Welcome to My Blog

I have a new logo, and I’m pleased to say that the day I purchased it and printed it out, I was able to ask a client what he thought about it, and he immediately recognized it as a tree and made the “tree of life” connection. Yes, that’s the tree I’m talking about! My logo is a tree that also looks like a person who is embracing a community. I think this is particularly relevant to what I do because I work to help my clients put together a holistic plan for their future – one that is consistent with the values a person has lived by and which honors the relationships with family and community members. Holistic planning can also involve peacemaking. The tree of life connection is especially meaningful to me because it symbolizes the transitory nature of our lives and the relationships, in the context of certain unchanging constants. The tree of life symbolizes a simple message of unity, that we are all part of a community and it is represented in a number of different cultures, myths, faiths and traditions across time and geography. It is an important symbol for my practice philosophy because I seek to assist my clients in identifying ways they can maximize the support and connections they need from others during their lives and so they can transmit their legacy after they are gone.

I mention the Tree of Life specifically on my blog page because my blog is the place where the diverse but related interests will converge. We have never before had so many 80 and 90 year-olds on the face of the earth. What are the implications for law, ethics, medicine, philosophy? These are all appropriate aspects of identifying a strategy for clients because a sound plan must take into account the “ripple effect” of individual actions that relate to financial, emotional, medical and physical considerations that are often relevant in the legal context.

 

Capacity and Incapacity in Context

Maigue Swan

 

Capacity is not some dusty old legal concept! In this post I revisit some implications encroaching incapacity or. . .  the “dark side” of our longevity.

The issue of capacity basically concerns judgement – the ability to reflect on and consider decisions required for daily living.  When one lacks that capacity (or is deprived of it) the validity of some actions taken or decisions made – which have legal implications – can be called into question.  This capacity discussion is likely to become more commonplace as more baby boomers move into retirement years and greater longevity…

Here’s a definition of capacity referring to Black’s Law Dictionary:

Legal capacity is the attribute of a person who can acquire new rights, or transfer rights, or assume duties, according to the mere dictates of his own will, as manifested in juristic acts, without any restraint or hindrance arising from his status or legal condition. Ability; qualification; legal power or right. Applied in this sense to the attribute of persons (natural or artificial) growing out of their status or juristic condition, which enables them to perform civil acts; as capacity to hold lands, capacity to devise, etc.

Capacity includes the ability to behave rationally and exercise one’s own judgment (for better or worse).  Certain matters which typically adversely impact one’s otherwise presumably intact capacity include: mental disorder, developmental disability, intoxication, injury affecting one’s cognitive abilities, or the course of a disease process.

Reference to judgement capacity (or the ability to process information) is a legal notion often coupled with or inclusive of a functional (objective) capacity assessment.  This is because so many of our human “doings” can require distinguishing (as our law does) between when we can manage and when we can’t.  The term “capacity” by nature refers to an ability.  I won’t go into any discussion about the nuances and historical underpinnings in the law relating to capacity as distinguished from competence.  If you want to read further on that topic, check out this entry from the Stanford Encyclopedia of Philosophy on decision-making capacity.

So – how do we move from being presumed to have capacity to being legally incapacitated?

Where an adult has diminished or diminishing capacity, the law makes reference here to the “least restrictive means,” a concept borrowed from disability law.  For Colorado adults who are determined by a court to be incapacitated, there is a finding by the court that “the ward is an incapacitated person and the ward’s needs cannot be met by less restrictive means, including the use of appropriate and reasonably available technological assistance.”  See JDF 848, Order Appointing Guardian for Adult.

Because my practice focuses on elder law and probate, most of the petitioners whom I represent file petitions for guardianship (or conservatorship) concerning elders who have “slipped” in their capacities to manage for themselves, meaning the individual no longer has sufficient capacity to manage their affairs or make important decisions on their own.  Many of these elders are at risk of financial exploitation as a result.  I have also represented petitioners who are often parents of developmentally disabled young adults.  The distinctions among them, as for elders, are varied and numerous.  Suffice it to say that sometimes, for younger adults, it may be easier to establish grounds for a limited – as distinguished from the much more commonplace unlimited guardianship.  In the former there can be specific references to supports to help facilitate an adult’s capacity(ies).  Unfortunately, limited guardianships remain rare birds for a number of different reasons.

  Capacity in Daily Living

To bring this discussion back to the practical level, I not that one’s capacity to “live independently” or perform the activities of daily living (ADLs) are often part of the incapacity picture as well, but this is generally due to a concern for an elder’s self-neglect.  With regard to an elder who is named as a respondent in a petition for guardianship, the elder’s physical capacity or incapacity is generally irrelevant in determining incapacity unless it substantially affects his or her ability to make or communicate important decisions regarding his or her person, family, property, or results in self-neglect.  Physical impairments alone are often of limited import in the guardianship context, as evidenced by reference in Colorado law assistive devices and technologies and the preference for least restrictive means, but in making the determination of incapacity, reference is made (as stated above in JDF 848)  to those assistive technologies.

