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

Funerals and the Meaning of Life

I went to my Uncle Frank’s inurnment today at Fort Logan.  A Korean War veteran of the Navy, he served for many years as commander of the Wilmore-Richter American Legion Post 161 in Arvada.  The Legion is an amazing community and the turnout was huge.  I commented to my cousin that all of them are also his family, they were his community for so many years.

So what is a funeral anyway?  It is a rite of passage of course, that others make possible for the deceased.  In Jewish tradition , it is an honor to shovel the earth over a casket because the person for whom one does the shoveling cannot so to speak “return the favor.”  This is a reminder that there are many things in life we do for others that they perhaps could not do for themselves.  Sometimes we are motivated by compassion or empathy, thinking “I would want someone to do the same for me if I were in that situation.”   Other times we just do things for no reason except that it is the right thing to do, and we most likely feel good about doing it.

This takes to me the essence of community in the funeral context – going beyond the transactional aspect of life, or a social bargain based on a tit-for-tat, scorekeeping or checklist sort of assessment of a person’s life.  How often do we hear about a bucket list . . .  whose bucket list is it anyway?    When a person dies and survivors grieve and mourners mourn, we feel the loss of that person as an individual and as a member of our community.   This love that causes the grieving is proof of the existence of life and relationship, I think this is the real proof that someone lived and was loved.  Whether you have a belief or disbelief in an afterlife, grieving is proof of love, proof that someone touched your life in a way that can be felt and reckoned only by the heart.  The love never dies, it most definitely has an afterlife.

A funeral, memorial or celebration of life causes us to slow down and reflect on that person’s life and our own lives as well and to look for meanings in our lives as we construct meaning for the life of the deceased.  This aspect of funerals is the same across the globe.   Okay Barb, but The Meaning of Life? Surely I’m referring to the Monty Python film . . .  I am after all a ” huge fan of their work.”  I was thinking about the three family members whose cremains are at Ft. Logan and also about all those baby boomers reaching a “certain age.”  What will the meaning of the passing of the huge numbers of baby boomers mean for our children and grandchildren.  Will it be any different from that of the Greatest Generation or the Silent Generation.  Undoubtedly it will.  Is up to the deceased to make meaning of their own life?  I think not, that is the task of the living.  It does give the living, the surviving community and family members an invaluable opportunity for reflection.  This reflection can operate on many levels: It reminds us of our own mortality and the fragility of life; it can focus our attention on the time we have now and not leaving unsaid those things we might regret leaving unsaid (there are Dr. Byock’s four things I have previously blogged about, among other conversations); we have an opportunity to adjust our self-identity and to “be” in ways that are new and sometimes challenging indeed.

A funeral is a rite of passage for everyone, all the survivors – if we simply stop to take some time to reflect and ask some questions.  For most people, these are not easy questions to discuss, but in my work as an estate planning attorney, one of the questions I ask concerns funeral arrangements.

Should Anyone “Practice” Grieving?

 

 

 

 

Well, what kind of a question is that?  I was thinking about a friend who I knew was “grieving” the outcome of the election.  Then I saw GriefLink’s post today about grief and the election results.  You can read it here.   So why do we tend to associate the grieving process exclusively with death?  I don’t know, but part of the challenge with grieving, recognizing it, making space for it and honoring the process as we individually experience it and as others experience it – is to sufficiently recognize what it is.  I have written about Kuebler-Ross’s five stages of grief before, but here’s a review:

1. Denial.  We may dig in our heels and simply refuse to accept that things have changed.

2. Anger.  We might rant and rave at people, institutions, God, or life in general for delivering us a package that we didn’t want.

3. Bargaining.  We make try to “cut a deal” with life, the universe, the “powers that be,” in the hope of getting what we really want.

4. Depression.  We might get the idea that nothing really matters, that everything is futile, when we deeply feel our helplessness.

5. Acceptance.  We might arrive at this stage only after each of the above stages has been fully experienced, when we are finally ready or able to see.

The five stages of grief apply not only to death of a loved one, but to death of a pet, but changes in relationships like marriage, a job or career, a change in health status or well-being, or some cause or effort that was held dear that did not come to fruition.   We practice this death and dying things every day, whether or not we are aware of it.  The quote from the Greek philosopher Heraclitus comes to mind: “You can never step into the same river twice, for new waters are always flowing on to you.”  And why would I mention just one quote from Heraclitus when I could also say “there is nothing permanent except change.”  We practice grieving every day, and sometimes it helps to recognize that for ourselves, but more importantly – to see it in others, when they are grieving.  Sometimes simply witnessing can be enough for another person to help get through this often difficult process that follows the heart’s timeline and not a chronology that an intellect can measure or otherwise quantify.

