What’s a Boomer to Do? A look at Continuing Care Retirement Communities

 

dad's gone fishing

dad’s gone fishing

A few months back I had some friends over for brunch.  They were all baby boomers coming up soon on retirement age.  One of them, Mark, encouraged me to write a post about all the continuing care retirement communities (CCRCs) that are sprouting up and what people might want to know about this type of living arrangement.  This is a broad topic, especially for us boomers who love to exercise our independence and self -expression.  Let’s face it, the medical-model of the nursing home, or SNF (skilled nursing facility) as folks in my line of work are prone to call it, is no longer the predominant model of infirm or old-age care.  Some would argue whether it ever occupied that status. This post is about considering options.

Many of us are by nature planners, and retirement planning and estate planning go hand-in-hand, just as does disability or life-care planning.  Maybe there are too many hands here. . . !  My point is that the disability aspect comes into play as a result of increased longevity in our country.  While we are lengthening our days considerably, we have no way of knowing whether our retirement savings will outlast us, nor do we know whether we will need any assistance from others – family members or hired professionals – to help us pay our bills and assist with our day-to-day living.  This topic is huge, so I am narrowing it to just the FAQs about CCRCs.

The American Association of Homes and Services for the Aging defines a Continuing Care Retirement Community (CCRC) as “an organization that offers a full range of housing, residential services, and health care in order to serve its older residents as their needs change over time.”  The focus is not on the medical needs of older persons but rather on helping people maintain a sense of independence and community.  There are still many people who cling to the idea that the only way to maintain their independent lifestyle is to live on their own is a house that may be difficult and even dangerous for an older person to maintain.  The growth of independent living, assisted living and CCRC-type communities attest to the relaxation of that otherwise inflexible approach to an independent lifestyle.

Well, these CCRC’s have been around for many years, even if many of them fell on some pretty lean times over the last decade or so.  Belt-tightening seems to be easing and optimism often appears less guarded these days.  Here’s a recent post about the market boom of a boomer market in assisted living developments.

Many families are undoubtedly going to continue with their multigenerational living arrangements, and you can read my blog post about that topic here.    In the Denver metro area of Colorado, there are several CCRCs.  Each one has different arrangements for how to enroll, pay rent, buy into, and generally become a member of the community.  For the vast majority of us who have little or no long term care insurance, these living arrangement can provide a certain amount of peace of mind.  Check out the AARP’s article about CCRCs here.

What is a CCRC?

A CCRC is a community which is designed for people aged 60+ (the age often varies) and provides a continuum of residence-based care.  Beginning with independent living, one can expect private, low-maintenance housing – as in an apartment or cottage home along with a built-in community.  The “continuing care” part comes into play in the event a person needs or wants additional services like housekeeping, transportation, and security.  You can expect community attracting spots like a fitness center, performing arts center, along with various dining venues.  There are also plenty of activities to keep people socially engaged like classes, field trips and the like.

What about the “care” in CCRC?

As far as the care part goes, this often encompasses on-site care that including assisted living, memory care, skilled nursing, and rehabilitation services.  It is by nature a continuum, designed to offer services in the event they are needed in a nearby setting.  These care include in-home services, assisted living, memory care, skilled nursing, and rehabilitation services.  This can simplify things especially for a spouse of life partner of a person who needs more care and services.

How does someone go about finding an appropriate CCRC?

CCRCs began to crop up as not-for-profit based communities, often sponsored by faith communities or other similar affiliations for people.  Many CCRCs have cropped up in more recent years that are for-profit institutions.  There is a listing of many of these types of communities under the guise of the Commission on Accreditation of Rehabilitation Facilities, and another acronym is CCAC for Continuing Care Accreditation Commission (in case you might have wondered about the nature of “rehabilitation” in the facility) along with important standards to consider.  Keep in mind that there are many types of CCRCs and many homes are not yet accredited and there are different types and levels of accreditation.

Why are the location and setting of a CCRC important?

CCRCs can offer a full-service lifestyle right on campus. This can be very important for a couple to maintain an independent lifestyle but still allow a spouse who may suffer from health challenges to receive care within the community while providing support for a caregiver spouse.  Many residents  appreciate having easy access to greater community amenities such as cultural, recreational, spiritual, and retail offerings. Additionally, residents often choose a location that allows them to maintain close ties with family and friends.

Do I have to rent or can I own a home at a CCRC?

Some CCRCs offer equity, but most do not involve a real estate transaction. If you are looking carefully at these options or considering them for another, read the contract very carefully.  There is no “standard” type of contract for these living arrangements. Many communities offer an entrance fee plan, guaranteed by a contract or residency agreement that entitles residents to occupy their chosen cottage or apartment and use the common area amenities, programs and services. The one-time entrance fee – which is usually partially or fully refundable – also assures residents access to the on-site continuum of health care.   I am familiar with one local facility that had a $10,000 “fee” chargeable to a resident’s move from a two-bedroom unit to a more affordable (from a monthly rent standpoint) one-bedroom unit after the spouse passed away.  Keep in mind there are typically monthly service fees that come into play as well, depending on one’s circumstances.  If you are considering a move to a CCRC, for yourself or a loved one, please take the time to carefully read the contract so that there are no surprises.