Another context for elders and capacity which is receiving more attention is the issue of consent for sexual relations.  I would imagine that the free-loving baby boomers will test their adult children’s tolerance and demand that more attention be paid to this aspect of living in a communal or institutionalized setting. Read a recent study about the generation gap in attitudes and practices of extramarital sex here.  A couple years back I wrote a blogpost on this topic and also about a husband in Iowa who was prosecuted for allegedly sexually abusing his demented wife.

Suffice it to say that this debate is ongoing, particularly as more institutions look to provide more person-centered care for residents who still enjoy physical intimacy.  Some of these folks have dementia or other cognitive impairments which can affect their ability to consent.  Do not underestimate the “eeewww” factor of many of these folks’ adult children who would rather not be informed of mom’s recently contracted STD or consider that an elder parent is sexually active!

We must remember, even when an adult is determined to be incapacitated for purposes of imposing a guardianship, what can still remain intact is that person’s capacity to express a preference as to the person who will serve as guardian.  In In re Estate of Runyon, 343 p.3d 1072, 1077 (Colo.App.Div.4 2014), the court held that

a finding that the respondent is an “incapacitated person” within the terms of the statute does not necessarily mean that the respondent lacks sufficient capacity to express a preference as to a guardian or conservator.   Neither the definition of incapacitated person nor the criteria for appointment of a conservator automatically exclude the ability to make a rational choice as to the selection of a guardian or conservator. Therefore, an incapacitated person may “still be able to express an intelligent view as to his choice of guardian, which view is entitled to consideration by the court. (Citations omitted)

That’s all for now and thanks for reading!

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Capacity and Incapacity Considered

Swirling

As a growing portion of our population continues to age, we are more frequently forced to confront the question of capacity.

What is capacity and why should we care? 

As we continue to enjoy unprecedented longevity, we face greater likelihood of incapacity in our future.  Sometimes this incapacity is short-lived or temporary but for many of us, particularly for elders, it can become an issue that plays out over time and can result in a permanent incapacity.  There are very few “bright lines” to define what is capacity and what constitutes incapacity generally, but there are many useful contextual and functional definitions of capacity to assist us in this effort.

I believe that the more we can learn about how these capacities and incapacities present themselves in the context of our daily lives, the better equipped we can become to help detect and prevent elder exploitation and abuse.  This post is about three particular types of capacity along the capacity continuum.  I use the term “continuum” because it is easy for many of us to think (or rather, wish to believe) that this capacity question is relatively straightforward.  It is not!  Like so many other aspects of human doing and human being, it can get quite complicated.

I’ll look at three familiar types of capacity here to put the question in context.

  1. Capacity to Make Medical Decisions

These medical Informed consent issues can include a range of capacities relating to what a patient is being asked to do – there is a range from the “mundane” question of whether the patient give informed consent to medical treatment or to decline such treatment; if the patient wishes to name a health care agent to make decisions for them in the event of their incapacity; and what about the capacity to make end-of-life wishes known with a living will?  Here the functional elements of these capacities can be broken down into four basic parts:

(a) To express a choice: The standard of expressing a choice refers to patients who are seen to lack capacity because they cannot communicate a treatment choice, or vacillate to such an extent in their choice that it is seen to reflect a decisional impairment;

(b) To exhibit understanding: The standard of understanding refers to the ability to comprehend diagnostic and treatment related information and has been recognized in many states as fundamental to capacity.

(c) To appreciate the implications of a particular choice or course of treatment. This aspect capacity has been described as the ability to relate treatment information to one’s personal situation. The standard of appreciation can reflect the patient’s ability to anticipate or infer the possible benefits of treatment, as well as to accept or believe a diagnosis.

(d) To rationally process information. This reasoning aspect of capacity involves the ability to recognize and offer rational explanations or to process information in a logically or rationally consistent manner.

Each of these aspects of medical capacity are interwoven into the ongoing conversation of one’s medical treatment and are of course highly subjective in many ways due to the individual patient’s own preferences or style of communication.

  1. Capacity to Drive an Automobile

This one is big for us Americans who don’t have so many public transportation options! The ability to drive is often one of the last things to go because it can in some ways restrict an elder’s ability to go places on their own schedule.  The AARP has an online defensive driving course and AAA has resources for getting evaluations of one’s driving skills as well as clinical assessments, but the “official” Colorado program is the Drive Smart program – click here for more information about it.  Under Colorado law, doctors (and optometrists) can provide medical opinions to the DMV concerning a patient’s medical condition and the patient’s physical or mental ability to safely operate a vehicle.  For more information about when an examination is required, here’s a link to a power point about it from the Colorado Coalition for Elder Rights and Abuse Prevention.

