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

Siennese Sculpture

Siennese Sculpture

 

This is the second post on the topic of elder financial abuse and abuse of a power of attorney by an agent.  Read the first post here.   In the background here is the bigger question about how we can think about how we want manage our longevity and plan for incapacity, but let’s face it . . . .  many of us would prefer to not think about it at all, so avoidance is a common response to this question!  This looming prospect of diminishing capacity is of course is a phenomenon that will affect us in increasing numbers as the baby boomer cohort continues to grow older.  For a bit of background about the “job description” of an agent under a general (financial) POA in Colorado, you can read the Colorado Bar Association’s brochure entitled “So Now You Are an Agent Under a Financial Power of Attorney here.

As the saying goes, an ounce of prevention is worth a pound of cure – and it is particularly applicable to the task of naming the right person as agent in a POA.  Fortunately, there are plenty of resources about the prevention aspect.  The American Bar Association, through its Commission on Law and Aging, has lots of helpful information relating to durable power of attorney abuse and other financial exploitation topics, as well as materials relating to the legal issues involving elder abuse and resources for law enforcement and lawyers is available here.

Let’s start small with the two examples I described in the previous post: So what might this kind of POA abuse or exploitation look like?  Often the elder 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 him or herself (not as agent)?  What I have seen on more than a couple occasions is an agent use a quitclaim deed to accomplish this type of transfer.  One was for supposed “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.

What can an elder law attorney do to assist in these types of scenarios?

Individual concerns vary widely and an elder may be interested in preserving some sense of family harmony and so the initial gestures to correct a problem don’t always need to be big and bold.  People don’t usually want to start with the nuclear option, but it is important to identify a strategy that will identify the “what if’s” in the event the agent doesn’t take the opportunity given to them to fix the problem and do right by their parent.  In the quitclaim transfers described above, a letter from an attorney (me) was enough motivation to get the situation fixed and they were both successfully resolved with no legal proceedings.  These situations were remedied by the transfers being “undone” by the agents.  In the first example, the POA was revoked and replaced with another POA.  This is often not so simple however, as a recalcitrant agent may often refuse to stop or cooperate and so legal proceedings must be instituted.

What else can an elder principal do about shutting down a “rogue agent?”

Back to the prevention theme:  Stay engaged with others!  While many of us Americans love to be independent, it is better for our overall health to be part of a community.  Remember that social isolation of elders can sometimes lead to situations where an elder can easily be taken advantage of by ill-intentioned people.  Read more about elders and social engagement here.  In my experience, neighbors can be very helpful in this regard, to keep a watchful eye on the elder and the elder’s emotional well-being and engagement with others.

Okay, to stay on today’s topic here, let’s take a look finally at some of the legal action that can be taken to remedy and rectify a situation created by a misbehaving agent.

There are a number of legal and equitable actions and remedies available to a principal who has been damaged by their agent.  Remember that the agent works for the principal and the agent is a “fiduciary” of the principal, which means the agent must act with the highest degree of good faith on behalf of the principal.

In a situation where the agent is behaving badly, there are a number of actions which the principal can consider.  The POA statute and the probate code allow for a number of proceedings in these kinds of circumstances, including: removal of the agent; filing a petition to review agent’s action; and an action for breach of fiduciary duty.  Equitable remedies (as distinguished from legal remedies) would include petition for surcharge (which might include lost income and recovery of attorney’s fees) and imposition of a constructive trust.  Another type of proceeding against the agent would be tort actions – including fraud, misrepresentation and conversion.

Here’s a law review article that provides a good overview of many of the legal and equitable actions and remedies which might be pursued.

That’s all for this second installment.  In the third and final installment on this them I will be looking at the similarities between elder financial exploitation and abuse and domestic violence, as they share many similar behaviors.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

Vulnerable Elders and the Slayer Statute part 2

Concrete Windows of Chalk

Concrete Windows of Chalk

This is the second installment on this topic.  In the first post, I gave an overview of vulnerable elders and the criminal nature of elder abuse and exploitation laws and also the civil remedial law background of the slayer statute.  Why is Physician Assisted Death (PAD) mentioned in the title?  Because the now-dead bill in the Colorado legislature had NO reporting requirements, which I thought was a very bad idea that could give predators of frail and ill elders in Colorado a bit too much cover for their misdeeds!  In this continuation on the topic of vulnerable elders and the slayer statute, I look at some of the state laws that have broadened their slayer statutes to include elder abuse.

Elder Abuse Laws Can Be Both Criminal and Civil in Nature and State or Federal

In this post, the focus I use on elder abuse as primarily criminal in nature, meaning there are criminal penalties upon conviction and these of course vary from state to state.  The Elder Justice Act of 2009, as part of the Affordable Care Act, coordinated actions to combat elder abuse across the federal government.  My overview today will be confined to looking at state statutes, not federal legislation.  The inclusion of elder abuse in a slayer statute expands the scope of who can be disinherited.  Keep in mind there are a wide range of civil remedies which may be available to an abused elder.