CCRCs are a relatively recent development in living arrangements that are designed to encompass different living arrangements in a single community, thereby obviating the need for someone to move to a different residence or facility as their care needs increase.  It will be interesting to see how they evolve in the coming years.

 ©Barbara Cashman     www.DenverElderLaw.org

Conscious Living, Engaged Elderhood and Spirituality

 

Happy Thanksgiving!

Okay, it’s Thanksgiving week, which means many of us will be spending time with family and others on whom we depend for love and support.  It is a perfect time to talk about end-of-life issues and other big questions so important to our living of life. There is also that detail that we’re getting close to the end of the year, which means it’s  list-making time . . . .  As a self employed person, I make every effort to start this in November! So, in this post I’ll combine that conscious living topic with a list.  On the top of  the list for my purposes here is a quote from a favorite poet of mine, e.e. cummings, who observed

unbeing dead isn’t being alive.

Aging and community, makes me think about the topic of aging as a spiritual practice.  Lewis Richmond is an author who has written about that very topic, and he has a great youtube video about this you can watch here. Conscious aging is really about what we do with our lengthening days, what is the purpose of our longevity and how will we spend it?  These are big questions that I’ve blogged about before and will again in the future.  What I like about Richmond’s message is its simplicity.  He defines the spiritual practice of aging as

paying close attention to the things that really matter.

Conscious aging and engaged elderhood can help us get to a place where we want to be at the end of our lives, a place where we are not burdened with regrets in our backward look at our life, our “life review.”  That reminds me of that 1991 Albert Brooks film “Defending Your Life.”  Will we wait till the end, after it’s all over and too late to make changes, or can we live and age consciously and make adjustments as we go along.  The answer is of course as unique as each of us, each of our lives.  Fortunately, if we are inclined to think about making these changes in our lives, there are many models and lots of support.

So, on that topic of living consciously and without regret, here’s an interesting list from an AARP article from 2012.   The author, Bonnie Ware, worked for many years in palliative care (though it sounds more like hospice to me) and so spent time with many folks during the final weeks and months of their lives.  The theme of this article resonated with me as I had recently explained to a couple clients the therapeutic benefits of estate planning and considering one’s own mortality in the story of Alfred Nobel and how he came to fund the renowned prizes named for him.  Hint: he got to read his own erroneously published obituary, and so he could dramatically change the course of his legacy.  Yes, I wrote a blog post about it and you can read it here.    So back to the list. I think this  list can be used as a great jumping off point for the search for meaning in our lives.

1. I wish I’d had the courage to live a life true to myself, not the life others expected of me.

Ware lists this as the most common regret of all.  I think we tend to idealize this and forget that this one requires real courage to live in and to enact during our lives.  We often don’t think about how difficult it is until we sense that we are not on that path to ourselves, which is a path uniquely our own and which can’t be defined by others or external standards or measurements.

2. I wish I hadn’t worked so hard.

The author worked with older people and  noted that “this came from every male patient that I nursed.”

3. I wish I’d had the courage to express my feelings.

This is essentially the courage to become who we already are.  Sounds like I have tenses mixed up – but I don’t!  On that topic of expressing feelings, I think of Dr. Ira Byock’s four things: I love you, please forgive me, I forgive you, and thank you.

4. I wish I had stayed in touch with my friends.

This regret is also about the choices people have made, conscious or unconscious, about how their time was spent.  I liked Ware’s observation under this point: “that is all that remains in the final weeks: love and relationships.”  I think this is an important point that we can be reminded of if we choose to embrace our mortality and the uncertainties of life.  Perhaps it is really all that we had all along, all we had that mattered and when we strip away all the things that we accumulate in our identities, the love is what remains.

5. I wish I had let myself be happier.

Might sound odd, but Ware notes that many folks didn’t realize until nearly the end that happiness is a choice.  This seems to be such a huge secret for so many people.

In closing, I found a nice list of books for older adults, those in the “second half” of their lives here.    I also liked the tab under “mystery” which is offered as a means to develop a heightened sense of wonder in the face of a mainstream reductionist approach to living.  Wonder and uncertainty, the beauty of the present unfolding is far preferable for many of us than the tidy certainties we tell ourselves to explain away nearly every beautiful wonder of this world. I think Ware’s article confirms this in many important ways.  May each of us have a meaningful Thanksgiving!

©Barbara Cashman 2013     www.DenverElderLaw.org

Disabled adults, Special Needs Trusts and Medicaid: the Importance of Planning

Storm near Barr Lake, August 2013

Life can be complicated, especially if you are a parent or guardian of a disabled person who receives government benefits.  If you don’t make any plan or make an estate plan which fails to adequately address a disabled beneficiary’s receipt of government benefits, an inheritance can jeopardize a disabled recipient’s qualifications for needs-tested (income or asset-based) government benefits.  Sometimes a parent’s estate plan will effectively disinherit the disabled adult child, leaving a request encouraging a nondisabled adult child to “do the right thing.”  At the other end is a devise or inheritance left outright to a disabled beneficiary.  This post-mortem planning can create a lot of stress for everyone involved, and it can interfere with the grieving process and put strains on the ties between siblings and other family members.  In my estate administration practice, I have seen both of these scenarios play out.  I don’t recommend either as a viable choice for a thoughtful planner.  So – what are the alternatives?