  1. Capacity to Make a Will

As an estate planning and elder law attorney, I meet with prospective clients and must make capacity determinations as a matter of course.  The ABA has a handy guide for lawyers and psychologists concerning assessment of a person’s capacity.  It is available here.  In order for an attorney to represent a client, an attorney must first establish that the potential client has the capacity to hire the attorney as well as direct the activities of the attorney.  We have a special rule of professional conduct which applies to clients with diminished capacity.

Historically, this testamentary capacity is at the lowest level along the capacity continuum.  In Colorado, the law is a bit less clear since the Breeden case, but  many states still recognize testamentary capacity as a separate and special category.  The Colorado probate code allows for a protected person (a person under a conservatorship) to make a will through the conservator. See Colo. Rev. Stat. §15-14-411.

One of the aspects of this low level of capacity required to exercise our testamentary freedom is that a will can be subject to challenge under some circumstances.  The person’s ability to make a will, or their testamentary capacity, can be the subject of a lawsuit known as a will contest.  Challenges to testamentary capacity often revolve around “undue influence,” in which a person challenges the will (and sometimes nontestamentary transfers as in the recent Colorado Appeals Court decision in Estate of Owens v. Dominguez).  Undue influence depends on many situational factors but generally can require a showing by the one challenging the will that: a person standing to benefit from the new will was in a confidential relationship with the testator (person making the will); that the person received a substantial benefit; from the testator who was suffering some mental, social or psychological impairment which compromised the testator’s mental capacity or independent thinking.

To conclude this post, if we think of capacity not just as a concept but as grounded in a particular context – as illustrated by the examination of capacity to perform a particular task, we can go much further in our examination of how much capacity is required and whether the requisite capacity is lacking.  From this contextual basis, we can then take a look at what type of assistance to “facilitate capacity” is appropriate and what kind of “assistance” is actually interference indicative of improper influence, exploitation or abuse.  I’ll write more on this topic this summer.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

 

World Elder Abuse Awareness Day, June 15, 2017

Face on the Rock of Cashel

This isn’t my first post about World Elder Abuse Awareness Day or WEAAD for short. It’s an annual post for me on this day – last year I looked at the “international” part of WEAAD, as well as the national (federal) focus.  This year I will focus on a local aspect – as in Colorado law that can be used to stop an abuser straightaway.

First let’s revisit the basics of what can constitute elder abuse – keeping in mind that each state has its own set of laws addressing this matter, as does the federal government.  This lack of a common definition is part of the challenge in reporting elder abuse and identifying the numbers of elders involved.  But I think the biggest challenge remains in recognizing that elder abuse is a problem that affects our society, not just individuals taken advantage of by strangers or harmed by their loved ones because they are perceived as old, of little value to society, or as an impediment to an heir’s inheritance…

While there is an unfortunate variety of types of elder abuse – elder abuse generally includes:

Mistreatment – this is the preferred term for the American Society of Aging, which is offering a course on mistreatment as comprising abuse and neglect;

Abuse of a financial nature/exploitation – this includes the unauthorized or illegal use of or access to an elder’s financial resources that covers a range of activities such as theft, undue influence, deception or fraud, misrepresentation or coercion;

Abuse of physical nature – this includes violence of a physical nature, including slapping, hitting, restraining or confining an elder, overmedicating or giving improper medication;

Abuse of sexual nature – includes a caregiver forcing an elder to watch or participate in sexual acts;

Abuse of psychological or emotional nature – can be very subtle when employed by a manipulative or cunning family member or care provider;

Neglect of an elder can occur when a caregiver fails to actively or passively fulfill the role of caregiver (paid attendant or unpaid family member) or when an elder self-neglects.

The Adult Protection Services – APS for short – is part of the Colorado Department of Human Services and they have broken their page into four basic categories: caretaker neglect; exploitation; physical or sexual abuse; and self-neglect.  But this offers a very broad brush approach of what to report!

There are other options available in addition to simply reporting suspected mistreatment, abuse or neglect.  One of these involves getting immediate and direct protection against an abuser by means of obtaining a civil protection order.  A civil protection order proceeding is in county court and is available to persons who elders (and at risk adults, those who have developmental disabilities or some other cognitive impairment) who are victims of abuse to prevent further contact by the alleged perpetrator of the abuse.  Read more about the instructions and forms available on the Colorado State judicial website here.

The JDF 402 form for a complaint or motion for civil protection order specifically lists “abuse of the elderly or at-risk adult,” and cites Colo. Rev. Stat. §26-3.1-101(1) and (7).  That latter section of the statute, which is the definitional portion of the “protective services for at-risk adults,” provides

(7) “Mistreatment” means:

                (a) Abuse;

                (b) Caretaker neglect;

                (c) Exploitation;

                (d) An act or omission that threatens the health, safety, or welfare of an at-risk adult; or

                (e) An act or omission that exposes an at-risk adult to a situation or condition that poses an imminent risk of bodily injury to the at-risk adult.

You can see that there is astatutory provision for mistreatment that comprises abuse in our state.  The term is broad and necessarily so.  Remember that the statistics used by the National Council on Aging indicate that elders who have suffered abuse have a 300% higher risk of death as compared to those who have not been mistreated.