The Abuser/Slayer Statutes Cover a Diverse Variety of Abuse

As I wrote in a previous post, Washington is one of eight states that have broadened slayer rules to apply in some form to abusers of elders. The other seven states that have expanded their disinheritance laws to preclude abusers from inheriting from their victims are Arizona, Oregon, California, Illinois, Kentucky, Maryland, and Michigan.  State statutes vary as to the type of abuse that triggers application of the law.

In contrast with Washington, which expanded its slayer law to include only financial abuse, some jurisdictions have amended their laws to also include physical, sexual, and psychological abuse. In addition, states differ as to whether a criminal conviction of abuse is necessary to trigger application of the rule as well as whether the rules can be applied retroactively.

Arizona and Maryland have also expanded their disinheritance and slayer rules to disqualify persons on the basis of financial exploitation of vulnerable adults. For example, in Arizona, the statute reads:

A person who is in a position of trust and confidence to a vulnerable adult shall use the vulnerable adult’s assets solely for the benefit of the vulnerable adult and not for the benefit of the person who is in the position of trust and confidence to the vulnerable adult or the person’s relatives. Ariz. Rev. Stat. Ann. § 46-456 (2014).

Maryland’s statute has similar wording: [A] person may not knowingly and willfully obtain by deception, intimidation, or undue influence the property of an individual that the person knows or reasonably should know is at least 68 years old [or a vulnerable adult] with intent to deprive the individual of the individual’s property.  Md. Code Ann. Crim. Law § 8-801(e) (2011).

These statutes do not include physical, sexual, or psychological abuse as triggers for application of the slayer and abuser law.  The Arizona law requires the abuser to be in a position of “trust and confidence.”  This trust and confidence, or “confidential relationship” as it is often called in the law, contributes to the vulnerability of the person abused or slain.  The Restatement [Third] of the Law of Restitution and Unjust Enrichment devotes §43 to a discussion of fiduciary (as in agent under a power of attorney, etc.) or confidential relationship.  Interestingly, the Arizona law does not appear to encompass situations where a would-be beneficiary lacks a fiduciary or confidential relationship to the vulnerable adult.

Some other states that have expanded their slayer or disinheritance laws to include abuser provisions (California, Illinois, Kentucky, Michigan, and Oregon) have amended their laws to apply to physical abuse and neglect in addition to financial exploitation. In Oregon, an “abuser” is defined as “a person who is convicted of a felony by reason of conduct that constitutes physical abuse … or financial abuse.”   The requirement of a felony conviction is substantial.  California’s statute uses a broader definition of abuse that includes physical abuse, neglect, false imprisonment, or financial abuse of an elderly or dependent adult.  See Cal. Prob. Code, § 259 (2012).  There are many variations on the elder abuser and slayer combinations of statutory relief!

Other than Washington, California is the only state with slayer and abuser laws that do not require criminal conviction related to abuse of the decedent as a triggering event for application of the disinheritance abuse rules.  This is more closely in keeping with the regime of the slayer statute, of civil relief that is afforded, like in Colorado’s statute, as a result of a criminal conviction or civil court’s determination that the elements of a qualifying crime have been met so as to bring the resulting death under the purview of the statute.

The California law is triggered if the would-be heir is convicted of abuse under the state’s penal code, or the abuse (in addition to such factors as whether the decedent was a vulnerable adult) is proved in a civil court by clear and convincing evidence. In Arizona, Illinois, Kentucky, Maryland, Michigan, and Oregon, criminal conviction related to the abuse of the decedent by the heir is required.

By way of illustration, the Michigan statute provides: A judgment of conviction establishing criminal accountability for the … abuse, neglect, or exploitation of the decedent conclusively establishes the convicted individual as the decedent’s killer or as a felon.  See Mich. Comp. Laws Ann. § 700.2803 (2012).   It also provides for an alternative civil determination that an individual is a slayer under the slayer and abuser Civil, not criminal) rules. This judgment is achieved when a preponderance of the evidence provided in civil court proves that the would-be heir feloniously and intentionally killed the decedent. The statute is devoid of any civil-standard alternative for persons accused of abusing the decedent. The Michigan statute specifically calls for a felony conviction related to abuse; presumably, then, a finding or plea for a misdemeanor-level crime would not trigger the disinheritance provision. The plain language of some of the other statutes as to the degree of criminal culpability is not as clear.