I recently read the June 2013 issue of Bifocal (a really interesting e-zine published by the American Bar Association’s Commission on Law and Aging), which had a good article about pooled trusts.  These types of special needs trusts offer flexibility for families of modest means in planning for disabled family members.  Read it here.

So what would “modest means” be for purposes of a pooled SNT?  I recently spoke with Megan Brand, executive director of the Colorado Fund for People with Disabilities.  (CFPD is the longest-standing, locally administered pooled trust in Colorado.)  Her rule of thumb for a disabled young adult is to encourage a pooled SNT where there is less than $150,000 set aside for such person’s benefit.  If you’d like to learn more about the different types of trusts and planning for the needs of disabled family members and loved ones, I encourage you to attend the Colorado Guardianship Association’s  next educational presentation on Tuesday, September 10, 2013 at Porter Place,1001 E. Yale Avenue from 8:30 am – 10:15 am.  Megan will present on Pooled Trust, Individual Trust, Supplemental Needs Trusts, Disability Trusts, Special Needs Trusts Income Trusts,  1st Party, 3rd Party… What does all of this mean?  How do they differ? How are they the same?  What trust is the best fit for my client or family member?  Once they have a trust, what can it be used for and how do we actually make the purchase happen?   To register online for this program, click here.

Here’s a link to another helpful article about the importance of planning and considering the impact on SSI and Medicaid qualification of the disabled person.  But don’t be fooled into thinking that special needs planning involves merely trusts!  Trusts are important documents but it is a good idea to look at the big picture and talk with someone (like an elder law attorney) about how best to devise a plan assist a disabled person with financial, medical and personal care planning.  Another good resource is Hal Wright’s 2013 book entitled “The Complete Guide to Create a Special Needs Life Plan.”  I checked it out from my local library.    This book is a thoughtful approach (by a Certified Financial Planner) about how to devise a plan for a disabled child to ensure access to services to meet those special needs to maintain emotional, financial and other important resources.  At the top of his list of importance are the following three components of an estate plan: preparation of appropriate legal documents; establishment of an SNT; and getting guardianship and/or conservatorship status in place.  If you’ve been thinking about what you need to do to put a plan in place for a disabled adult – please don’t wait until it’s too late to plan.

©Barbara Cashman 2013     www.DenverElderLaw.org

Fear and Boredom in Retirement

Okay, at first blush you might think this is some kind of takeoff on that Hunter S. Thompson novel, but no, not at all (just the same number of syllables) – it’s just my sometimes warped sense of humor.  I’m on a roll – I delivered documents to a client for signing today and made jokes about my lack of appropriate “execution” attire to my two witnesses.

A few weeks back I was talking to a retired teacher who lives in my neighborhood.  She mentioned in an offhand sort of way that retirement was boring.  I didn’t really know her well enough to ask a deeper question in response, and the conversation proceeded to other topics.  I think boredom is a big problem for many retired people.  I think of my favorite high school teacher who died several months after retirement.  I know that death soon after retirement is an extreme example of what I ‘m talking about here, but the bigger questions is – what do we do with our time that is remaining?  What is boredom anyway – is it a psychological or emotional phenomenon, a cultural phenomenon – could it lead to an early demise?  I think the answer is “yes” to all of the above.  In the July/August 13 issue of Scientific American Mind article by James Danckert entitled Descent of the Doldrums,  the author (a professor of cognitive neuroscience)  identifies two types of subgroups for the study of boredom in people: (1) agitated boredom in which people tend to rely heavily on external stimulation, where the expectation is that the world is to deliver their entertainment rather than attempting to amuse themselves; and (2) apathetic boredom, which goes by the colloquial term “couch potato” which is essentially disengagement.

The first type, which can include ADHD and traumatic brain injuries tends to be more troubling at least externally  because it can manifest in risky behavior that can lead to disastrous consequences.  But I wonder about the second type of boredom and elders.  Asking oneself “is this all there is?” after reaching the promised land of retirement – only to find it isn’t what it was cracked up to be . . . .can also lead to an early demise but is probably driven more by internal factors.  A 2009 article in the International Journal of Epidemiology concluded that “those who report being bored are more likely to die younger than those who are not bored.” . . . . Finding renewed interest in social and physical activities may alleviate boredom and improve health, thus reducing the risk of being “bored to death.”

So lumping these two articles together, I make the connection that the higher degree of boredom, the greater likelihood that a person would show depressive symptoms and low motivation – an interesting boredom and depression link here – and the increased risk of cardiovascular disease and premature death.

I also found a 2007 article with a similar title interesting   and it discusses the individual differences as well as gender factors (men are more likely to be bored than women) that contribute to the wide gulf of feelings  that are or flow from boredom.  I tend to think (as a mother of teenagers) that the always on, networked environment that surrounds young people and those of us who identify as “digital immigrants” contributes to boredom as an inability to entertain ourselves.  Its implications for being able to relate to other human beings on an emotional level is a topic I have blogged about previously in a GriefLink   post  .