So what is important about being with someone who is grieving?  Presence.  Presence is a form of compassion.  Another suggestion – this one from Henry James (I’m a huge fan of his brother William James) who wrote “three things in human life are important:

The first is to be kind,

the second is to be kind, and

the third is to be kind.

So in the meantime, I think it’s a good idea to follow the advice of Kahlil Gibran: “be like the flower – turn your face to the sun.”  If you’re not sure which direction the sun is, let your smile find it.  Smiling a little bit more will lengthen your days and make you a happier person.  Yep, there’s a Ted video to prove it!  Watch Ron Gutman’s presentation here.

I’m grateful for the little things, which reminds me of another awesome Ted video!  Neil Pasricha will jump start your thinking about change and gratitude!  Nope, nothing “legal” in this post, except that I help people work through many of these changes, which often involve grief – every work day.

©Barbara Cashman     www.DenverElderLaw.org

 

Aging in Place and Person-Centered Care: It’s About Love: Part II

 

Last week I blogged about the connections between aging in place (as part of a community), person centered care and. . . .  love, and so here’s the next installment.  Aging in place is probably the most desirable “lifestyle choice” for elders because it holds people, even as they age and may become less capable on living without assistance, in their identities.  What I mean by this is that as a person ages and may become less “capable” of managing themselves and things on their own, there is a continuity of personhood that is allowed to remain intact by means of remaining in their community of choice (as opposed to a community of necessity).

What’s love got to do with it? Yep, here’s the Tina Turner video to go with that question.  But seriously, I think love has a lot to do with our identity, aging and how we maintain our connections with others and cultivate new ones as we age.  I have done a blog post about love before, and my “love agenda” as it were was made public in a five-minute Ignite! program I presented back in June 2011 at a Denver Bar Association event (it was called “Letting Love Out of the Closet).  So following on the previous post, where I referred to Joan Erickson’s elderhood as the ninth stage of human development and “gerotranscendance,” I wanted to take a look at how love and connections to others between the generations benefits us all.

So here’s the big question: What is the value of old age; or phrased differently – is getting old worth an entire lifetime to attain?  Where I part ways with Joan Erickson’s ninth developmental stage is with her focus on doing at the expense of being.  Is the focus of our elderhood on continuing on as before, as we have always done, or is there some other wisdom or consciousness element that can be embraced – one that is distinctly part of “being” that is apart from “doing” and “doingness.”  If we reach elderhood and we are still stuck in the socio-cultural context of personhood that is focused on the physical aspects of life, capacity to act independently as a rights-bearing individual, and our psychological approach is still focused on the individuality or unconnected autonomy, aging and elderhood is seen as one long series of losses.  What is there to be gained from it?  If we look at the higher levels of perceptions, the social connections people have in communities and transcendent meaning (moral understanding, meaning in suffering, spiritual beliefs).   There are several studies (some of them a bit controversial) about links between religion – especially being part of a religious community and longevity.  I am more concerned with the “successful” aging aspect, so I am thinking about Paul Wong’s chapter “Spirituality, Meaning and Successful Aging,” in the 1998 book “The Human Quest for Meaning: A Handbook of Psychological Research and Clinical Applications” at 366.

So what about the tension between the doing and being aspects? I liked what I read in ”Living Your Unlived Life,” by Robert Johnson,  a noted author and Jungian analyst, and Jerry Ruhl (Tarcher: 2007). In the fourth chapter of this book, “Learning the Timeless Art of Being,” Johnson examines the art of slowing down as a continuation of answering midlife’s call to “greater wholeness.”  Focusing on being means saying no  to some of the old ways, which are based on the fear that if we slow down – we’ll just get “run over” (read: rat race continued).  Some of the adages that illustrate this come to mind – “don’t just do something, stand there!”  (the White Rabbit in Alice in Wonderland) and “by standing still we overtake those who are running” (from the Upanishads).   Johnson describes an exercise in his book (at 75-77) he calls “the doing/being shuffle,”   designed to bring focused awareness of being (as opposed to mindless doing) into daily activities.  It doesn’t matter how late we come to the practice or art of mindful living, it is always available to us!  An important precursor to successful elderhood then is that “middle passage” of midlife between youth and old age.  This is where we are met with the choice:  will old age be viewed as a series of declines in productivity, usefulness and personal relevance or will it be seen as an opportunity to focus on consciousness, spirituality and social connectedness and relevance to other generations?  The latter view places on the shoulders of older persons the assumption of responsibility for preparing the next generation and nurturing them in ways that only elders can.  This difficulties of growing up as we grow older and taking responsibility are described by Robert Bly in his 1996 book “The Sibling Society.”

