attorney to:

    • conduct a separate meeting with an elder brought in by a family member
    • consider whether joint representation (two people) or multiple representation is appropriate
    • determine who is “the client” so as to identify the person to whom the attorney owes her duties
    • assess whether a potential client has the capacity to enter into an agreement with an attorney for her services
    • work productively within difficult or strained relationships among family members
    • be able to work with other people who are involved in the elder’s care

For me, elder and estate law and mediation practice is satisfying work because of the human relationship and “helping” aspects.  Sometimes people think this sensitivity might be inconsistent with the legal analytical skills required to come up with a sound strategy and to draft effective documents to execute the strategy, but I assure you that there are many of us who are attracted to this field because of this unique skill set required.  And yes, many of us happen to be women, so we can relate to many of the caregiver issues in ways that are consistent with our own experience.

Elder law is an interesting and intellectually challenging area of practice and it is important that the client feel comfortable working with an attorney and discussing many personal matters.  In my opinion, estate and elder law attorneys tend to be more responsive and respectful of people’s vulnerabilities – whether these are due to skepticism about what services an attorney is proposing to provide, a client’s difficulty with understanding what “the law” is relevant to a particular question, or a client’s state of fragile or frail health.  I have to say that I enjoy working with other estate and elder law attorneys  in the Colorado Bar Association’s Trusts & Estates and Elder Law Sections– they typically know how to play nicely together in “the sandbox.”

 ©Barbara Cashman, LLC   www.DenverElderLaw.org 

Legal and Financial Considerations for Nontraditional Relationships part 2

 

Last night I attended the monthly meeting of the Women’s Estate Planning Council , and as usual – we had a very informative speaker.  Bradley L. Kolstoe  presented “Savvy Social Security Planning,” about understanding the importance of Social Security.  I have to say that I would use the term “understanding” from my perspective here rather loosely.  It reminds me of P.L. Travers’, the author of Mary Poppins (yes, she’s still around – she recently battled Voldemort at the London Olympics!) description of the term as “standing under.”  There was a downpour of information and a lot of  it rolled right off me!  Luckily, we can visit Brad’s website here, and it has several helpful articles

So what about Social Security and nontraditional relationships?  Well, social security retirement is the biggest federal benefit regime and it only applies to individuals and married couples (I’m leaving out minor children and others intentionally here).  What are the implications for couples who are co-habiting but not in a marital relationship?  Huge!  I think it is part of the many details that couples who could otherwise be married typically overlook.  I’m talking here about opposite sex couples, because federal benefits only apply to them as long as the Defense of Marriage Act Defense of Marriage Act (DOMA, Pub.L. 104-199, 110 Stat. 2419, enacted September 21, 1996, 1 U.S.C. § 7 and 28 U.S.C. § 1738C) is in force – which may not be much longer. . .

So what’s the point I’m making here?  I recently published a book review in The Colorado Lawyer  of Professor Cynthia Grant Bowman’s 2010 Oxford University book “Unmarried Couples, Law and Public Policy.”  This book covers the marriage debate (cohabitation), but not the “marriage equality” (for same sex couples) debate.  With the decreasing number of people getting married, and divorces among folks over 50 going up considerably ,retirement planning and factoring in social security benefits are getting more complicated all the time!  The bigger issue that concerns me is for the unmarried couples who tend to underestimate the value of social security to financial stability in retirement years.

As Bowman points out in her book, cohabitation in the U.S. is problematic at best.  Unlike nearly all European countries, which have adopted some national laws  aimed at addressing the cohabitation phenomenon, the U.S. is still “on the fence” about some pretty basic issues.  What we have in this country, is a patchwork crazy quilt of local, sometimes statewide recognition of certain limited rights in particular states.  There is no standard for these rights, they are typically determined on a case-by-case basis, based on particular facts of each case brought to a court’s attention.  Cohabiting couples either have to forge their own agreements about important financial and legal considerations, or see what happens as a result of legal action.  There is no legal proceeding for “termination of cohabitation,” so the type of legal rights sought to be enforced really depends on the particular couple.

This can be a big problem, particularly for those vulnerable persons in a cohabiting relationship – who tend to be (but this is changing to some extent) women and children.  Bowman recommends providing legal remedies to cohabitants including:

(1) domestic partners who have been together two years or more and have a child together should be treated as though they were married;

(2) the ability to “opt out” contractually of these obligations should be easily available for couples not wishing to be treated as married; and

(3) a system for registration as domestic partners should be provided, accompanied by all the benefits and burdens of marriage unless the partners opt out with their own contractual arrangement delimiting their rights.