The take-away for this post is that there is an immediately available remedy to stop the mistreatment of elders in the form of a civil protection order.  The county courts have the forms available and magistrates or judicial officers to review the complaints or motions for such relief against an abuser respond quickly.

For elders who are suffering mistreatment at the hands of an abuser, a civil protection order can prevent further harm and help to safeguard the elder’s health.  I believe that raising awareness of available remedies to stop further abuse of elders is an important step toward realizing the goals of WEAAD.

© 2017 Barbara Cashman  www.DenverElderLaw.org

The AHCA and Elders on Medicaid

Wahatoya Enshrouded

In this post, I am looking at what’s at stake for elders currently on Medicaid.  The AHCA or American Health Care Act (a/k/a Trumpcare) narrowly passed through the U.S. House, with twenty Republicans voting against it.  It faces more hurdles in gaining Senate approval, but the Senate is now considering the proposed law.

Medicaid is of course a government “welfare” program which came into being (along with Medicare) in 1965  when President Lyndon Johnson signed into law the bill leading to the establishment of both programs.  While many people think of the stereotypical mom and kids when they think of Medicaid – they were a primary source of concern for the original Medicaid program after all – there are many elders who are sick enough and poor enough to qualify for Medicaid.

How is the financial stability and well-being of elders on Medicaid threatened by this proposed law?

Colorado has been one of the many states in which “Medicaid expansion” has boosted enrollment in the insurance rolls of elders, the rural poor and other populations.  In Colorado, Medicaid is known as Health First.  The AHCA proposes, among many other huge changes, to move the funding to a “block grant” system in which each state will be given a grant for their Medicaid recipients.  Here’s a recent Denver Post article which discusses the impact of such a grant on Colorado’s budget.  Leaving the states to shoulder more of the Medicaid funding sounds like a good way to offload federal Medicaid as we know it, but it will change the landscape of health care services available to poor elders, particularly in rural areas, in ways we cannot foresee.  And I do not mean for the better!

How has the payment of health care services changed over the years?

I remember my father telling me about the circumstances under which my oldest brother was born in a hospital in Denver sixty-six years ago: the nuns weren’t happy with him because he couldn’t pay for my mother’s delivery (it was a bit complicated) with cash on the spot.  Yes, those were the “good old days” in many ways, when many Americans paid for lots of routine things (including the hospital stay for the birth of a child) out-of-pocket.  I found this colorful graphic from the California Health Care Foundation, which demonstrates how the source of health care payments have changed since 1960 through 2014.  If you want to look at some more color graphs, check out this collection of instructive slides in Louise Shiner’s pdf entitled Understanding the Slowdown in Heath Care Spending Growth.  In today’s “health care” environment, many of us need assistance for paying premiums, with getting needed prescription drugs and related items we couldn’t otherwise afford.  Long gone are the days when we routinely paid out of pocket for medical care!

So – who will pay for the elder’s medical care if Medicaid as we know it. . .  . disappears?

Based on information from the Medicaid.gov website, Medicaid provides health coverage to more than 4.6 million low income elders, nearly all of whom are also enrolled in Medicare.  Medicare has four basic types of coverage:

Part A: Pays for hospitalization costs

Part B: Pays for physician services, lab and x-ray services, durable medical equipment, and outpatient and other services

Part C: Medicare Advantage Plan (like an HMO or PPO) offered by private companies approved by Medicare

Part D: Assists with the cost of prescription drugs

Medicaid can assist low income elders in paying their insurance premiums and out of pocket medical expenses; it can also pay for additional services beyond those paid for by Medicare – like long term nursing care, prescription drugs, eyeglasses, and hearing aids.  Medicaid can often make a difference in providing the needed care or services by covering the shortfall from the difference in Medicare payment limits and the costs to the patient.

Here is a fact sheet from Justice in Aging which identifies what the “block grant” funding proposal would mean for elders on Medicaid.

Bottom line is that poor elders would receive less medical care or lower quality care as a result of the belt-tightening of the states providing those Medicaid services to their recipients.  People who have a period of ineligibility – like if they inherit a sum of money from a sibling or child – would not be able to re-qualify for future Medicaid services.

I don’t usually like to write these kind of “scary” blog posts, but as an elder law attorney I am deeply troubled by what might happen to some of the most vulnerable persons in our country (disabled adults) if the AHCA is passed.  I’m only mentioning in passing that Medicare premiums will rise – remember those tax cuts in the AHCA have to land somewhere!  Under the block grants, states will be free to retool their own stricter rules and I would imagine that some states will be looking to filial responsibility laws for shifting their burden to requiring the children to pay.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Dementia, Fear and Aid in Dying

Sunset on an Artificial Lake

 

For this first post of June, I am revisiting a topic that has been discussed in previous posts: Alzheimer’s (or other forms of dementia) and the fear of aging.  Combining that volatile mix with the question of assisted dying presents a long list of novel questions.  The topic  was sparked by a phone call I received from someone residing in another state but who was looking for information about Colorado’s End of Life Options Act.  The specific query concerned the caller’s desire to explore options to end a spouse’s suffering from Alzheimer’s disease.  My response was fairly straightforward and I think the caller was a bit surprised by my candor.  I explained that under the Colorado law a patient or “qualified individual” was required to, among other things, have the capacity to give informed consent to the  receipt of the aid-in-dying medication to end the qualified person’s life.  See Colo. Rev. Stat. § 25-48-102(13) defining “qualified individual” and § 106(e) which concerns more details of the individual’s “informed decision.”

