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.

 

May is Elder Law Month!

May is Elder Law Month, so today’s post will commemorate this effort to draw the public’s attention to the legal problems of the elderly.  Because it serves the population of elders, elder law is a broad practice area and often overlaps or intersects other areas of law practice – like disability law, government benefits, discrimination and criminal law.

Elder law is also a niche practice area because it involves working with elders and an aging population in different areas of the law.  Many of us work with elders who have physical challenges, some cognitive impairments and other difficulties, and we are together charting a new course for extended longevity and engaged and dignified elderhood.  From my own perspective, working with elders gives me some unique and rewarding opportunities to work with people.  I often provide counseling – as many other types of lawyers do, but counseling in elder law typically involves a number of nonlegal considerations which factor into the mix of legal questions which must be addressed.  To my mind, the best description of this approach is “holistic.”  In short, elder law practice is pretty “touchy feely” and I wouldn’t have it any other way!  It demands well-honed listening skills from the attorney/counselor and requires a cultivated compassion for people and the situations in which we can find ourselves.  Yes, of course I must mention a requisite fluency with the legal concerns in this area . . .  which are frequently changing and evolving and while mostly based on state law, are often impacted by or driven by federal law as well.

The times have changed and many living arrangements of elders reflect this.  Legal challenges for elders and their attorneys are ever changing and developing.

Improvements to quality of life for elders abound, but many challenges remain.  Some of these include:

  • Employment issues and age discrimination
  • Housing availability, affordability and appropriateness
  • Longevity, retirement savings, social security and financial security
  • Health care and self-determination
  • Living longer and forging relationships with loved ones
  • Dignity and freedom from exploitation and abuse
  • Protective proceedings in probate court (in Colorado these are known as guardianship or conservatorship proceedings)

As a member of the National Academy of Elder Law Attorneys, I have access to helpful information on these topics in the form of NAELA brochures which I am happy to share with readers.  Just drop me an email!

On the more philosophical and artistic side, take a look at this ancient mosaic recently uncovered in Turkey which depicts a skeleton and reads “be cheerful and live your life.”  A timeless message to be sure – to be grateful to be alive and to have the opportunity to live one’s own life, and not that of another.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

 

Yours, Mine, Ours and Theirs – What Kind of Estate Plan?

denver elder law

A Waiting Bench

 

Last week I zeroed in on the importance of having in place health care advance directives for blended families and for this week’s fourth installment, I am going to go back to the big picture.  Part of the post-modern impatience which afflicts so many of us is to rush to a solution to a problem which is often not fully identified and consequently, many options which may have more comprehensively addressed the situation are never considered.  This is the old saying “don’t just do something, stand there!”  I offer that somewhat tongue-in-cheek because I know this is foreign to most of us, who are much more comfortable with our roles as “human doings” as opposed to “human beings!”

So let’s consider first the background for this big picture with a questions: what kind of family are you?

I recently executed a will for an elder client who mentioned to me that, besides providing for her five children, she considered in many ways as a son a man for whom she had served as a foster parent.  She had made provision for him with an insurance policy.

There are many different types of family just as there are many different types of families.  There are those “families of origin” which are usually those into which we are born and sometimes adopted.  Then there are “families of creation” – those which we choose by the relationships we have, be they biological children or other children, partners, spouses, extended family and friends.

So, back to the question posed above. . . the first obvious question is:

Are you married?

What kinds of joint or separate assets accounts do you own and how will those assets devolve (legal term for be inherited by) upon your surviving spouse, your children or stepchildren, and others for whom you wish to provide?

Do you have a marital agreement which often helps inform the disposition of property in the event of divorce and/or death?

And if you are not married . . .  then what?

Well, quite honestly – this is where things can get much more interesting.  Where the institution of marriage can provide much clarity as to whom will inherit a deceased person’s assets, a lack of a marriage can create many difficulties in long-term relationships if certain measures are not taken.  Many of marriage’s “protections” are evident in the law of intestacy, set forth in our probate code, which provide a myriad of extras available only to a spouse.  There are also protections which allow a surviving spouse to “take against the will” of the first to die spouse if the surviving spouse is qualified to do so.  (This is somewhat complicated, so I will not explain further at this time.)

Have you and your partner ever “held out” as spouses? Then common law marriage might be applicable.  Contrary to some modern folklore, there is no amount of time alone of cohabiting that is sufficient to support the existence of a common law marriage.