So we can think of many behaviors associated with the state of boredom and many reasons that can contribute to a sense of boredom – but what is it and why should we care?  On a big picture level, boredom is essentially a disconnection from the present tense, being engage in your life as a purposeful activity.  Many of us suffer through jobs we don’t like or find meaningful and we might look forward to that far away notion of our retirement like a ship on the horizon coming to rescue us.  Funny thing is that once many people transition to be retirees, it is as if something flips – our orientation to the present is still distant from our perception and experience of life, even as that ship takes us away from the island, the island becomes the backward-looking focal point against which experiences are measured.  A good recent literary example of this phenomenon is found in the 1983 book “The River Why” by David Duncan.  He writes of a “lifelong dream” that turns out to be hollow and meaningless.

I liked what Robert Sardello wrote about soul boredom and fear in his book Love and the World:

One feels boredom when there is a desire for new experiences, while at the same time new experiences are not allowed to enter.  I feel bored when I want to do something but do not know what to do because the prospect of doing something really threatens old conceptions.  Boredom may be the primary malady of the age.

R. Sardello, Love and the World (2001) at 103.

In some ways, certain forms of dementia are a process of forgetting who we are in our personal identity.  For some people this can manifest as an inability to remember the past as well as anticipate the future –  which means there is only the present moment, with no other relational context.    So – what to do with the boredom and emptiness, the hollowness of interior when you arrive at a place that looked so completely different when it was a far away goal?  This crisis of meaning is a wonderful opportunity to examine a life’s purpose, the journey so far.

©Barbara Cashman 2013     www.DenverElderLaw.org

A Sense of Place and Aging in Place

 

 

 

Isn’t this an amazing Saguaro cactus? A few weeks back I visited Scottsdale Arizona’s McDowell Sonoran Desert Preserve with a friend.  There were many types of cactus and other vegetation, along with plenty of birds.  The saguaro, especially one that gets “giant” status like this one – is truly a survivor of almost impossible odds.  It is nature’s way.  I also saw a couple smaller and younger saguaro cacti which benefitted from a “nurse plant” to a baby saguaro.  These plants or trees shelter the vulnerable saguaro during critical stages of development, and after making the ultimate sacrifice for the saguaro (the nurse plant takes less and less water and nutrients as the saguaro grows bigger and stronger), it stands for years as a tribute to its sacrifice.  Even in a harsh environment such as the desert, there is much cooperation and biological community.

 

On my drive down to Scottsdale, I travelled through the Monument Valley.  Here’s one of my pictures from the Navajo tribal park there.

Monument Valley

The Sentinel

I love this part of the country.  Along the way, I listened to Richard Rohr’s book “Falling Upward: A Spirituality for the Two Halves of Life.” Watch a YouTube with him here.     It is a wonderful book about aging growing and what we can do with the second half of our lives on a spiritual level.  This is a book about what we can come to understand with our aging, maturity and wisdom – as well as how we can come to terms with mortality and the meaning of our life.  The unprecedented number of people in their 80’s and 90’s has opportunities for meaningful elderhood that few of their forebears enjoyed.  The number will be even bigger as the huge wave of baby boomers gets older.  What will we do with this time in our later years?  Will we continue to enjoy retirement as a long vacation or as a chance to reconnect and engage with our community in meaningful ways?  Each of us has a choice to make about this to the extent we are given this opportunity of what to do with our longevity.

While I was listening to Father Richard (he is a Franciscan priest), I thought about the popular notion of “the bucket list” or some to-do list of things that many people agree they ought to see or visit before they die – as if life experiences, unique and personal – are somehow easily boiled down into some generic list of what a worthwhile human experience is. . . .  . !  Rohr’s chapter on the first half of life is about learning and practicing the rules, being a productive member of society and that sort of thing.  Sadly, many people get stuck there and seeing that there are many others in their company – may think that this place is the only destination.  Hence the “bucket list.”  Who writes their own bucket list – or is it a bucket list because it is agreed upon by a group that it is meaningful?  His reference to falling into the second half of life is a place where a person can be freed from the constraints – internal, external, community.  A journey of free fall that is like a remembering of who we are, what we came here to be and to do.

This reminds me of the lyrics of a favorite Enya song – “Pilgrim” (watch a beautiful video of the Hubbell Deep Field photos with the song as audio here ):

one way leads to diamonds,

one way leads to gold,

another leads you only to everything you’re told….

oh pilgrim it’s a long way to find out who you are.

It is a long journey, but as Father Richard explains and reiterates, the second half  is a beautiful journey of freedom which each of us must discover for ourselves.  I would say it is a pilgrimage of the heart, to remember.  So – where is that physical or emotional or spiritual place for “aging in place”?  Is it in a multigenerational home, is it with the support of or under the care of others, or is it with the “independence” we fancy that we have enjoyed throughout our lives?  That is up to each of us to decide – or not, depending on our own inclination.