The caller was surprised when I explained that the only legislature which has to date considered expanding the aid-in-dying law to dementia patients was Oregon.  The Oregon Senate Bill 893 would allow for those persons otherwise qualified for administering receiving life-ending medications under Oregon’s Death with Dignity Act, except that the  patient who ceases to have capacity to give informed consent can still be given life ending medication if there is a specific advance medical directive which expressly authorizes an agent under a medical power of attorney to collect and administer the life-ending medication if the incapacitated person previously received a prescription for such medication.

Alzheimer’s Disease and other forms of dementia (here I will collectively refer to them as AD) are typically the most feared diseases of post-modern westerners who privilege their rationality (remember the Cartesian mantra “I think therefore I am”) and perceived autonomy over all else.  Further, our techno-medical way of examining aging, of parsing out different functions of one’s life ascribed to different body parts, leads us to believe that whatever form of cognitive impairment – age related or otherwise – might just be a part in need of fixing or a disease waiting to be cured. This type of reductionist thinking refuses to look outside its own narrow pigeon hole. In the meantime, those of us who do not perish will age in our own unique ways and many of us will struggle with its challenges.

Whose fear is it – and whose suffering?

What do we make of this fear of AD and fear of a person’s – er – a personality’s – disintegration?  I think in several important ways it is the same fear as the terror of dying, just a bit more latent and prolonged, and therefore more menacing than death for some people.  I’ll quote from Shakespeare’s Julius Caesar (III.i. 102-105) here, the conversation between Cassius and Brutus:

Cassius: Why he that cuts off twenty years of life

Cuts off so many years of fearing death.

Brutus: Grant that, and then death is a benefit:

So are we Caesar’s friends that have abridged

His time of fearing death.

There are many ways to respond to one’s own AD and to that of a loved one’s.  One way is to project our own fears onto the other person, who appears a shadow of the former self or as completely incapacitated.   But there is no standard response, even though some “conventional wisdom” (I use the term tongue in cheek here) might be welcomed by many who find the disease and its process most bewildering.  A slight detour here . . .

Bewilder is defined in the Merriam Webster online dictionary as (transitive verb):

1:  to cause to lose one’s bearings (see bearing 6c) bewildered by the city’s maze of roads;

2:  to perplex or confuse especially by a complexity, variety, or multitude of objects or considerations His decision bewildered her. utterly bewildered by the instructions.

And what if we break down that verb into a command – be wilder, wild from the noun wild) to be:

1: A natural state or uncultivated or uninhabited region.

2: (the wilds) A remote uninhabited or sparsely inhabited area.

Now back to my topic. . .

My concern is that there are many faces of Alzheimer’s Disease just as there are many aspects to an individual’s response to a loved one affected by AD.  I am thinking particularly of a recent article published in Kaiser Health News, entitled “How to Help Alzheimer’s Patients Enjoy Life, Not Just ‘Fade Away,’” and you can read that here.  The fact remains that each person is affected by AD is his or her own way and the “preoccupation with the cerebral pathology” (which the psychiatrist Dr. David Rothschild criticized in his 1936 paper on the psychodynamic model of senile dementia) often serves to fan the flames of fear and anxiety over our collective preoccupation with the losses of aging.  There are many other paths to choose here – not just the one of least resistance which is fear based.

© 2017 Barbara Cashman  www.DenverElderLaw.org

JeffCo Senior Law Day is June 3, 2017!

The Rialto Bridge at night

May is National Elder Law Month! So – for the last post of this month I wanted to mention this important detail.

The event I’m participating in to observe elder law month, however, is next month . . . the Jefferson County Senior Law Day is coming up on June 3, 2017.  More information about it is here including registration information.

There will be twenty-four separate presentations on more than twenty different topics, beginning at 9:00 a.m. and concluding at 1:45 p.m.   I will be presenting on the topic “Managing the Challenges of Later Life Remarriage.” Last year at this Senior Law Day (there are a few different locations in the front range area, click here for more details on the Colorado Bar Association website) I presented on a similar topic.  Mine is a relatively new topic but is one about which many people have questions.

If you can’t attend this Senior Law Day and are looking for reliable information resources, you can click here to download the 2017 Colorado Senior Law Handbook, published by Continuing Legal Education in Colorado.