As our culture faces the largest number of elders in history, I think it is worth taking a longer look at what it means to be old, to be an elder, with an eye to restoring and maintain the dignity of life and the mystery of it, including the mystery of love.  Why are elders important to younger people?  I told someone the other day that I hope to be an old person some day.  What are the different meanings of that?!What does it mean to become and elder?  Is there any “initiation” for elderhood?  What is the nature of today’s intergenerational social contract?  I know, that is just too many rhetorical questions!  So, I’ll end with a quote – actually “a blessing for old age” by the late John O’Donohue, from his 2008 book “To Bless the Space Between Us” :

May the light of your soul mind you,

May all your worry and anxiousness about becoming old be transfigured,

May you be given a wisdom with the eye of your soul,

to see this beautiful time of harvesting.

May you have the commitment to harvest your life,

to heal what has hurt you, to allow it to come closer to you and become one with you.

May you have great dignity, may you have a sense of how free you are,

And above all may you be given the wonderful gift of meeting the eternal light

and beauty that is within you.

May you be blessed, and may you find a wonderful love in yourself for yourself.

©Barbara Cashman     www.DenverElderLaw.org

 

The 2012 Election Year and Elder Law

Elders in our population have historically been a consistent force of turning out in great numbers to vote.  As our population gets older, however, difficulties with mobility can have an impact on that visit to the polls.  I grew up, like most baby boomers, with excellent role models of voting from both my parents and my grandparents.  My paternal grandmother served as president of the League of Women Voters in Kansas City.  What are some of the challenges older people at the polling place face now? Many disabled and elderly voters face new difficulties at the polling place.  Read more here.

In terms of hot-button issues, probably the #1 is Medicare (no surprise, or perhaps it’s tied with Social Security).   Here’s a good article from the New York Times that discusses some of the changes proposed by Mitt Romney and his running mate.      This article refers to “Mediscare tactics,” a recurring election year phenomenon.

If you’re looking for more information, this recent post in Scientific American titled “Where the Presidential Candidates Stand on Medicare and Medicaid” is helpful as well

If you’re tired of all the polarity, intransigence and name-calling, you might consider looking at Project Vote Smart here.     They have email updates you can subscribe to as well as a blog.  Visit this site for bios, voting records, positions on important issues, ratings and the like.

And what about protected persons (those subject to a guardianship) and voting rights? Well, they can still vote!  They maybe institutionalized and may have lost many of their civil rights over their day-to-day decisions, but they have not been disenfranchised!

This year  will be interesting, as it is very evident we have come a long way from the early days when Florida Congressman Claude Pepper was the voice of the elderly voting bloc in Florida and served as an eloquent spokesman for so many elders nationwide.  The population of elders is much larger now, encompasses a wider range of ages and is politically more diverse than ever.

What is interesting is that as new requirements with voter registration and voter identification are being tested in many states, our population continues to age and the challenges of mobility, disability and ease of voting will continue to grow for this population.  This trend will continue into the future, as the numbers of the oldest of the old continue to grow as does the number of baby boomers going into retirement.  For further reading, check out this recent report from the Brennan Center for Justice at NYU law school here.     If you need to check and make sure you are registered to vote in Colorado, click here.  Whatever the weather – get out the vote!

Legal and Financial Considerations for Nontraditional Relationships part 2

 

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

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

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

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

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

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

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

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

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

 ©Barbara Cashman, LLC   www.DenverElderLaw.org

Mistakes People Make with Medicaid and Long Term Care

  1. Thinking it’s too late to plan.

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

2. Giving away assets too soon.

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

3. Ignoring important safe harbors created by Congress.

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

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

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

5. Applying for Medicaid too early or too late.

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

7. Confusing IRS tax rules with Medicaid rules.

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

8. Not getting expert help.

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

©Barbara Cashman, LLC  www.DenverElderLaw.org