There Is a Wide Range of State Laws by Which Criminal Acts and Some Civil Actions Form the Basis for Disinheritance as Part of an Abuser/Slayer Law  

Similar to Washington law, some states have drafted rebuttable-presumption clauses in their abuse disinheritance laws to negate the disqualification of an abuser from inheriting from a decedent. The California code negates the disqualification of an abuser if the alleged abuser proves that the vulnerable adult “was substantially able to manage his or her financial resources and to resist fraud or undue influence” subsequent to the alleged abuse.  This presumes that the person making the will (testator),  knew of the abuse and had the capacity to change the estate plan but nonetheless elected to allow the abuser to inherit.

As I noted in the first post, the roots of the modern slayer statute are ancient in origin.  The slayer statute is part of a state’s civil law as it is not criminal in nature.  Keep in mind that one of the major distinctions between criminal and civil law is the what is at stake for the defendant: the criminal penalty may involve imprisonment, fines, etc., as they are offenses against the state; while the civil matter involves money and sometimes specific actions.  The burden of proof is also different.  In criminal matters it is generally “beyond a reasonable doubt” while in civil matters it is typically a preponderance of the evidence (more likely than not) and sometimes by clear and convincing evidence.

Due to their remedial nature, slayer statutes have long been enmeshed with criminal law. Expanding slayer statutes to include disinheritance for different types of elder abuse similarly involves a careful look at how the range of criminal and civil laws relating to elder abuse will be effectively drawn into the disinheritance scheme of the slayer statute.  Colorado has no such law at the present time, nor is one being considered in the legislature.   If there is a PAD law that comes into effect – by either statute or ballot initiative – which contains no reporting requirements, then an abuser/slayer law might be a good idea.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

 

Vulnerable Elders and the Slayer Statute

Italian Stone Face

Italian Stone Face

A couple weeks back, I posted an update on the proposed End of Life Options Act, a bill in the Colorado legislature which has since died (presumably of natural causes).  There is concern that some version of the bill will make it onto a ballot to become law by other means.    For this reason, today’s post will go into a bit more detail about the concerns I raised about the implications of having no reporting requirements for such a law and concerns I have with regard to the safety of some vulnerable elders.

Vulnerable Elders

Colorado’s mandatory elder abuse reporting statute 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).  The only reputable (US Census based) internet fact I ran across about this population was for persons 65 and up, who in July 2014, were estimated to be 12.7% of the population of Colorado.

From a civil rights perspective, aspects of elder abuse prevention statutes can often seem paternalistic.   Much of the research that could be done on the subject is problematic because of ethical and methodological problems.  Collecting information about elder abuse may publicly expose cognitive, physical, mental and social vulnerabilities and the collection of such information could have negative implications in the form of legal, financial or social consequences for both the elders and caregivers and others who might participate as part of a study.  I mention this because the vast majority of elder adults are competent and retain capacity, at least in the eyes of the law.  The implication of these observations is that we really don’t have solid numbers about how many perpetrators and victims we are talking about.  As an elder law attorney, I can say that it is extremely difficult for an elder parent to call me (or adult protective services) to report abuse or exploitation being perpetrated by an adult child or family member of the elder.  Suffice it to say we don’t really know, and may never have a very firm handle on how many elders are affected as victims of exploitation and abuse.

When you couple this with the lack of any reporting requirement for a physician assisted death law, it would not be possible to track the numbers of vulnerable elders who might fall prey to an abuser’s or exploiter’s plan to hasten someone’s demise so that they might inherit something from the elder.  Enter the slayer statute.  Here’s an article about “disincentivizing” elder abuse.  Keep in mind that elder abuse statutes have criminal penalties.  There are of course distinguished from civil remedies, which can provide other types of relief.

The Slayer Statute – A Modern Law with Ancient Origins

If you’ve never heard of a slayer statute, you’re not alone! It’s both obscure and ancient.  Before there were any state “slayer statutes” there was the common law slayer rule.  Its origin hearkens back to the first known remedial law code in human history: the Code of Hammurabi.  The Code of the Babylonian king was inscribed on a stone pillar (called a stele) and installed in a public place.  It was a combination of legal principles and history.  Most of us are familiar with the axiom “an eye for an eye and a tooth for a tooth” as some precept of retributive law in the form of revenge as recompense for personal harm, but it is much more likely the expression has been badly misinterpreted and taken out of context.  It is probably much more closely aligned with other commentary in the code which describes the value of certain personal injuries in terms of repayment.  In short, it was a code of remedial law – akin to modern day worker’s compensation and tort law.

The principle from Hammurabi’s code is that “a killer cannot profit from his wrong.”  The common law rule, nullus commondum capere potest de injuria sua propria (no one can take advantage of his wrongdoing) forms the basis of the historical slayer rules and subsequent statutes, preventing slayers from inheriting from their victims.