© 2017 Barbara Cashman  www.DenverElderLaw.org

Planning for Aging

Florentine graffiti… what me worry?

How does one assess the value of planning for one’s retirement, potential incapacity and/or eventual demise?  That is a very personal assessment, notwithstanding that the failure to plan has enormous financial consequences – for the individual, their loved ones and society as a whole.  Perhaps a prime and popular example is the failure to make advance heath directives – including appointing an agent under a health care power of attorney and signing a statement of end of life wishes – a/k/a a living will or in Colorado the Declaration as to Medical Treatment.  Read here for more useful information from the Colorado Advance Directives Consortium.  Many of us, perhaps most, would rather not entertain the idea that our lives will eventually change.  Our lives change every day, but whether we mark those changes is up to us!

“In the beginning is relation”

This famous quote by philosopher and theologian Martin Buber is a favorite of mine.  In my line of work relation and relationships are keys to planning and realistically assessing how far one can plan as well as the extent to which we must rely on others to assist us in the execution of our planning.

Aging and planning can give us the space to reflect on our values, what has been and remains important to us, and planning can also take much of the burden off our loved ones in the event we face a health crisis during we might be unable to make decisions.

I recently came across Sharona Hoffman’s 2015 book “Aging With a Plan,” and found it very insightful.  Hoffman is a law professor and, like many of us who practice in elder law, has life experience with an aging and frail parent.  She uses that experience, along with a systematic big picture discussion of a realistic conversation to consider all the alternatives in making plans for one’s aged self.

Many of us assume that, if we have lived in our home independently for 30+, we would never have an intention of leaving that space of storied independence and autonomy.  I note here that many elders (I’m including a number of clients and others) are coming to understand that there are good and workable alternative options for housing and community involvement that can nourish and sustain one’s basic human need to be part of a community and to contribute to that community.

I liked Hoffman’s approach to her book because it is founded on the importance of maintaining relationships, through social interaction and being useful (at whatever level).  The latter, being useful and having something or someone to take care of, is a fundamental premise in the “green house” nursing home alternative.  You can read about that in an article here from the Atlantic Monthly, or more about Dr.  Bill Thomas in a 2016 Washington Post article.  But I don’t want to get off track in talking about “green houses”  . . . .

So what are the components of a plan for aging? We are all familiar with retirement planning (even if the majority of us barely engage in such planning) and its focus on finances.  I think part of the repulsion in retirement planning is the focus on finances, many people simply find the savings part a difficult conversation and so stop before considering other aspects of retirement planning or aging with a plan.  I consider neither of these often heard comments a plan:  “X will never happen to me because my family doesn’t live that long;” or “if I can’t go to the bathroom or feed myself on my own, then just shoot me.”  We still don’t understand the role of genetics and epigenetics on the aging process very well and not deciding this very grown-up matter of “what happens if” means that we are shirking the responsibility be forcing someone else to choose for us…..

I recommend Hoffman’s book – it’s easy to read and its focus on several practical concerns including: finances; elders driving; person-centered (not disease-based) health care; and the importance of an exit strategy; demonstrate that the book is very useful – for an elder or elder-in training, or for an elder’s family member to assist with the awkward place of overcoming years of inertia.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Honoring Elder Mothers this Mother’s Day

 

denver elder law

Beautiful Hearts

There are many versions of the history of Mother’s Day and I found an excellent compilation at the National Women’s History Project.  As we all know, Mother’s Day will be celebrated (in this country) this Sunday, May 14, 2017.  There are many ways to honor our mothers – even if our mothers are no longer living.  In this post I’m tying together two seemingly disparate threads: how to honor our elder mothers on Mother’s Day by considering the plight of a large number of impoverished elder mothers if the American Health Care Act becomes the law of the land.

Last week I posted about long term care insurance, why it is helpful and . . .  how we shouldn’t be complacent about the availability of Medicaid services for poor and sick elders who lack the resources or savings to self-insure.  Little did I know that just hours after that post, I would get news of the U.S. House approving a version of the American Health Care Act which would, if it becomes law, gut Medicaid for millions of people, including elders!

What’s at stake?

Medicaid expansion under the ACA will be rolled back under the AHCA.  Here are some details about Medicaid expansion from a 3/26/17 Forbes article: From 2014 through 2016, the ACA’s Medicaid expansion population is funded 100% with federal dollars. Beginning this year, states gradually have to pick up some costs, but the federal government still picks up 90% or more of Medicaid expansion through 2020. It was a better deal than before the ACA, when Medicaid programs were funded via a much less generous split between state and federal tax dollars.  That article points out that the Medicaid expansion has been a boon to health insurance company giants like Aetna, Anthem, Centene, Humana and UnitedHealth Group, who have enrolled millions of new members under the expansion.