Are you and your partner clear about remaining unmarried to each other? This sounds odd, but there are many reasons couples do not wish to marry.  I know of one couple that chose for many years not to marry simply because they were afraid of (read – unfamiliar with) the legal consequences of marriage on their children’s rights relative to the step-spouse!

Couples will sometimes enter into agreements with each other to delineate the boundaries of their relationship.  Some of these might include: a nonmarital agreement; a living together contract; or perhaps a designated beneficiary agreement.  There are a number of ways in which an unmarried couple can solidify their relationship and many of the legal uncertainties surrounding it by simply executing such agreements.  Of course, before these agreements can be entered into, discussion must be had.

As we Americans are living longer than we ever have, perhaps it is time to think a bit more about our living arrangements and the relationships on which they are based.  More on this later!

© 2016 Barbara Cashman  www.DenverElderLaw.org

Yours, Mine, Ours and Theirs – Health Care Advance Directives

Not quite empty nests!

Not quite empty nests!

 

I am continuing my series of posts on the theme of blended families, adult children and stepchildren, and some of the challenges of estate planning within such a modern context of family relationships.

In my first post, I gave an outline of some of the terrain I would be covering here.  In the second post, I looked at some of the unique questions posed blended family estate planning, along with the potential for conflict if nothing is done to plan.  The last point discussed in the second post concerned differing styles of coping with or managing conflict and the importance of identifying what is important as well as knowing the challenges.  A colleague emailed me after seeing the post, commenting “It’s as if you were listening  to my recent conversation with my husband of 18 months!”

Okay, let’s get started with the third post already!  Here’s a link to some helpful information about stepfamily members and inheritance.    I’m including resources here about inheritance expectations of children, stepchildren and so forth because they are part of the equation, they are the “theirs” which I include in my title for the series.  In my experience working with blended families, the “theirs” is always part of the picture, whether the expectations of adult children are acknowledged as such or whether they are  described and set forth from the parent’s point of view in the estate plan.  Hence my inclusion of that term “theirs” – even if the adult kids are not at the table so to speak…. So getting back the content of this post, let’s consider some of the  “what happens if” and the “what happens when” scenarios in the blended family or some “de facto[i] version of it.

Getting back to my original premise about blended families estate planning having no “template” like the historically “traditional” American family did, it is worth considering first – what kind of blended family are you? Do you have: kids from both sides; aging adult parents; older, established adult children; any special needs children to provide for; an inheritance from a deceased parent or other relative which you wish to keep in your line of descendants; are long term health care considerations important; and lots of other questions.  Most of us like to go directly to problem solving mode when we face a challenge.  What I think is important to consider as a preliminary matter here is holding off on that step until you determine what are the important values which will inform both your individual and your joint decision making.  If you get to problem solving too quickly, there will be likely misunderstandings about the purpose and nature of what was decided and, of course, the utility of such decisions.  I should also add that, just like the rest of us over the age of 18, we should be having these conversations about who we want to make decisions for us in the event we are unable and expressing our end of life wishes to family members and loved ones.

I’m focusing on one particular issue in today’s post – advance directives for health care.  “Advance directives” include two important documents: a health care (medical durable) power of attorney (POA) and a living will.  These two documents work together for the most part, but from my perspective, if you only have one of these documents – execute a health care POA because that document names a person to make decisions for you in the even you are unconscious, unable to communicate or otherwise unable to provide informed consent for medical care.  Remember, health care POAs are, by their nature, what we call in my line of work a “springing” POA – meaning that the agent named in the document is only empowered to act as agent if the health care provider determines that the patient/principal is unable to give informed consent.  An agent cannot give informed consent for a procedure when the principal is otherwise able to provide informed consent.  This is informed consent matter is important, I have previously written about it in the context of the Nuremberg War Crimes tribunal.

I don’t usually like to use fear as a motivator to cause people to act, but a failure to execute a health care POA and name an appropriate agent to make decisions for you can have dire consequences in the blended family context.  A failure to discuss and plan for either the unlikely or the inevitable can result in conflict between the spouse and their step-children.  This is seldom what people want!

With the health care POA, the principal (the maker of the POA) should carefully consider who is the best person for the job – who is the best equipped emotionally to make difficult decisions and who will be able to effectively communicate with all the necessary parties involved.  Usually, if adult children know that this conversation is taking place with a parent and step-parent, there is a collective sigh of relief.  I suggest continuing the conversation at a family dinner or other event, so everyone is informed of who is named as gent and successor agent, who will be in charge of decision-making and how communication will be conducted.  It goes without saying that this should be an ongoing discussion over the course of our lives!