 

Perhaps the whole journey of life is as a return from exile, the experience of exile – moving away from the known and its sense of belonging.  Redemption is possible when the way toward home is found, through some place of light, through the illuminated darkness.

Could this aging in place provide the opportunity to move beyond one’s constructed self, the identity of who we have become in our accomplishing phase of the the first half of life?  Might this resulting freedom allow one to consider the wholeness of or our sense of place in the world, to reassess our place in the community?  What about your place in the universe, and in the struggle to wake up?  More on this topic later……

 

©Barbara Cashman 2013     www.DenverElderLaw.org

Who is the Real Beneficiary of a Spiritual-Ethical Will?

This title is a bit of a trick question – by ethical will I refer to a nonlegal document, a personalized writing by someone (usually a person who has written a will, as in the legally recognized document) also known as a testament or legacy letter.  It is often characterized as an aid to the estate planning process, sometimes with the assistance of slogans like “pass on your means with meaning”   or “identify your values and not just your valuables.”  So far in my practice I have had only one client, the mother of young children, include an ethical will as part of her estate planning documents.  There is no “form” for this kind of an endeavor – it is as unique as each one of us.

We make meaning in our lives in many different ways, and an ethical will is one means that has been used for many generations and has ancient origins.    From an historical perspective, there are five broad types of legacy letters ethical wills and they include:

1. Explanation. An explanation is most closely linked to the will, and can

explain the circumstances and logic behind an action or choice directed in

the document. It might offer a statement as to personal reasoning for

the will writer’s (a/k/a testator’s) decision to dispose of his/her assets in such a way. The use of

this type of testament remains somewhat controversial because it may be

closely linked to the will and may give rise to misunderstandings which may

create conflict;

2. Expectation. This is a statement – expressed as a desire – about how the

testator would like an inheritance used, to transmit values or guidelines

about how to conduct oneself, or what he or she would like the recipient to

accomplish. These can be particularly useful for parents and grandparents

who desire to pass along their values and indicate their support that such

values continue, and to state them in ways that are personally meaningful to

the writer;

3. Affirmation. These are the words that many grieving family members long to

hear because many of them have a need to know that they mattered to the

decedent. If they didn’t hear such words in life, such healing words in a

legal document may prevent conflicts among beneficiaries;

4. Historical. The historical statement can be a genealogy of family members,

expanded with personal traits, experiences or values, or might explain the history or background of a specific bequest such as a family heirloom or

other prized possession; and

5. Statement of Values. A statement of a client’s personal ethics and values is

often a reflection of his or her own life. Such statements often include

events that formed the client’s character, and can be combined with

historical statements as well.

Generally speaking, clients have the opportunity to think about their lives in the context of transmitting the meaning of their life to another – whether this is a relatively narrow, experience-based kind of wisdom or a broader approach relating to lessons and values.    You can find more helpful information about ethical wills here.

There are many different reasons to consider writing such a document and most would conclude that it is an aid to the estate planning process – even if relatively few of estate planning clients end up drafting such highly personalized documents.    So what is the real benefit to a legacy letter or a spiritual-ethical will?  The benefit is to the author of the document. It offers an invaluable opportunity to consider, to process and write down the important things – ideas, events, values, and other “intangibles” in one’s life so as to transmit to another.  But even if the writer doesn’t end up completing the document, or including it in his or her will, there are important benefits to consider.  Undertaking such an effort creates the space to think deeply about what  a life means, what is important, what you value and what you want to pass on to future generations.  There can be little doubt that the best way of ensuring those values live on is by actually living our lives consistent with such values, but the spiritual-ethical will goes beyond that (and it of course can be no substitute for a life that was lived accordingly to those articulated values).

Far beyond the human’s basic needs is the need to make meaning or sense of one’s life.  Perhaps Ernest Becker was correct when he offered the term homo poetica  or man, the meaning maker, for an alternate name of our scientific classification.  In the middle age of our lives, or perhaps much later at the ninth stage (as identified by Joan Erickson in The Life Cycle Completed), we can gain much from such an exercise, which benefits us likely more than those who read such a document after we are gone.  It can also help those facing terminal illness or anyone struggling with the meaning or lack of meaning in a life, in one’s existence.  Wherever you are in your life, writing a legacy letter or spiritual-ethical will can help process the meaning of your own life as well as validate the importance of love and connection to each of our lives and strengthening the fabric of community.  Each of us is here for a reason and each has something to contribute – writing a spiritual-ethical will can help put together the pieces of a life in surprising and meaningful ways.

©Barbara Cashman 2013     www.DenverElderLaw.org

June 15 is World Elder Abuse Awareness Day

The National Center on Elder Abuse of the Administration on Aging has declared June 15 World Elder Abuse Awareness Day.  Go to this link to find a local activity.   Yes, since this is a “World” day, there is also a United Nations declaration and such commemorations started in 2006 – in case you’re wondering.  The U.S. HHS Administration on Aging suggests three ways to be involved:

(1) Developing an educational program or press conference;

(2) Volunteering to call or visit an isolated senior; or

(3) Submitting an editorial or press release to your local newspaper to create awareness of elder abuse, neglect, and exploitation.