Bowman at 223.  I think as a country we might be some distance away  from providing such protections to cohabitants, so in the meantime it’s best to protect yourself by knowing what rights you have and what rights you don’t have when you are in a cohabiting relationship.  Bottom line is – don’t make assumptions based on your lifestyle.  Just because you feel like you’re married doesn’t mean the law won’t treat you like “legal strangers!”  Make sure you know what your future looks like if you are in an unmarried (cohabiting) relationship.

 ©Barbara Cashman, LLC   www.DenverElderLaw.org

Mistakes People Make with Medicaid and Long Term Care

  1. Thinking it’s too late to plan.

There is a lot of information about Medicaid  for long term care of the elderly – rules, eligibility,  etc. available to the public, (FAQs from Colorado Dept. Health Care Policy & Financing ) and many people suffer from information overload in this regard.  Sometimes this results in reacting to a situation without a plan, which can add to the stress of uncertainty.  People considering future Medicaid application are often in a downward health spiral that creates stress and anxiety for family members who are helping and providing for care.  This is a difficult mix!  Before you jump to conclusions about whether it’s too late or too early to start planning for Medicaid qualification – inform yourself.  It’s never too late to have a strategy – especially if you want to manage stress effectively during difficult times or the end stages of an elder loved one’s life.

2. Giving away assets too soon.

 Many of us hear from people who want to “avoid paying the nursing homes” for what is perceived to be overpriced health care.  The fact is, most long term care for elders is provided by family members on an unpaid basis.  Fewer people (as a percentage of the elder population) are living in nursing homes (or SNFs – short for skilled nursing facilities) but there is a point when the medical care needed to sustain a person may require placement at a SNF.  Placement in a SNF may be a cheaper alternative to home care for many frail elders and is often a necessity.  Medicaid is the national health care program for poor and low income Americans and is the safety net for long term care and Medicare covers less than 9% of SNF care.

3. Ignoring important safe harbors created by Congress.

This is some of the Medicaid fine print! Certain transfers are allowable without jeopardizing Medicaid eligibility. These include: transfers to disabled children, caretaker children, certain siblings and to a trust: for a disabled person under age 65; a transfer to a “pay-back” trust if under age 65; and a transfer to a pooled disability trust at any age.

4. Failing to take advantage of protections for the spouse of a nursing home resident.

Several protections are afforded the noninstitutionalized  “community spouse.” These protections include the purchase of an immediate annuity, petitioning for an increased community spouse resource allowance, and in some instances petitioning for an increased income allowance or refusing to cooperate with the nursing home spouse’s Medicaid application.

5. Applying for Medicaid too early or too late.

Doing either of these can result in a longer period of ineligibility in some instances, so it is important to try for “the golden mean” in terms of timing.

7. Confusing IRS tax rules with Medicaid rules.

The rules regarding income, estate and gift taxes are completely separate from Medicaid. While it is important to be mindful of the tax consequences of any type of asset planning, confusing these two different systems can lead to disaster.

8. Not getting expert help.

This is a complicated field that most people deal with only once in their lives. There is lots of money at stake, and the information can be overwhelming.  For many people, it makes sense from a peace of mind investment perspective to consult with persons who make their living guiding and counseling people about these issues.

©Barbara Cashman, LLC  www.DenverElderLaw.org

 

Legal and Financial Considerations for Nontraditional Relationships

 

 

This post is the first of a series about estate planning and unmarried couples.  By “unmarried couples,” I mean both heterosexual couples who choose not to marry and same sex couples whose unions or marriages are recognized by some states.

Being in a nontraditional relationship presents a number of challenges about which people need to be aware.  These challenges vary from state to state but tend to be uniform in the federal context (IRS, social security, veteran’s benefits).  The legal challenges stem from the fact that (unless there is marriage, civil union or in Colorado – a designated beneficiaries agreement) the couple are legal strangers to each other, with limited or to-be-determined rights regarding the other or their relationship.

Some financial difficulties include:

1. You have to file your taxes as head of your household, or as a single individual.

2. The state you live in may not provide a divorce-like (palimony or settlement) procedure that gives you your equitable share of assets.