Probably the most well-known case (from law school) to articulate a slayer rule is Riggs v. Palmer, 22 N.E. 188 (N.Y. 1889). In that case a grandfather had executed a will leaving small portions of his property to his children and the remainder to his grandson. The grandfather subsequently married and stated that he intended to change his will to include his wife. The unhappy grandson caused his grandfather’s death in an attempt to secure his portion of the estate.  The court held that grandson was disqualified from inheriting because of his action and relied on the grounds of moral equity to articulate a slayer rule in American jurisprudence.

Forty-seven states have slayer statutes. Colorado is a Uniform Probate Code state, among many other states which have adopted that version of the slayer statutes.  Colorado’s is codified at C.R.S §15-11-803 and contains both a criminal and civil provision for determining that a felonious killing has occurred such that a slayer/felonious killer is prevented from inheriting from the person whom they slew.

This post will be continued next week. . .

© 2016 Barbara Cashman  www.DenverElderLaw.org

Digital Assets – Coming Soon to a State Near You!

denver elder law

Cutout Constellation

 

Colorado may soon be getting some legislation in place concerning digital assets in the probate context! Today’s post will look at the benefits of having a digital assets clause in such estate planning documents as a general durable power of attorney or in a will.

Here’s the link to SB 16-88, which is a bipartisan bill entitled “Concerning the ‘Revised Uniform Fiduciary Access to Digital Assets Act,’” or RUFADAA for short.  The RUFADAA has been introduced in 29 different state legislatures so far.  I have already written several blog posts on this topic of “digital assets,” and my most recent one on the topic mentioned the revision of the uniform act by the Uniform Law Commissioners (ULC) last July.  If you’re looking for a bit of background on digital assets, read this post.

Of course I still don’t know for certain whether the RUFADAA will pass (still working at using my crystal ball successfully . . . ), but it seems like it will.  On Monday (2/22/16), it was introduced in the House and assigned to the Judiciary Committee.  The controversies which plagued its predecessor, the UFADAA, have largely been eliminated with the ULC’s RUFADAA.

So to begin, here’s a few helpful pointers.

  1. Specify and distinguish between assets and access

It’s not enough to simply generally describe online or digital assets in a POA or other estate planning document because there are important nuances and details which third parties, upon whose approval an agent acting for a principal must depend, which must be address.  The difference I’m talking about here is identified in the bill’s distinction set forth in §15-1-1502(9), which states a “designated recipient” means a person chosen by a user using an online too. To administer digital assets of the user,” and §15-1-1502 (10) “digital asset” means an electronic record in which an individual has a right or interest . . . .

Keep in mind that some internet service providers already provide their own online tools by which a user can designate individuals who are authorized to receive the content of a user’s account in the event it is inactive for a period of time determined by the internet service provider (ISP).  On Facebook, for example, this is known as a legacy contact.

In this circumstance described above, the fiduciary for a decedent estate (a/k/a the personal representative in Colorado) or an agent under a POA must contend first with the user/principal’s specific direction (if it exists) and to the extent that no designation was made by the user/principal, then the governing instrument (e.g., a POA) would control.  Finally, if there is neither a specific direction by a user/principal as to who shall have the power to access nor a POA or other governing instrument, then the standard term of service agreement controls.

  1. Recognize and give priority where applicable to “online tools”

This coordination of designations in an ISP’s online tools with, for example a POA, is an important undertaking for RUFADAA purposes.  If the user (be they a principal under a POA or the decedent in an estate administration proceeding) has already designated a person or persons to have access consistent with the ISP’s online tools, this will take precedence over the estate planning documents.  See the RUFADAA at §15-1-1504.  In this context, it would be a good idea for the user to ensure that the selected agent is not only just the agent for POA purposes but is also a designated recipient as identified above.

  1. Things are continually evolving!

Evolving was chosen over changing because it has a more positive gloss, doesn’t it? The change is ongoing.  These will keep estate planning and probate lawyers on our toes to advise client of developments affecting access with the use of online tools and also ensuring that a user’s selected fiduciary (agent, personal representative, etc.) will have access to the assets as intended by the user.

So – a scenario to avoid would be one in which the user designates one person to have access by naming them a designated recipient, but then (perhaps at some later date, unwittingly) names another and different person as (for example) agent under a POA.  This kind of a conflict will cause problems and should be avoided.  No, this online networked world we live in is not getting any simpler to manage!

© Barbara E. Cashman 2016   www.DenverElderLaw.org

More About Proposed Colorado End of Life Options Act

Italian Arch

Italian Arch

 

After my recent post about this bill in the legislature entitled the Colorado End-of-Life Options act, I was contacted by someone who was concerned that I had omitted some very important information about the proposed legislation.  I am posting further on this topic to provide more detail about the legislation and also to express my concern, as an elder law and probate attorney, about the particular implications of those important details – which I missed the first time around.

The bill contains no requirements regarding documentation and reporting of any of the processes described in the bill.

This is a big departure from the 2015 version of the bill – which contained provisions concerning reporting and documentation for the public health record (Colorado Department of Public Health and Environment) or the patient’s medical record.