As this article from the Kaiser Family Foundation illustrates, the hardest hit under the AHCA appear to be nonelderly disabled adults, folks with conditions or diseases like cerebral palsy, multiple sclerosis, developmental disabilities, people affected by brain injuries and so on.  But the AHCA would adversely impact elders as well, by its move to a “block grant” to states (a fixed $$ amount for each beneficiary) as well as the elimination of the ACA’s protections for people with pre-existing conditions.   Of note is the “no” vote of U.S. Rep. Mike Coffman (R – CO) on the grounds of the AHCA’s failure to protect the relatively small number of persons with preexisting conditions, who would be left without any coverage.  You can read the AARP’s post about this here.

It is unlikely that elders on Medicaid will be heard from in large numbers about their loss of insurance coverage and benefits, but elders who will see their insurance premiums increase may be more vocal, and I think it’s a safe bet to count on the insurance companies (who benefitted from Medicaid expansion) to raise a hue and cry when the U.S. Senate examines the proposed legislation.  A Forbes article from 5/7/17 notes that “Of the 75.2 million Americans covered by Medicaid, 54.7 million are enrolled in private plans, a report from consulting firm PwC indicates. Much of the recent growth has come from Medicaid expansion, benefitting not only insurance companies but hospitals, doctors and other medical care providers.”

Without Medicaid funding from the federal government, which was the impetus for Medicaid expansion under the ACA,  states will be left on their own, with limited funds from federal “block grants” to cover a fraction of those persons who were enrolled and covered under Medicaid, or a fraction of those persons’ health care.  The Congressional Budget Office published its analysis of the AHCA on 3/13/17 and the summary states that the CBO and the JCT (Joint Committee on Taxation) “estimate that enacting the American Health Care Act would reduce federal deficits by $337 billion over the coming decade and increase the number of people who are uninsured by 24 million in 2026 relative to current law.”

For more information about the AHCA’s impact in Colorado, you can read a Denver Post article here from several weeks back.  The American Medical Association, which opposed the AHCA prior to its House approval, issued this statement on May 4, 2017, criticizing the bill for its results which would cause millions of Americans to lost access to quality, affordable healthcare and un-insuring those with pre-existing conditions.  Many of those folks with pre-existing conditions are elders.

If you aren’t tired of seeing all these links and want to read more, here’s a link to a New York Times article about who would be the winners and the losers under the AHCA.

Please consider honoring mothers by educating yourself about the AHCA and sharing your thoughts and opinions with others, perhaps even your elected officials.  It’s time to make the conversation about something other than money…

© Barbara E. Cashman 2017   www.DenverElderLaw.org

 

 

Do You Need Long Term Care Insurance?

Just Curious!

Like many other questions I pose to clients, who ask me the question first – my answer often begins with . . . “it depends.”  This particular question is often posed by clients doing pre-retirement planning and this may be the best time to be considering one’s options about how best to plan for retirement.  I would consider how one answers this question posed in the title to be part of how we look at our elderhood and its challenges and uncertainties, about which I have recently blogged.  So I will start with some basic questions.

How long will you live?

Sure, I bought a crystal ball a couple years back from a local shop, Grandpa’s Attic in Littleton, but I haven’t yet found a reputable online “gazing” course to hone my crystal ball reading skills. . . . ! Let me know if you have any leads on that.

Will you have health conditions that will make it difficult for you to live independently?

Some of us already have chronic health issues by the time we hit our 50’s or 60’s, so this might be a “heads up” that things could get progressively more difficult.  But many of us just want to simply pretend that a downturn in our health status isn’t likely and so somehow it wouldn’t be possible that we will outlive our financial resources.

Will you have enough money saved to cover for the needed additional care?

Many elders I know want to leave something to their kids after they’re gone.  How does the need to pay for care services, which one typically had been paying for previously in one form or another (if the elder had not been a longtime recipient of government benefits) adversely impact the person’s ability to leave a legacy to family members? Well, simply put, it can pit your own well-being and financial wherewithal against your child’s desire to inherit from you.  I know, it sounds crass and the kind of thing that would never happen to you . . . but the fact is that we elder law attorneys see a fair amount of this.  Why provide the temptation for your kids, to pit your ability to pay for your care against their ability to inherit funds from you?

If you don’t have sufficient funds to pay, who will pay for your care?

Many people assume that if they can’t pay their own way, perhaps family members will care for them.  In fact, our health care system (and I am reminded of Walter Cronkite’s quote “America’s health care system is neither healthy, caring, nor a system”) relies heavily on family caregivers to provide free services to help manage their loved one’s care, improve the patient’s quality of life, as well as reduce costs to the health care system.  Many folks simply want to assume that they will be able to stay in their home, regardless of their physical or medical condition.  This behavior has a name: avoidance or denial!

Will there be sufficient levels of public assistance available in the even you run out of money?

If you think that there will be plenty of money from your fellow taxpayers to fund your care, you might want to reconsider! The Medicaid expansion in Colorado under the Affordable Care Act made many more funds and programs available to impoverished elders who could not afford long term care services, but the continuation of these funds and services is not a sure thing!  The failed American Health Care Act would have gutted those funds available for elders.  Read more here from Justice in Aging’s blog.