3. You and your partner do not get each other’s Social Security benefits.

4. You may have to sell your house to get long term care benefits under Medicaid. (This is changing, read  this for more information.)

5. You must designate your partner as the person to make your decisions if that is what you would like to see happen (by using a medical or financial power of attorney). Otherwise, the state you live in may default to a blood relative to make those decisions.  See this news release from the CMS website regarding Medicare’s enforcement of equal visitation.

6. You will want to carefully consider creating a will to get around your state’s intestacy laws in the event they do not recognize your union.  Keep in mind that Colorado is one of ten states that recognizes common law marriage, and unmarried couples can execute a designated beneficiaries agreement

7. You are not eligible to receive the transfer of your partner’s exemption like married couples are.

For more information about the financial difficulties, check out Erik Carter’s article “In a Nontraditional Relationship? Beware These 7 Financial Pitfalls,” in Forbes.

The lack of legal and financial protections apply to same sex couples along with unmarried couples who could otherwise get married but have chosen not to get married.  Keep in mind that your relationship may seem like a marital one, but just because you behave the same way as a married couple, the law will not treat your relationship with as a marital relationship.  It’s best to know these things up front and not be surprised by them!

Denver’s Senior Law Day is Coming Soon!

The 2012 Senior Law Day will be held in Denver on Saturday, July 28, 2012 from 7:00 a.m. to 1:00 p.m. at the Denver Merchandise Mart.  This annual event is put on by the Colorado Bar Association (CBA) and is co-sponsored by the Elder Law and Trusts & Estates Sections of the CBA, along with CBA Continuing Legal Education.

You can register for the Denver Senior Law day here.

This annual educational seminar presents a number of diverse programs relevant for seniors in Colorado.   Attendees will get important and useful information on many issues facing our growing senior citizen population. If you are a senior, an adult child with a senior parent, or a caregiver, this is one day you cannot afford to miss!

Workshop topics include:

•             Aging in Place – Maintaining Your Independence at Home

•             Adult Protection and Elder Abuse

•             Assisted Living and Nursing Home Issues

•             Avoiding Court and the Legal System:  Mediation and Conflict Resolution

•             Consumer and Investment Fraud Prevention

•             Dealing with Trusts & Trustees

•             DNR Orders, Advance Directives, and End of Life Issues

•             Estate Planning: Wills, Trusts & Your Property

•             Disposition of Final Remains

•             Hanging Up the Car Keys for Good

•             Hospice, Palliative Care, and Other End of Life Issues

•             Illness and Death of a Significant Other

•             Lifelong Learning and the Aging Brain

•             Planning For Your Pets

•             Powers of Attorney , Guardianship & Conservatorship

•             Long-Term Care Insurance

•             Medicaid

•             Medicare 101

•             Trust Planning for Individuals with Disabilities on Public Benefits

•             Reverse Mortgages

•             Social Security

•             Taking Care of Your Pets and Pets Taking Care of You

•             The Basics: Memory Loss, Dementia and Alzheimer’s

•             VA Benefits

•             What to Do When Someone Dies

•             The Village Movement and Your Community: Neighbors Helping Neighbors to Age in Place

 

Like many of my estate and elder law attorney colleagues, I am proud to be a legal sponsor of this worthwhile event.  If you can’t attend the Denver Senior Law Day, there are other opportunities:

In Boulder County (Longmont) on Saturday, August 11- register here

In Larimer County (Fort Collins) on Saturday, August 11- register here

If you can’t make it to a Senior Law Day but are interested in looking at the 2012 Senior Law Handbook, chock full of 33 Chapters (many on new topics including . . . Facebook!) click here

Don’t forget that the CBA website at www.cobar.org has lots of helpful information for the public. Check it out!

 

Gratitude and Living Your Legacy Now

photo by snowpeak

I guess I would say, as I have before in a blogpost tribute to a friend who died not long ago  that death can be a very powerful teacher for the rest of us who are still living.  What do our lives mean?  Does meaning matter in our lives?  Each of us answers that question in our own way.  I would like to defer to an expert here – Rabbi Abraham Joshua Heschel l who discusses this in the article “What Death Should Teach Us About Life and Living.”  One of the themes raised in Rabbi Heschel’s article is looking at death as gratitude for existence – how do we cultivate “heaven on earth?” He suggests that

the meaning of existence is to reconcile liberty with service, the passing with the lasting, to weave the threads of temporality into the fabric of eternity.  The deepest wisdom man can attain is to know that his destiny is to aid, to serve. We have to conquer in order to succumb; we have to acquire in order to give away; we have to triumph in order to be overwhelmed. Man has to understand in order to believe, to know in order to accept. The aspiration is to obtain; the perfection is to dispense. This is the meaning of death: the ultimate self-dedication to the divine. Death so understood will not be distorted by the craving for immortality, for this act of giving away is reciprocity on man’s part for God’s gift of life. For the pious man it is a privilege to die.