Why is this a big deal?

Other states with similar legislation have documentation, reporting and review requirements.  This is for several good reasons, but the two with which I am concerned – protecting a vulnerable population of elders at risk of abuse safe from potential coercion and ensuring their consent to end their lives is one with consent given which is sufficiently sound and documented.  This reporting is to keep track of the many important details surrounding physician assisted death (PAD).  Without reporting requirements, there will be no way to know how the state’s PAD is working or not working.

Elders and vulnerable elders (as defined in Colorado’s mandatory reporting of elder abuse or exploitation law) have not generally been at the forefront of the PAD movement.  However, much of our death-denying and youth-glorifying culture is obsessed with the fear of losing one’s autonomy, losing control over one’s choice – and these fears factor substantially in the PAD debate.  As a civil rights issue, PAD focuses on self-determination and autonomy to allow for an individual’s decision to end one’s life with PAD.

My concern is that a population of elders could be coerced and exploited into ending a life prematurely and without documentation and reporting requirements for PAD, there would be no information to document many important details surrounding  a patient’s death with PAD.  I believe this situation could be used by someone looking to benefit themselves by a terminally ill elder’s PAD.  So what am I talking about . . . really?

In Colorado, we have a “slayer statute,” codified at Colo. Rev. Stat. § 15-11-803.  The statute generally prevents a slayer from profiting from their act of killing another.

Many exploiters of elders use tactics not unlike those of perpetrators of domestic violence.  These can include: isolating an elder from their loved ones or community members so as to make the elder dependent on the abuser; controlling basic life activities like provision of adequate nutrition, sleep deprivation or medication mismanagement; and devaluation of the elder’s dignity and personhood through words and action.

The state of Washington, which has a physician assisted death law as a result of a ballot initiative, also has a “slayer and abuser” statute, which is a rather unique combination.  The Washington slayer statute was amended to extend the slayer statute’s application to prevent financial abusers of vulnerable adults from acquiring property or any benefit from their victim’s estate.  This amendment was done during the pendency of a will/living trust challenge proceeding brought by the adult children of an elder against the elder parent’s surviving spouse, a second wife fifty years the decedent’s junior.  Here is the Washington Supreme Court’s en banc decision in In re: the Estate of James W. Haviland, which concerns this tragic exploitation.

The linking of slayer statutes and elder abuse laws is a relatively recent development.  One aspect of the link is the massive transfer of inherited wealth that has been underway for several years now.  The sad fact is, some folks simply don’t want to wait for the uncertain date when someone dies to inherit from the person.  In my line of work, these folks are referred to as “impatient heirs.”  The vast majority will not resort to violence to accomplish their goals, but it can be difficult to determine this in many circumstances.  Here’s a link to an abstract of a recent article on Expanding Slayer Statutes to Elder Abuse in the Journal of the American Academy of Psychiatry and the Law.

Why am I combining these two issues – the Slayer Statute as it relates to elder abuse and the lack of documentation and reporting requirements in the 2016 bill? 

I don’t think it is too far of a stretch that, if this “End of Life Options” bill were to become law and not provide for ANY record-keeping, documentation for either the individual’s medical record or for the public health record, that this lack of information and reporting could provide a potential avenue for death-hastening abuse of an at-risk elder, who happens to be terminally ill and whose health status otherwise falls under the purview of this bill.  The process described in the bill, devoid of any reporting requirements, opens up a vulnerable population to be exploited by an abuser such that the cause of death could be determined to have been at the terminally ill person’s own hand . . .

In short, I believe the Colorado bill’s lack of safeguards, which could otherwise serve to prevent coercion and consent, fall dangerously short as it relates to the population of elders.  For more information about other states’ existing laws, take a look at the Colorado Health Institute’s piece from January 2016 on this topic.

Here’s a recent and well-reasoned Denver Post article on this topic that focuses on the bill’s lack of requirements for oversight, documentation or enforcement.

This debate is also happening in other parts of the US where similar bills have been introduced.  Here’s a recent article about the assisted dying debate in Canada, where there is a new federal assisted dying law.  I will close for now, but will likely be writing posts to update this very controversial topic.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

The Colorado bill on Personal Rights of Protected Persons

Late Summer Blooms

Late Summer Blooms

 

Here’s another article about a bill making its way through the Colorado legislature.  If the title sounds obscure, it’s because it’s designed to address a rather tragic situation which infrequently occurs but has terrible repercussions.  A “protected person” in this context is a person known as a ward in a guardianship proceeding, one who is incapacitated and who has a guardian appointed to make decisions on the protected person’s behalf because they are unable to make decisions and otherwise manage their own affairs.