I hope this blog post meets the third criterion!

You can find excellent resources and stay posted on Colorado developments by going to the website of the Colorado Coalition for Elder Rights & Abuse Prevention  and you can sign up for their e-newsletter there.  In my recent visit to the site there was a link to a page entitled “culture change” which addresses person-centered care.  You can click here  for my blog post refresher on that topic and its originator, Tom Kitwood.  The culture change that the CCERAP site describes is about focusing on the needs of the individuals requiring care and those working closely with them.  This challenge is one we face on personal, community, national and global levels with the ever-growing number of elders in our communities.  It forces us to think about how we would want to be treated in similar circumstances.

So on the topic of elder abuse and the vulnerability of a particular group of elders – those experiencing cognitive decline associated with a dementia disease process, I will take a look at Alzheimer’s Disease and Recent Observations from Biophysics.

Okay, I don’t think I’ve ever typed the word “biophysics” but there it is. I subscribe to Scientific American’s email news and there was featured a guest blog post by Frank Ferrone entitled “Dangerous Braids that Tangle in Brains and Veins.”  You can read it here.   This article is about the importance of research, the accumulation of scientific knowledge and connections that can be made at a later date when more research is accomplished or perhaps investigatory techniques, often technological, allow more thorough information to be gathered.  Alzheimer’s Disease is a very particular type of dementia and it is only conclusively diagnosed post-mortem of those who had the disease.  Its calling card is the beta-amyloid protein molecule  which causes the plaques and tangles associated with the shrinkage of brain function. It turns out that these braided molecules share a lethal trait with the deadly molecules associated with sickle-cell disease, which allows both of these molecules to quickly build their housing (polymers) and spread their disease to a wider area.  What Ferrone concludes, hence the biophysics moniker – is that the two diseases [Alzheimer’s and sickle cell], disparate in manifestation, obey the same fundamental rules.  This is what Biophysics is all about, the discovery of fundamental physical laws that govern the behavior of diverse biological systems.   Ferrone’s discovery (made with others), published back in 1985,  was relied upon by Alzheimer’s researchers at Cambridge University for their new discovery.

Biophysics and biochemistry figure prominently in research in dementia – its proper diagnosis, treatment and of course prevention. Interested in the aging process in terms of entropy, mitochondrial decay? Read this excerpt.

All this overlap reminds me of a blog post I did for SoloinColo on The Hero’s Journey, in the Facebook for Lawyers context. . . .  where I described our networked society in the mythological term “special world.” That post (part of a twelve part series) can be read here  and referred to an article by a mathematical biologist.  Perhaps Alzheimer’s research will continue to be a cooperative proving ground in helpful ways.  If research on the disease can promote cooperation in substantial and significant ways and our ideas about identity and functioning are challenged with an ever-growing number of elder-boomers – then perhaps there is hope for us!

Yes, I could publish this post without a poem, but with no shortage of beautiful sources . . .  why would I?  This one (known as II,16) is by Rainer Maria Rilke (yes, he is one of my favorites):

How surely gravity’s law,

strong as an ocean current,

takes hold of even the strongest thing

and pulls it toward the heart of the world.

Each thing –

each stone, blossom, child –

is held in place.

Only we, in our arrogance,

push out beyond what we belong to

for some empty freedom.

If we surrendered

to earth’s intelligence

we could rise up rooted, like trees.

Instead we entangle ourselves

in knots of our own making

and struggle, lonely and confused.

So, like children, we begin again

to learn from the things,

because they are in God’s heart;

they have never left him.

This is what the things can teach us:

to fall,

patiently to trust our heaviness.

Even a bird has to do that

before he can fly.

     From Rilke’s Book of Hours: Love Poems to God, translated by Anita Barrows and Joanna Macy.

Life is uncertain and old age – even more so.  Perhaps old age and its inward pulling-ness is a kind of gravity, a force that we all share but one that isn’t easily recognized or understood.  Is this because we each live our own lives, separately and pulling away, or perhaps as a result of that long-term denial.  How difficult would it be to trust that gravity, that heaviness that we can look at things – our lives and our relationships – in new ways . . .  even in our oldness (or perhaps only as a result of it).

©Barbara Cashman     www.DenverElderLaw.org

Springtime in Colorado: The New Colorado Civil Union Act Part II

In this second installment,  I’m taking a look at how the designated beneficiaries agreement (hereafter DBA) might fare in light of the ability (beginning May 1, 2013) of same gender couple to enter into civil unions or have their civil unions from other states recognized.

 

The DBA became an alternative for recognition of important  rights of unmarried couples,  which included same gender couples, for several rights which were previously available but also included new rights such as: making funeral arrangements hospital visitation and other health care purposes, the right to inherit real and personal property  under intestate succession (for the first of the DBA parties to die), along with a surviving party to a DBA’s standing to file a wrongful death action and  standing to receive benefits pursuant to the Workers’ Compensation Act of Colorado.  The Designated Beneficiaries Act was in some ways an intermediate stop along the way to civil unions, beginning with the Colorado Domestic Partnership Benefits and Responsibilities Act of 2006, Colo. Rev. Stat. §14-15-101.