Now that we are all here, in the present – what does “today” mean to you? This Ted video is breathtaking, it has Louie Schwartzberg’s  time lapse photography of flowers, clouds and a story as well.  The story is about how we answer the question: What is a good day? His suggestion is to open your heart to all the gifts of life that this world is right now, go out and see them, let the gifts flow through you and bless others with your smile of gratitude and the presence of your open heart.  Watch it here 

I thank Joan Therese for sending this link to me.  The most exquisite pearl from this necklace?  Learn to respond as if today was both the first day and the very last day of your life.  Willa Cather’s quote comes to mind here: “I shall not die of a cold.  I shall die of having lived.”  If we die of having lived, can we not choose what to value, what to hold dear? An Albert Schweitzer quote comes to mind: “the tragedy of life is what dies inside a man while he lives.”

So  – how is it that we can live now, so that when our time comes (or we are with our dear ones and it is their time to leave) we can gracefully look back and say our farewells?  “We’re all here to do what we’re all here to do.”  The Matrix Reloaded 2003.  Each of us must discover that for ourselves.  This usually isn’t easy and it can take some time, but don’t wait until retirement to start this exercise – start small and do a little bit every day.  A little bit of what exactly?

Gratitude

Did you know that gratitude is the only “get rich quick scheme that really works?”  That’s a quote of Ben Stein’s from the book “Thanks” by Robert Emmons.  This gratitude thing is also a two-way street, according to Zig Ziglar: “the more you recognize and express gratitude for the things you have, the more things you will have to express gratitude for.”

And speaking of being grateful for each day, here is a beautiful video about Lou Cunningham about her experience with coming to grips with her impending death and her experience with hospice. Watch it here   I particularly liked her portrayal of hospice nurses and support staff as midwives to the dying.  This is a term I have used before and I think it is very appropriate.  My favorite quote that she shared was from Ralph Waldo Emerson “all I have seen teaches me to trust the creator for all I have not seen.”  Acceptance of how things are often involves trust – trusting in the face of our uncertain future.

I couldn’t write this kind of a post without quoting Dr.Seuss!  “Don’t cry because it’s over, smile because it happened.”

Kindness

This issue of the Health Care Chaplaincy e-newsletter is about compassionate end of life care for all patients and features bioethicist Stephen Post, Ph.D., author of The Hidden Gifts of Helping: How the Power of Giving, Compassion, and Hope Can Get Us Through Hard Times,   which is about the transformative power of doing good (transformative for the doer).  I wouldn’t want to leave out another favorite quote about gratitude – G.K. Chesterton’s “act with kindness, but do not expect gratitude.”

Being With Nature

Along the theme of being in nature and cultivating the sense of wonder and gratitude as Schwartzberg’s Ted video, I found this recent article in Scientific American intriguing “How Hospital Gardens Help Patients Heal

I’ll add more to this list in coming posts. . .  So if you really want to get hands-on with this kind of thing, like I suggested in an earlier post Write Your Own Obituary,  you may want to read Carolyn McClanahan’s 3/23/12 article in Forbes Magazine, the last of a four part series on end of life planning.    What she has to say about three funerals she went to in a short space of time is instructive: if you have an illness which allows you to plan for your funeral and service or celebration of life following your passing, do the planning to ensure it is something that will be part of the final chapter, a closing to your book of life, that only you can write.  May we all be able to live our lives “on purpose” and find the courage to ask, to be, and to reach out into community.

©Barbara Cashman, LLC  www.DenverElderLaw.org

Can I Promote Family Harmony With My Estate Plan?

The short answer to this question is of course yes, but it may take some careful thought.   For most of us, our family is the most important thing in our lives – the most valuable asset, so what can be done to protect relationships in an estate plan?  Sometimes conflict can be prevented through merely providing clear instructions to the right people, and in other contexts – it is much more complicated than that.  We have come a long way since the “in terrorem” or “no contest” clause was a standard feature of wills, and many practitioners are of the opinion that the “no contest” clause – which purports to penalizes a challenger of a will – leaves the testator (person writing the will) with a false sense of security that the clause will prevent a lawsuit.