Here’s a link to the bill, SB 16-026.  The bill is more popularly known as the “Peter Falk” bill because it concerns the late actor’s daughter, Catherine Falk, and her efforts to promote legislation that would make it easier for children of protected persons (like those under a guardianship) to challenge the monopolization or limitation by a guardian upon access to the protected person by the protected person’s family members.  The tragic scenario in the Peter Falk case was that Peter Falk suffered from dementia in his final years and his wife, Catherine Falk’s stepmother, was estranged from Peter Falk’s daughter.  Falk’s wife prevented Falk’s daughter from visiting her father and so she took her battle – an expensive one – to court in California.  Catherine Falk later organized her own effort to ensure that this type of scenario would not happen again, not just in the state where her father resided, but she made it a nationwide effort.  Visit her website here, which shows the ten states whose legislatures are currently considering the legislation.

If you think this kind of scenario would only play out for a celebrity, well . . .  think again! A large proportion of us, particularly us baby boomers, are in second marriages or otherwise part of a blended family – with all of its particular and unique personal dynamics.  According to this study by the Pew Center, remarriage is on the rise for Americans aged 55 and older.

I do estate planning for many blended families.  While many of the shrinking number of “Ward and June Cleaver” families (long marriage, children in common) would not consider this type of scenario to be likely to occur, as the baby boomers and our core complicated familial arrangements get on in years and continue to change, the Peter Falk bill presents an opportunity to curb restrictions which a guardian may place on who may visit and interact with “their ward.”  I have a hunch that more of us in my line of work are likely to encounter this difficult and sad scenario.

As we continue to live longer and grapple with more encroachments on our capacity – in the form of dementia and other physical, cognitive and psychological challenges, we will likely confront these difficult issues more frequently.  The debate about limitations on guardianships – of rights retained by an incapacitated ward, as well as the limitations on the authority of the guardian – are difficult issues with which people and courts must certainly grapple.

I will close with an observation from a favorite poet.

The great secret of death, and perhaps its deepest connection with us is this:

In taking from us a being we have loved and venerated,

death does not wound us without, at the same time, lifting us

toward a more perfect understanding of this being and of ourselves.

—Rainer Maria Rilke, Letter to Countess Margot Sizzo-Noris-Crouty, January 23, 1924

©Barbara Cashman  2015   www.DenverElderLaw.org

Colorado End-of-Life Options – proposed Colorado legislation

Archway at DBG

Archway at DBG

A bill has recently been introduced in the Colorado legislature that would legalize “aid in dying” or physician assisted death.  Last year I wrote a post about a previous version of this bill, then known as the “Death With Dignity” bill.  Just the name change to “end of life options“ and its references to “aid in dying” reflect a change toward a more neutral approach to this highly controversial topic.

A group of us on a bar association committee have examined this proposed legislation, solely for the purpose of looking at how it lines up with existing Colorado law.  Last year’s bill was based on Oregon law and its terminology contained many anomalies and terms from that state which are not consistent with Colorado law.  This new bill contains some changes from its predecessor and I have looked at last year’s bill alongside this year’s bill but the number of changes is not large. Most troubling to some of us is the rather lax standard for witnesses to the request process (set forth in §25-48-104 of the bill) as they are not nearly as stringent as the standards for executing a living will.  Sure, there are also emotionally-charged and value-laden subjective terms in the bill, like “in a peaceful manner,”  “peaceful death” and “peaceful and humane.”  These are some of the troubling aspects of the proposed legislation from my perspective as a Colorado estate and elder law attorney.

Even though I do own a crystal ball, I have yet to get my hands on a decent user’s manual for it. . . ! So, I can’t say what will happen with this latest bill.  It may well end up being chucked out once again by the legislature, only to make its way as a ballot initiative, in the same manner that Washington state got its legislation.

California was the most recent state to pass legislation allowing physician assisted death.  Governor Brown signed the End of Life Option Act into law on October 5, 2015.  You might recall that Brittany Maynard, the young woman who suffered from terminal brain cancer and whose physician assisted death was highly publicized, was a Californian who relocated to Oregon in order to avail herself of that state’s physician assisted death law.

Here’s a link to the Colorado Health Institute’s post about physician assisted death in the wake of Brittany Maynard’s death.  In case you’re wondering about the terminology, the Hospice and Palliative Care folks tend to prefer “physician assisted death” while the Compassion & Choices (successor to the Hemlock Society and proponents of the legislation in many states) folks prefer the term “aid in dying.”

Here is an excellent article on the diverse issues presented in the physician assisted death debate. The article covers the historical and cultural context for the aid in dying movement in this country.  I also found the observation about minority groups not being as keen on physician assisted death as Anglos (sorry, I still use this term from my college days) very telling.  We still must grapple with the historical legacy of our health care system’s treatment of the marginalized.  I have blogged about the Tuskegee experiment and I know from experience (having taken some of these calls at my office) that some newer immigrants to this country are keenly aware of their status as outsiders who might be viewed by the medical establishment as being powerless to object to removing a loved one from life support, for the suspected purpose of harvesting valuable organs.