How does the new Colorado  civil union law  treat couples who have previously entered into a DBA?

There are several important changes to note – I’ll cover three major ones here:

  • (1) a civil union certificate is a “superseding legal document” in relation to a DBA (amending Colo. Rev. Stat. §15-22-103(3);
  • (2) neither party to a valid DBA may be a partner in a civil union (adding Colo. Rev. Stat. §15-22-104(a)(III.5); and
  • (3) entering into a civil union by either party will deem a DBA revoked (amending  Colo. Rev. Stat. §15-22-111 (3)).

The DBA was widely viewed as an important recognition of legal status for same gender couples, even if the language of the statute didn’t address the gender of the parties entering into a DBA.  The primary requirements are that the parties be 18 or older, unmarried, and as mentioned above, not parties to a civil union.  So, what is the future for the DBA?

DBAs can still be used, but it seems unlikely that many same gender couples will utilize the arrangement now that there is a civil union status that is essentially the same legal status as marriage.  So – whither the DBA?  I think the DBA can survive as an alternative to marriage or civil union and potentially as a defense against  common law marriage.  Colorado in one of a handful of states that still recognized the frontier relic of common law marriage.   It is important to keep in mind that there is no common law divorce – that if a couple is legally married, then they may only dissolve their marriage (or civil union) through divorce.  I think the DBA has a future for those couples who want to retool their legal relationship to ensure  some flexibility but without all the consequences of being a “spouse” by virtue of marriage or civil union.  The DBA could help define the nonmarital relationship in a meaningful and significant way.   This remains to be seen, but I think given the exigencies of many later life remarriages, the DBA may have a “second life” as a means of honoring a committed nonmarital relationship for couples in Colorado.

 ©Barbara Cashman     www.DenverElderLaw.org

 

Springtime in Colorado: The New Colorado Civil Union Act – Part I of II

Here is a picture of some physical evidence of springtime from my front yard.  It’s a new home I moved into in the late fall, so I am very happy to see these neighbors!

 

As I walked around Ketring Lake late yesterday afternoon, I was pleased to hear the familiar sound of the red-winged blackbird.  I knew spring had officially arrived.   This spring brings important legal changes in Colorado.

We are reformers in spring and summer; in autumn and winter,

we stand by the old; reformers in the morning, conservers at night.

Ralph Waldo Emerson

Last week (on the first day of spring), Governor Hickenlooper signed SB 13-011 into law.  The new law is titled the Colorado Civil Union Act, and same gender couples can get “hitched” as early as May 1, 2013.  Read the text of the new law here .

Colorado is the fifteenth state to recognize same-sex marriage or civil unions (in which partners are treated as spouses) and is evidence that we have come a long way since Amendment 2 in 1992.  This post will be split into two installments – the first one to take an overview look at the new law, and the second to explore it  in more detail and look at the impact on the designated beneficiaries law.

With the passage of SB 13-11 and its signing by Governor Hickenlooper last Thursday, same gender couples will be allowed to become partners or parties to a civil union (I prefer to use the term “get hitched”), and these partners will be treated as “spouses” for all intents and purposes under the law of Colorado.  The statutory language of the Civil Union Act is careful to not create or be construed to create a “marriage,” which is defined by the Colorado constitution (this was Colorado Constitutional Amendment number 43, voter approved in 2006) as the union of one man and one woman.  Yes, you can guess that we estate-planning lawyers who get together for our monthly Probate Day at the Colorado Bar Association will be working on revamping our forms.  There is a recently formed subcommittee of the Orange Book forms committee that will be looking into revising our Colorado estate planning forms book so that the meanings and usage of the term “spouse” are consistent.  Persons who get a civil union license certified by the clerk and recorder will also be subject to the same procedures for dissolution as spouses.  Taxes are another matter, however – the statute does not contain authorization for the filing of joint state taxes and federal law does not allow such joint filing.

This is really a sea change for same-gender partners, who previously had to forge their own legal relationships to provide evidence of their relationship and protections for each other and their family because the law in many respects treated them as “legal strangers.”  The Civil Union Act changes all of that.

Another important development is taking place right now.  Oral argument in the Windsor v. United States case before the U.S. Supreme Court has concluded.  You can read SCOTUS blog coverage about it here.  That suit challenges the federal Defense of Marriage Act (DOMA), and the Supreme Court’s decision can impact the rights of same gender couples under federal law in many important ways.  I mention the DOMA law because Colorado was one of the states to amend its constitution to recognize “marriage” as between one man and one woman.  Colorado Const., Art. II, sec. 31.  This was as a result of Colorado Constitution Amendment 43, voter approved in 2006.  Its definition of marriage precludes use of marriage and necessitates “civil union” and also allowed for Colorado to decline to extend full faith and credit to a same-sex marriage from another state.  The DOMA accomplished this by allowing states to choose to not extend full faith and credit to another state’s legally recognized marriage.