So what if your family perhaps doesn’t resemble the 1950’s TV family?  Most families today certainly don’t.   The AARP Magazine recently (April/May 2012) had an article about parent-child estrangements.    It features an interview with California psychologist Joshua Coleman, Ph.D. who recommends the following tips for healing a serious estrangement with your adult child:

  1. Own up to the conflict and take responsibility for mistakes you have made.
  2. Accept a contrary view and don’t try to prove them wrong (use empathic listening).
  3. Don’t try to make your child feel sorry for what they’ve done, this is likely to escalate resentment.
  4. Hear them out – ask questions and really listen attentively, not defensively.
  5. Don’t give up too soon, you may need to reach out long before the healing can begin.
  6. Avoid giving criticism or unsolicited advice.

Each of us is free to walk away from difficult or unfulfilling relationships, the article observes, but it also poses a more complicated follow-up question – what are we sacrificing for that freedom to walk away?

As parents live longer, adult children may struggle with the how and when of becoming an adult in their relationship with a parent, and for some that may never happen.  Many of our sibling relationships may get stuck in a particular time and not progress beyond into the present.  If siblings presuppose equal shares, then it’s a good idea to think about fairly typical scenarios in today’s world: what if one sibling is well off and another is struggling financially? How do you treat an adult child who has been the primary caregiver for a frail or ailing parent?  The best thing to start with, as Jane Bryant Quinn observed – is a conversation with children ahead of time about what you’re doing and why.  She quotes a New Hampshire estate planner who states “the greatest mistake I’ve seen in my practice comes when children have neither been apprised of a parent’s intentions nor been invited to participate in the decision-making process.”  Clients are of course free to not speak to their children, and some of my colleagues advise against it and tend to value more highly the privacy interest of the client making the will.  This is fine, but people making an estate plan need to know the potential cost for such silence.

Inheritance anxiety can also escalate where a surviving parent remarries.  Calling this a “blended family,” when the children are all adults may be a bit of a stretch.   Keep in mind that the assumption of inheritance among children may complicate their expectation of money with love, so meaningful communication (in whichever form works for the client) is strongly advised.

Finally, I’ll refer to a June 10, 2012, Denver Post article by Kirk Mitchell  which was about a suspected double murder-suicide in southwestern Colorado that may have been committed by a very resentful son who was not left ranch property from his mother.  For better or for worse, children expect inherit their parents’ property and siblings expect equal distribution.  There are many ways to soften the sting of unequal distribution.

It’s best to consider some basic aspects of human nature when you’re making an estate plan, along with the value of family relationships.  Another good idea is to address personal property – items that may have high emotional value like inherited jewelry and other personal items, things with sentimental value – in a separate memorandum (this is a nice feature of Colorado law) referred to in the will.  I often advise clients to share their stories about such items with their family members while they are still living, and in some circumstances –  if the client is so inclined – to give away these items to the intended recipients.  The bottom line – it is best to try and live in and honor those treasured relationships now so they remain the biggest part of your legacy.

©Barbara Cashman, LLC  www.DenverElderLaw.org

Will I Have to Pay for my Elderly Parent’s Nursing Home Care?

Filial Responsibility:  Requiring adult children to pay for parent’s care

This is a guest post by my friend and elder law colleague, Ayo Labode.

Filial –  filial |ˈfilēəl; ˈfilyəl| Adjective, of or due from a son or daughter : a display of filial affection. 

“Filial responsibility” in this context refers to legislation in thirty states that establish a duty for adult (nonindigent) children to care for their elderly parents.  These statutes derive from the England’s Elizabethan Poor Relief Act of 1601.  Under the poor laws relatives were the primary source of support for family members although limited public assistance was available for those unable to support themselves or their relatives.  Modern filial responsibility laws are based on the reciprocal contract theory:  one has a moral responsibility to support one’s parents because the parents reared and provided for him or her as a child.  Proponents argue that these laws foster family harmony and promote the Biblical  Commandment of honoring one’s mother and father.  However, consistent with the reciprocity theory, if a parent failed to support the child as a minor, the adult child is not responsible for the parent’s health care bills.