Okay, so what does any of this have to do with the proposed Colorado legislation?  Well, plenty.  I am not taking a stand here for or against the legislation, but I do have a question that underlies the premise of such legislation.  The major base of support for physician assisted death in this country has been along the west coast, the states of Oregon (implemented their law in 1997) and Washington (approved by ballot measure in 2008) are pretty homogenous (mostly Anglo). I don’t think it’s a coincidence that many of the people who state they may wish to avail themselves of physician assisted death are better-than-average educated Anglos.  These are people who are used to being “in charge” of their lives, making choices and seemingly charting their own destinies throughout life.  These are many of the same folks who struggle mightily with quality of life and independence and autonomy issues as we age and became less independent.  This isn’t too far from the death denial and youth glorification I am so fond of writing about.  For many of these folks, the right to die is simply an extension of their self-determination in the medical context.  I  however, do not think it is nearly that simple!  Nor do I think the “illusion of control” that so many of us collectively buy into so readily extends readily to complex end of life scenarios.

I can certainly understand concerns about less medical intervention to prolong life, but this is not what we’re talking about here.  We are talking about extending a person’s health care self-determination right such that medical technology is used to end a life.  I will close with another question – does or should it matter that not many so people will use this legislation to hasten their deaths?

I’m sure I’ll be writing more on this interesting topic, so please stay tuned.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

 

Another post about caregiving and living arrangements

Santa Fe sculpture

Santa Fe sculpture

In looking once again at aging in place, let’s look at whether you really need to know what a NORC is and how it is different from a CCRC.

Conventional wisdom dictates that most of us would want to stay where we are as we grow older, but this isn’t always the case.  It depends on the person’s unique circumstances.  Some of these factors include:

The kind of home or condo you own – does it require lots of maintenance and have stairs or other factors that require lots of physical attention?

Is it necessary to drive a car to get groceries, visit friends, or get to social activities, or can you carpool or use public transportation?

Many people don’t think about the social isolation factor of staying in their own familiar home, but if an elder doesn’t have friends or neighbors nearby that can check in on them, elders can become isolated in a solitary and repetitive routine that can be deleterious to their emotional and mental health!

Refining the balance of social engagement and doing your own thing is something that is often required for successful aging in place.  Change is the only constant, but many of us will voice concerns about maintaining our “independence” at all costs.  With so many baby boomers reaching elderhood now, it will be interesting to see the myriad and innovative ways that boomers meet this challenge.  Apart from their huge number, boomers have a relatively high proportion of divorce and remarriage (blended families) as well as co-habitation.  There really is no “norm” for the boomers in this regard!

I think the best advice for folks nearing retirement and hoping to age in place and otherwise stay put is to consider all relevant options and to make a plan.  I particularly like the Dwight Eisenhower quote in this context:

In preparing for battle I have always found that plans are useless, but planning is indispensable.
In my line of work, I find that people often think that sticking to a plan (or more likely, just some fixed idea about how things would turn out) is the most important thing.  As if life were something we could plan and force execution of the plan!  We are so checklist and task-obsessed in our busy world, we tend to forget that the planning process is the both the end as well as the means – not the fashioning of a solid plan which often must be adjusted and sometimes jettisoned.  This is one of the reasons I often refer to the work I do for clients as helping them identify a strategy.

If you want to think about this aging-in-place notion a bit more, here’s a post from Fidelity about success factors to consider in staying put as you grow older.

One of the factors that can help elders age in place is staying put in a place, a community, a neighborhood, that has plenty of supportive services which many elders will need as they age.  Enter the NORC, the naturally occurring retirement community!

The NORC, yes it’s legit, it’s in Wikipedia!  NORCs have been broadly defined as communities where individuals or couples either remain in or move to when they retire.

Of course what is “natural” in the naturally occurring retirement community is a rather broad and generous concept.  This could be as simple as an apartment complex for elders, a housing development or a neighborhood.  As to the neighborhood concept, this has been well-developed by the NORC Aging in Place Initiative, which is a program of the Jewish Federations of North America.  The full name of the initiative is the NORC-SSP, “SSP” being short for supportive services program, which considers the social services appropriate and necessary to foster independent living for elders.

Some of the important factors include financial considerations, which vary widely among those already retired the “semi-retired” and those still years away.  People are generally working longer, and this is probably a good thing for the majority of people, but some have no choice in the matter.

In my last post, I looked at the importance of having this conversation about aging and caregiving arrangements before there is any crisis.  I often work with people (and their loved ones) who suffer from progressive diseases which practically demand such conversations – those with multiple sclerosis, Parkinson’s disease, ALS, as well as other neurodegenerative conditions which have both a physical and cognitive or mental health component.  Some of these folks will do the planning and have the financial ability to choose a continuing care retirement community (CCRC) which is also a kind of NORC.