Do you already assume that long term care insurance is going to be too expensive?

I met a financial advisor last year who was fairly new to the business, she told me that only “wealthy people” get LTC insurance. I explained to her in my experience that was not the case!  There are people who make getting a LTC policy a financial priority, and they aren’t always those folks who can otherwise afford easily to self-insure – meaning the wealthy who can afford a Cadillac LTC policy or who have enough funds to privately pay for care without making a dent in their kids’ inheritance.

The fact is, there are more ways to fund the purchase of an LTC policy than you can shake a stick at!  Here’s an article by Wade Pfau from Forbes magazine that has several helpful links to the smorgasbord of options currently available.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

 

What If We Declared a War on Elder Abuse?

Diana in Venice

What will it take to raise the public’s awareness of the prevalence of elder abuse? Here is a recent New York Times article about a woman from Washington state, a granddaughter of a victim of elder financial exploitation, who has made her mission in life to secure further legal protection for vulnerable elders.  I tip my hat to the Elder Law Profs blog for the mention of this article.  For this post, I’m focusing primarily on financial fraud and exploitation of elders.

Colorado statistics over the last several years (since the change in law concerning mandatory reporting of elder abuse and investigation by law enforcement) indicate the numbers continue to rise dramatically.  Read this Denver Post article from last fall with some of the breathtaking numbers in Colorado.  The national numbers are a bit more complicated, due in part to the variances of state laws concerning elder abuse – not all states have made it a crime to financially exploit an elder, as well as how such crimes get reported.  In Colorado, law enforcement and county adult protective services are part of the investigative framework for suspected elder abuse and some district attorneys’ offices have specialized prosecutors for such crimes.  The federal law, the Elder Justice Act – about which I have previously written, could provide an important means for developing a more systematic approach to reporting (among other important things) remains only partly funded.

A 2011 study published by MetLife Mature Market Institute estimates the financial loss by victims of elder financial crimes and exploitation exceeds $2.9 billion dollars annually, but this number remains controversial as other studies have estimated $17 billion or $36 billion.  Read about the variety of those numbers here.

How do we define fraud on elders?  That is a big part of the problem with a lack of any “standardized” way to identify such fraud and abuse so as to generate reportable numbers for particular types of fraud and abuse.  One thing that most are certain of is that the exploitation and fraud are both widely underreported –due to the shame and embarrassment factor, particularly when the perpetrator is a family member, friend or neighbor (occupying a position of trust).

Know the risk factors

Forbes recently ran an article by John Wasik that had a great summary of four of these which consider the elder’s behavior:

  • Poor Physical Health. Those who are physically compromised are unlikely to be focused on financial matters. They are often vulnerable to swindles.
  • Cognitive Impairment. When the ability to do basic things like read a banking statement or balance a checkbook declines, that’s when you have to pay attention. Those with declining math skills will not be asking important questions about new investing “opportunities.”
  • Difficulty in Activities of Daily Living. If a person has trouble feeding themselves, bathing or shopping, that’s a big set of red flags. That also means that they will have trouble managing money.
  • Social Isolation.Are they all alone? Then they won’t have the support of a network of peers, who could warn about scams.

Recognize the signs

The signs are of course numerous and varied, but keep in mind that there are many ways in which the behavior of the perpetrator of the fraud or exploitation of the elder mimics that of a perpetrator of domestic violence.

  • Use and abuse of control of the elder’s finances, such as taking, misusing, or using without the elder’s knowledge or permission their money or property;
  • Forging, forcing, or using deception, coercion or undue influence to get an elder person’s signature on a legal document – this could include signing over title to a home or other asset, or a power of attorney or a will;
  • Forging or otherwise forcing, or using deception or other inappropriate means to misappropriate funds from a pension or other retirement income, to cash an elder’s checks without permission or authorization;
  • Abusing joint signature authority on a bank account or misusing ATMs or credit cards;
  • Exploitation through a fiduciary relationship – such as an agent under a financial power of attorney acting beyond the scope of the agent’s authority, or improperly using the authority provided by a conservatorship, trust, etc.
  • Misleading an elder by providing true but misleading information that influences the elder person’s use or assignment of assets, persuading an impaired elder person to change a will or insurance policy to alter who benefits from the will or policy;
  • Promising long-term or lifelong care in exchange for money or property and not following through on the promise, overcharging for or not delivering caregiving services; and
  • Denying elders access to their money or preventing them from controlling their assets or gaining information about their assets.

Keep in mind that neither of these lists is comprehensive or exhaustive!

Report suspected abuse, exploitation or fraud

If you aren’t sure who to call and the situation doesn’t require a 911 call, use the National Center on Elder Abuse’s resource page to determine who to call.

The only way we will get a better handle on the extent and pervasiveness of elder financial abuse and exploitation is to become more familiar with it so that we know how to ask those whom we seek to protect.

© Barbara E. Cashman 2017   www.DenverElderLaw.org