In May 2012, a Pennsylvania Court of Appeals affirmed a trial court’s decision holding John Pittas liable for his mother’s $93,000 nursing home bill under Pennsylvania’s Filial Responsibility’ Law.  Health Care & Retirement Corporation of America v. Pittas (Pa. Super. Ct., No. 536 EDA 2011, May 7, 2012).

Here’s an overview of the facts of the case:  Mr. Pittas’ mother sustained injuries after a car accident.  After completing her rehabilitation she was transferred to Liberty Nursing and Rehabilitation Center where she lived for five months before relocating permanently to Greece.  She left behind an unpaid bill of $93,000.  Although she had applied for Medicaid, the application was pending at the time of the appeal.  The nursing home sued Mr. Pittas for the unpaid balance under Pennsylvania’s Filial Responsibility Law.  You can read a Forbes article about the case here.

Pennsylvania is one of 30 states with statutes that hold an adult child liable for the medical bills of the parents. The Pennsylvania statute provides a few exceptions to the filial responsibility:  (1) the adult child does not have sufficient financial ability to support the parent or (2) adult child was abandoned for a period of ten years while a minor by the parent in question.  23 Pa.C.S.A. § 4603.

Colorado is one of 20 states that does not have a filial responsibility statute.  In 1987 the Colorado Supreme Court held that “a child has neither a common law nor a statutorily imposed duty to support his or her parents.”  In re the Marriage of Serdinsky, 740 P.2d 521 (Colo. 1987).

Proponents of enactment and enforcement of filial responsibility laws view these laws as a way to address the increasing demand for Medicaid to pay for long –term care.  According to MetLife’s annual survey of long-term care costs, in 2011 the average daily rate for nursing homes in Colorado is $207/day for a semi-private room.  That is almost $76,000/year.  As a point of reference, in 2010 the average social security recipient received $1,176/month or $14,000/year.   The Pittas case is not an anomaly.  In 2008, a Pennsylvania court held a man responsible for his mother $8,000 nursing home bill even though he was out of work and deeply indebt.  To complicate matters, the mother had the ability to pay the nursing home through her pensions and social security payment, but simply refused to do so.   Because the mother’s sources of income cannot be garnished, the nursing home sought and received a judgment against the son.

Some family law practitioners compare the current state of filial responsibility laws to that of child support statutes that targeted fathers who failed to pay child support – the so-called “deadbeat dad.”  In an oft-cited 2002 article in the ABA Family Law Quarterly, a family law practitioner suggests that the federal government should create incentives for states to create filial responsibility laws and mechanisms for effective enforcement across state lines. This argument has led supporters of filial responsibility laws to compare adult children to deadbeat parents who fail to provide child support.

This comparison, and the idea of “deadbeat children” is a misleading and erroneous simplification of the issues at stake. There are several major distinctions between “deadbeat children” and “deadbeat parents.” First, adults make the decision to have children and therefore have a responsibility to provide for their well-being.  However a child was not consulted regarding the selection of his parents or to determine if they will be spendthrifts or penny-pinchers.  Second, the sheer cost of long-term care can easily overwhelm most families, and filial responsibility laws may render adult children destitute. Third, the type of care adults need as we age can be physically and mentally demanding.  For example, it is not uncommon for an adult with advance dementia to become physically aggressive, incontinent and wander away from the home.  Retirement-aged adults may not have the ability to provide the necessary care and oversight. Finally, over a long lifetime, relationships can become messy.  We would all like to think of loving parent-child relationships built on mutual responsibility and respect.  However, we know that many families drift apart for a myriad of reasons: differences in lifestyles, choice in religion, alcohol and drug abuse or worse. These laws would make children responsible for parents even when the bonds of trust and care have been broken.

As we live longer, lawmakers will continue to explore ways to pay for the increasing care needs.  Filial Responsibility laws are seen by some as a possible “solution” to pay for the care we need as we age. Yet many people are unaware that they could be held responsible not only for their debts, but for those of their parents.