As I am often reminded. . . . Aging is not for sissies!  It is, of course, best done with a plan including effective durable powers of attorney and other means to choose in the event of incapacity.

I’ll close with a quote from Ralph Waldo Emerson, who reminds us that human growth is always a possibility, no matter where we find ourselves:

Always do what you are afraid to do.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

 

Caregiving Arrangements and Elders: The Next Conversation We Need to Have

Youthful Exuberance

Youthful Exuberance

Death denial and youth glorification go hand in hand in our culture.  Today, I’ll look a bit more at some of the cost of denial in terms of aging and a loss in capacity for the majority of us.  I’ll start with some questions . . .  How many of us will voluntarily give up our car keys? How many will willingly concede to family or friends that we are having a difficult time managing our daily existence?  In my experience, the number is small.  It takes a combination of honest self-assessment, a well-developed self-awareness, a special types of candor, or just something catastrophic that “calls the question!”   For the former, I think of a cousin’s late father, just a few years older than my father (his cousin).  He was a retired physician and at one point detected some cognitive “slippage” which did not seem to be age-related.  He got himself to the doctor and shortly after getting his dementia diagnosis, updated his estate plan and moved to another state with his wife to live his remaining years close to one of his children.   His children no longer resided in the same state where they were raised.

Many of us would not be willing to make such a drastic change, perhaps because it doesn’t fit in with our idea of how our life in our elder years is “supposed to be” and doesn’t seem to fit with our idea of how we should “be independent” and not be a burden on loved ones.  But often the simple denial of the inevitable, along with the lack of planning and of stock-taking, means that we most certainly will be a burden on our loved ones.  I have joked with clients about this, that no client has ever informed me that they want to be a burden on their adult children . . . !

Of course there is also the financial piece of the planning.  Given the meager state of average retirement savings for many boomers and other elders, along with the hard reality that many retirees are just one health catastrophe away from bankruptcy, some folks take the “why bother?” approach as an excuse to do nothing.  Procrastination is, after all, an effective means by which to focus on what really matters – or at least what keeps us busy, which are seldom the same thing!

Okay, enough with the wisecracks. Death denial is only one side of the coin here so to speak, and on the other side is the youth glorification, its own form of denial of encroaching mortality.  In our present independence obsessed “aging in place” mantra muttering mainstream, we often fail to see the hidden costs of our independence and the burdens it often places on others.

Yes, I’m thinking of all the family (unpaid) caregivers.  The vast majority would not have it any other way most of the time, but the fact is that our longevity is getting longer and less financially certain all the time!  Couple that with the shrinking number of women (the ones who have tended to provide these services) who do not work outside the home who are available for such work) and it can cause some genuine concern.  More of us, particularly many of the divorced and single baby boomer cohort, will face much more interesting challenges with our often fractured and reconfigured family lives.  There is no “standard template” for a blended family relationship.

While I’m thinking of it, here’s a link to a recent US News & World Report article about family caregiving and how its future is changing.

Another aspect of the youth glorification beyond the self-loathing some elders feel is the denigration of the aged, the ideas that elders are no longer worthy because of their diminished capacity, usefulness or social or economic relevance.  This is when being an elder becomes a human rights issue!  Yes, I’ve blogged about the human rights of elder previously, but this is an evolving field.  I’ve recently learned about an organization called The Global Alliance for the Rights of Older People.  This organization is comprised of several international organizations as well as nongovernmental organizations (NGOs) who work together to raise awareness of the threats and challenges elders face in different parts of the world and supports the creation of international human rights instruments as tools to strengthen the rights of older people.

So I will close with an observation which I believe is illustrated by a Carl Sandburg poem featured below.  Is it really too difficult to filter through the noise and the modern day disease of incessant busy-ness to talk about this?  What if we could consider the present importance of our relationships which sustain us in a long term “what if” scenario that went beyond the planning for our inevitable demise?  Would that change the way we are living right now?  I think it would.  I also think quieting the mind and considering the stillness is one means of opening the door to welcome those questions for contemplation and consideration.

The Answer, by Carl Sandburg

You have spoken the answer.
A child searches far sometimes
Into the red dust
                          On a dark rose leaf
And so you have gone far
                         For the answer is:
                                                 Silence.

 In the republic
Of the winking stars
                          and spent cataclysms
Sure we are it is off there the answer is hidden and folded over,
Sleeping in the sun, careless whether it is Sunday or any other day

       of the week,

Knowing silence will bring all one way or another.

Have we not seen
Purple of the pansy
                   out of the mulch
                   and mold
                   crawl
                   into a dusk
                   of velvet?
                   blur of yellow?
Almost we thought from nowhere but it was the silence,
                   the future,
                   working.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

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