You can imagine that there have been many difficult lawsuits brought where there was no such document in place or plans were not otherwise sufficient.  Family peacekeeping often involves thinking ahead to avoid conflict, and this is just what advance directives can provide for a blended family.  Here is a link from the CDC with many helpful resources, including the American Bar Association’s Consumer’s Toolkit for Health Care Advance Planning.  In future posts, I will be looking at the financial power of attorney and other useful means to manage our longevity and disability.

And in celebration of our glorious sunshine here in Denver (after a lot of snow over the weekend!) how ‘bout a bit of eye candy?  Check out Colossal’s post about “The House of Eternal Return,” a previously abandoned bowling alley in Santa Fe which now houses a brilliantly colored immersive art installation.  Inside the space is a house, complete with a bathroom with a wavy tile floor.  I think the “eternal return” theme goes nicely with the desire of so many of us to remarry.  Here is that oft-quoted statement from Oscar Wilde about marriage:

Marriage is the triumph of imagination over intelligence. Second marriage is the triumph of hope over experience.

That’s all for now, will continue next time with more details for the ongoing discussion. . .

___________________________________

[i] I use the term de facto here to distinguish from de jure blended family.  Most of my posts will covered married persons, but I do not wish to exclude couples who make other, nonmarital arrangements which often resemble marriage, but without its conventions and protections.  Here’s a good description of the difference between the two legal concepts.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

Yours, Mine, Ours and Theirs Part 2: Opening the Conversation

Spring Flowers

Spring Flowers

This article from last June in The Huffington Post cites a Pew Research Center number from 2011 which states that a whopping 42% of American adults have a step relationship – as in step-parent, step- or half-sibling, or step-child.  I suspect the numbers have risen since that study….

It is not surprising that with the large number of remarriages involving children from a prior relationship, some of the basic priorities in estate planning can be much more fluid and complex.  In the title of this series I have added “theirs” at the end of “yours, mine and ours” – and this is for the simple reason that, in my experience, many spouses in a blended family relationship wish to preserve for their own descendants a certain portion of their estate.  In my experience with blended family estate planning, many spouses in blended family later life relationships consider their children’s inheritance as something separate in a way that few people married only to each other and with common children have ever done.  So let’s begin with identifying some of the terrain we will cover.

The Questions. . . .

What are the common goals that both spouses have in mind?

First off is the obvious question – how to provide for your adult children while taking care of your surviving spouse?  Considering things like life insurance, retirement benefits and other available resources can be immensely helpful, particularly when these resources are coordinated in such a way as to meet the common identified goals.  Since I represent primarily older adults with grown children, I won’t be looking at the second family and providing for them along with a spouse as well as from a first marriage?  How do we balance providing for children with providing for the surviving spouse?  Well, I must repeat that lawyer mantra here: it depends.  The fact is – there is no template for the values, choices, or goals of spouses in a blended family and how they provide for their respective children.  Yes, life is getting more complicated all the time it seems, but I would submit that with the exploration of some basic information, many otherwise inevitable conflicts can be avoided or at least minimized!  This is why it is so important to identify these questions that can loom large and cause much anxiety.

The Nature of Potential Conflict . . .

When a couple can identify the goals and values of their planning, developing a strategy for meeting them can become a bit simpler (note – I did not say easy – there is a huge difference between simple and easy!).  Identifying the source of conflict that can arise, which can threaten those values and goas the couple has identified, is a simple but powerful way of bringing more daylight into the conversation.  Talking about personality conflicts, communication styles and how to allocate scarce resources – be they common or separate resources, can have a positive impact on the planning process.  If this all sounds like a bit too much, I would submit that this groundwork laying is imperative and indeed makes for going early on in the process.  Perhaps you are familiar with the expression to go slow at the beginning to go fast later.  Reminds me of a favorite Ella Fitzgerald song!

The Varying Styles of Conflict Among People . . .

Important to consider here are some of the stumbling blocks that many of us place in front of this conversation, as well as those which may arise and otherwise derail a constructive and wanted conversation on this topic.  What I am talking about here is how each of us deals with conflict in terms of how we communicate in the midst of conflict.  There are five basic conflict communication styles:

  • Confrontation
  • Accommodation
  • Compromise
  • Conciliation
  • Avoidance

Many of us do not exclusively rely on a single style here, and that is a good thing!  What the conflict styles can teach us – and how this conversation can enrich and deepen a relationship among spouses – is about values (the first item I wrote about above) and how they shape who we are and how we behave.   Our perceptions and assumptions about who we are, who our spouse is and how the children of the blended family are included in the planning (either directly or indirectly) can be valuable ways to explore the depth of a relationship and chart a course through otherwise troubled waters.