Ayo Labode is the principal of The Law Office of Ayo Labode, LLC, in Denver.  Her practice is concentrated in the area of elder law, estate planning, wills, probate, guardianships and conservatorships.  Prior to starting her own law firm, Ayo worked for almost five years as an ombudsman, an advocate of for nursing home residents.  She was responsible for investigating complaints from nursing home residents and their families about nursing home care and violations of resident rights.  Ayo has also written chapters for the Colorado Handbook of Elder Law about assisted living residence and nursing home admissions contracts and the Senior Law Handbook about selecting an appropriate nursing home or assisted living residence.   You can reach Ayo at www.LabodeLaw.com

Drawbacks of the Do-it-Yourself Estate Plan

I was inspired to write this post by Brenda Speer, a solo colleague and fellow blogger in Colorado Springs who practices intellectual property law.  Read her post “The Perils of DIY Legal” here.   I agree with Brenda about not doing things yourself – even if you think you can and it will save you some money.   I’ve had the opportunity to be my own counsel a couple times in the last few years, and I have declined representation both times!  DIY for lawyers can also be problematic! Check out “Train Wrecks of Estate Planning” here.  This article highlights what happened to U.S. Supreme Court Chief Justice Burger’s will .

According to a recent article, “Half of Americans with Kids Set to Die Without a Will,”  but what surprised me was that it was estimated at only 50%, which I thought might have been higher (remember it’s an estimate).  Is this a conscious or unconscious decision on people’s parts?  As a parent, I think it is more of a conscious decision to not have some plan in place in the event something happens to you or you die (yes, unexpectedly).  So that of course brings us to the next question – if you choose not to make a will, do you know how the law of intestacy in Colorado works to divide your estate?  Hmm. . . .

How Hard Can It Be To Write a Will – Can’t I Do it Myself?

Okay, you decide to write a will.  Do you know what you don’t know?  I liked Bernard Krooks’ article “Is Do-It Yourself Estate Planning a Valid Option?” in Forbes.  He makes the observation that there is no book Home Surgery for Dummies and that some things are better left to the professionals.

How can you sort through the information you find on the internet?  It’s just a form right? I know I’ve filled out the wrong form before, thinking it was the right one . . . and people doing DIY estate planning can do the same thing.  What the forms available through Nolo and LegalZoom don’t do is ask any questions about YOUR situation.  Isn’t that why you want a will, power of attorney, or other legal document in the first place?  Otherwise you can leave it up to the “wait and see” approach that so many people take, and hope that there isn’t a really terrible mess to clean up (legal, financial or emotional) afterward.  I also liked this article.

If you use a legal document service – how do you know which document is right for you and whether the form  is consistent with Colorado law?  The only way to get an appropriate and up-to-date form, reflective of current state law, is to hire an attorney who is familiar with the field of law and current legal developments.  Each state has its own probate code and case law, and whether you are concerned with disability planning (powers of attorney, living trusts) or estate planning (wills, testamentary trusts), the law of the state in which you reside is specific and unique.  Document assembly services don’t explain this to people because they might expect you to already know that!  Your best defense is to be a well-informed consumer.

So here are four pointers to keep in mind –

      1. It’s too easy to make mistakes if you don’t know what you’re doing
      2. No legal advice is given with document services – so you don’t know whether you’re getting the right documents with the correct language
      3. State laws applicable to powers of attorney, estate planning and estate administration are unique to the particular state and they are subject to change
      4. Correcting mistakes can be expensive – sometimes the “inexpensive” forms can lead to results that are costly

What if I already have a will and just want to change it myself – how hard can that be? Well, Robert Fleming’s article “don’t try this at home” has a good cautionary tale about the importance of amending your will (the legal term is “codicil”) so that it is done correctly and will be upheld.

Keep in mind as well that it is often legal issues that are bound with financial, medical and emotional issues as well – as modern disability (life or longevity) and estate planning involves other people, relying on others to help make decisions in the event of incapacity.

Why is this such a big deal? In Colorado, attorneys are not allowed to say we “specialize” in elder or estate law because Colorado does not have certifications that many others states use.  If you are looking for an attorney who has a lot of experience in the field of estate and elder law, do your research and look for someone who “focuses” their practice in this area.  Elder law is in many respects a general practice field that is made specific by the client served.  There are many legal issues that our legal system and our society have not faced before because we have never had this many 80 and 90 year olds on the face of the planet!

So – tell me again – why talk to an attorney? 

Consulting with an attorney has the benefit of talking with an actual human.  I am not simply a purveyor of legal documents, I’m not a legal document preparation service –  I’m a person with a law license and years of experience.  I may not be able to compete with the legal form generating websites on price, but that’s because I offer something different: I am licensed to practice law in Colorado, and I spend time talking with clients to find out what their concerns and unique situations are so that I can recommend a strategy, including the preparation of legal documents, that fits their needs.   I suggest that before deciding that a document preparation service is the less expensive alternative, a person should look into what it is they are getting, and what they are not getting.  . . . And be sure to call an attorney to see what they have to offer.