Let’s take a look at the Civil Union Act for an overview.  It authorizes any two unmarried adults, regardless of gender, to enter into a civil union.  In order to accomplish this, parties wishing to enter into a civil union will apply to the county clerk and recorder for a license, and once the license is obtained, it must be certified within thirty-five days and returned to the clerk and recorder within sixty-three days of certification.  This is the same timeline as applies for marriage licenses and recording time solemnization.  The persons qualified to certify a civil union are the same as those qualified to solemnize a marriage and include the partners themselves.  With regard to dissolution of a civil union, the laws of Colorado will apply to civil unions entered into in Colorado as well as to those recognized by this state effective May 1, 2012.  Partners will have to follow the same rules of dissolving their marriage as married persons.  Indeed, the third stated purpose of the Civil Union Act is to offer same-sex couple the equal protection of law and give full faith and credit to recognize relationships that were legally created under another state’s law – similar to a civil union but which would not otherwise be recognized under Colorado law.  Important legal principles of extending full faith and credit to another state’s laws as well as comity factor importantly in this new law.

To conclude this first installment, let me focus on the estate and elder law implications – here are a few things to note:  Title 15 of the Colorado Revised Statutes  (Probate, Trusts and Fiduciaries) references to spouse will include partner or party to a civil union; note that “spouse” will include partner in the Colorado Medical Treatment Decision Act (Colo. Rev. Stat. 15-18-101 et seq.); the spousal privilege under evidentiary rules will extend to partners to a civil union; a child born during a couple’s civil union will be the child of both partners; and partners may enter into marital agreements (commonly referred to by the slang term “prenup” – but Colorado recognizes such agreements after becoming spouses – which would also include a “postnup”).

©Barbara Cashman     www.DenverElderLaw.org

Death and Taxes, Sure . . . . but what about Death and Facebook?

I liked this link I found on mashable  thanks to the Wills, Trusts & Estates Prof blog I subscribe to.  Entitled “How 1 Billion People are Coping with Death and Facebook,” I think the article is more about how Facebook provides both a new means of grief expression and support, and also another avenue for death denial. . . .

I think of my dear late friend Matt, a collaborator on several bar association projects with me, as well as my only ever “tech support” guy.  He is still with me on Google +, which I find comforting.  Where do we go after we die?  That is one of the “big questions” in life. . .  This post is concerned with a slightly narrower issue that looks at the different levels of “immortality” online.    Speaking of immortality, and what you might want to be remembered for, here’s a link to a story about Billy Ray Harris, a homeless man in Kansas City, who returned a diamond ring to a woman who mistakenly put it into his change cup.   Just a bit of gratuitous feel-good stuff for this post.

A law blog I check periodically on digital estate planning issues is www.digitalpassing.com .  The blog’s author, Jim Lamm, posted on Feb. 18th about the digital afterlife from a legal perspective.  There are several commentators who are dealing thoughtfully with these questions that are breaking new legal ground.

Colorado doesn’t yet have a part of our probate code amended to consider access to and rights in digital assets for agents under durable powers of attorney, those acting on behalf of incapacitated persons and personal representatives of decedent estates.  All of these folks would be acting as “fiduciaries,” and  there is effectively a gray area surrounding rights, responsibilities and access to property and accounts.  The Uniform Law Commissioners, the same group who brought us the Uniform Power of Attorney Act (adopted by the Colorado legislature and in effect since January 2010), are working on this problem.

What makes these questions particularly challenging are twofold: the practical difficulties relating to finding someone’s password or getting around their encryptions (for some this is extremely difficult), and couple these with an interesting combination of contract law, state law, and federal  law relating to the internet, using data of another and privacy – and this can be quite a challenging mix!  I’m not going into those services which promise to keep your passwords safe, allow for some kind of a plan for internet mortality in the event of a person’s demise; or one I saw recently that promises to wipe your internet footprints.

Okay, so what about other online presence and persona besides Facebook, what about writings on blogs (sometimes these become books) and other intellectual property? Famous authors can retain licenses for the original works, but the bigger issue for some is how long does that legally protectable interest or copyright last?  Here’s a blog post about a federal court proceeding by a scholar against the Estate of Arthur Conan Doyle (author of Sherlock Holmes).  Copyright law is governed by federal  law, and there have been a few authors of works who were obscure and penniless during their lives but won posthumous acclaim and their estates became wealthy.  Copyrightable works include writings (literary works), music, choreography, audio and video (or other “moving pictures) recordings. Under current law (the 1976 copyright act and the Sonny Bono Act) it looks possible to extend copyright protection for seventy years beyond the life of its author or creator.  This is where Mickey Mouse, Superman and lots of other famous characters work their way into federal laws. . . .  Protection is extended to “original works of authorship fixed in a tangible medium of expression from which such works can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device.”  17 U.S. Code sec. 102.

Digital assets in the probate context (here I mean as used by an agent acting under a power of attorney or by a personal representative in a decedent’s estate) are at the intersection of federal and state law and can involve contract and property rights along with potential criminal implications when a person acting on behalf of another may be violating the agreed upon terms of use for a particular account.  Stay tuned for future posts on this timely and interesting topic.

©Barbara Cashman     www.DenverElderLaw.org