I’m not saying that a plan is going to be 100% foolproof – I would not say that because everything is subject to change.  What I’m saying is that it is better to talk about the elephant in the room, to identify its function for shedding light on our goals and values of the spousal and family relationships we have.

More to come!

© 2016 Barbara Cashman  www.DenverElderLaw.org

Yours, Mine, Ours and Theirs: Estate Planning Challenges for Blended Families

denver elder law

Square in Assisi

 

This is the first of a series I will be writing about the modern challenge of estate planning for the “blended family” – with a particular focus on couples with adult children.  Today’s post will serve as an introduction and overview.

Yes, the days of the “Leave it to Beaver” style family are long gone.  So what has replaced it as the norm?  Well, not much of a norm at all really, which is why so many people pine for the good old days when things were so much simpler!   Let’s face it, we’re living longer and many of us are choosing to be married or coupled for love and not for life and many baby boomers have chosen different routes for their life partnerships than our parents.  There is simply no template or norm for these couples and their families looking into longevity planning, caregiving arrangements or estate planning priorities when it comes to the modern blended family.  This basic fact makes the whole effort just that much more daunting for most of us – but if we break it down into a conversation that has a beginning and a “to do” list based on the priorities identified in that conversation, efforts can be greatly simplified just by virtue of talking about the obvious, the gorilla in the room that demands our attention (or else).

The impetus for this series of blog posts began with a suggestion by one of my colleagues who organizes the Jefferson County Senior Law Day, at which I have spoken about durable powers of attorney and conservatorships for the last few years.  At this year’s event, scheduled for Saturday, June 4th, I have agreed to take on a new topic – on the challenges of longevity and estate planning in the context of the blended family.  (And yes, it’s the same weekend as the Larimer Square Chalk Art Festival.  I’m happy to be sponsoring the square by my artist cousin, Martin Calomino. . . .  I’m sure I’ll be posting some of the pictures from that festival to adorn my blog posts!)

I’ve posted on this general topic before, but I’m going to be looking into this in a much more in-depth manner.  I have looked into some internet resources for blended families with adult step-children.  I was surprised to find a number of good articles.  This article talks about the importance of identifying expectations when adult step children are part of a blended family.  When I work with a couple who have a “blended family” – there is a wide range of possibilities along the scale of what is considered blended.  Sometimes there are common family events in which the is frequent, regular or expected interaction among the adult step-siblings, while other times these opportunities to interact are few and far between.  Here is an article with some practical ideas about what a newly married couple did to ensure that the four adult children (two from both husband and wife) had the opportunity to feel like they were welcome in their parent’s home and included in family activities.  Here’s an interview style article that looks at a rocky start to a closely-knit blended family.

So, what exactly am I going to be writing about in this topical series of posts?

Here’s an overview of my next post:

Identifying Some of the Challenges for the Blended Family- including (1) what are the assumptions that govern a couple’s thinking about their relationship relative to the relationship with their children;  (2) the dangers of pretending that there is no potential for conflict; (3) starting up the conversation about the difficult questions and talking constructively about what will happen if and what will happen when; (4) getting familiar with what the challenges of longevity mean for couples in a blended family; and (5) the importance of estate planning to minimize conflict among members of a blended family.

In later posts, I will be looking at the different ways those challenges of getting started with the conversation and identifying values and priorities can be effectively met.  Rest assured, this is seldom a “once and for all” kind of arrangement – the importance of paying attention to changes in our lives and making the necessary adjustments cannot be overemphasized.  To that end, I will be looking at estate planning – both chosen and inadvertent, in the context of the freedom of testation (writing a will) and freedom from testation (the “plan” that most people choose, which means doing nothing and facing the consequences of the law of intestacy of your state of residency).  I will also be looking at identifying different kinds of property, both testate and intestate as well – in order to come up with a cohesive “big picture” estate plan.  And I will be revisiting the marital agreement and the usefulness of such an agreement to spell out many important details of a couple’s estate plan.

That’s all for now. . .

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

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 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 it 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 relation.  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 Law 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