©Barbara Cashman, LLC  www.DenverElderLaw.org

On Grief and Food: Why Feeding Your Hunger Heals Your Heart

This is a guest post by Michele Morris, a local food aficionado and food blogger I know.

I recently attended the funeral of a dear friend – she was young, only 60, taken much too early by a rare form of cancer. I was asked to speak at the service on behalf of a small group of women who traveled together each year, and although I held myself together for that short tribute to her, I nearly collapsed from grief watching her parents pass her casket on the way out of the service.

After pulling myself together in the bathroom with some others (I felt I needed to be the strong one – although I had lost a friend, my good friend had lost her beloved sister, and her parents had lost a child), I went to join the others in the church for a reception. In the south, the “church ladies” pull together food for funerals, and as you might guess, this was a veritable smorgasbord of comfort foods: fried chicken, biscuits and gravy, mashed potatoes with heavy cream and butter, ribs, and dessert – well don’t even get me started about the pastries!

For a moment I thought I was going to be sick staring at the long tables of steaming food lined up, but then I found myself in line along with every other grieving person at the funeral. In fact, I lined up not once, but definitely went back for seconds and possibly even thirds. What is it about grief that inspires us to cook for each other and how is it that when we feel most crushed that we find a way to eat?

At its very core, cooking for someone is a way to nurture them. As babies, unable to feed ourselves, we are fed by our mothers. As children growing up we are fed by friends and family. And as adults, we feed ourselves along with our own friends and families. If someone has a surgery, we make them food. If a new baby arrives, we bring the family a casserole. When we celebrate our kids’ sporting events, we assign roles for snacks. Feeding someone is a way of meeting one of the most basic of human needs. For the person in grief who is being fed, it offers comfort. When you hurt and someone takes care of you, you feel loved, you feel protected, and you feel cared for.

When life is normal, most of us are able to provide this care for ourselves – we can feed ourselves and our families without the help of those around us. But during a time of grief, it’s a huge relief – and a gift also – to have someone else take on this role for us. It allows us the opportunity to just grieve, knowing we’ll be cared for.

As for the foods that are prepared, is it any surprise that comfort foods often top the list? That’s because they are exactly that: comfort foods. They comfort because they are familiar and they often remind us of our childhoods. But that’s not their only trait. Many times they are foods that actually help the brain release endorphins. You aren’t just weak in willpower when you sit down and can’t stop snacking on a bag of potato chips. Carbohydrates (which include sugar), fat and a compound found in chocolate all stimulate the release of endorphins, which trigger a pleasure response. While you may not feel downright joyous at a funeral when you eat those mashed potatoes loaded with butter, you probably do feel just a little bit better.

So for all of you “church ladies” and other friends who have brought food to families in crisis or cooked for the mourners at a funeral, thanks for taking care of people when they most needed it. Your caring – and your cooking – absolutely does make a difference.

Michele Morris is the owner of Cooking with Michele, providing private cooking classes, food and wine dinners, and small event catering. She is the author of both a food blog and a travel blog (cookingwithmichele.com) and has written for numerous regional publications. Her first cookbook will be released in the spring of 2013 and on any given day she can usually be found cooking for someone.  You can email her at michele@cookingwithmichele.com  and find her blog with lots more great recipes at her website. www.cookingwithmichele.com

Did all those comfort food references leave you with a hankering for those potatoes pictured above? Check out Michele’s recipe below:

Buttermilk Smashed Potatoes with Garlic Chives  

Serves 4

 1 to 1 1/4 pounds Yukon Gold potatoes

1/2 cup low-fat buttermilk (or cream or half and half)

4 tablespoons butter

2 tablespoons minced garlic (or regular) chives

Salt and pepper, to taste

 Clean the potatoes under cold water then cut into 1 inch cubes. Add to a pot of cold water and bring to a boil. Cook until potatoes are tender, about 15 minutes. Carefully drain. Return cooked potatoes to the pot and add buttermilk and butter and use a potato masher to smash them together, combining the buttermilk and butter as you do so. Stir in the chives and season with salt and pepper to taste.

 Note:  I like to keep the skin on the potatoes because it’s filled with vitamins and adds fiber to your food which is good for you, but if you don’t like it, you can peel your potatoes first.