Durable Powers of Attorney: Law in a State of Uncertainty

 

Reba's Gaudi Mosaic

 

I love this picture of Gaudi mosaics.

It was taken by a friend on a recent trip to Spain.  Why the mosaic theme?  Because the field of  elder law, and the drafting and use powers of attorney in particular, are emblematic on our individual reliance on one another, especially during times of anticipated or unanticipated vulnerability.  By the time we reach mature adulthood or “elderhood,”  our lives typically appear to be mosaics of experience, identity and relationships.  Our interconnectedness and reliance upon others is certainly indicative of a mosaic pattern.  So – you’re wondering, okay Barb, what does THAT have to do with durable powers of attorney?

Durable powers of attorney have come a long way over the last thirty years or so.  This is a good thing because we have an ever-growing number of baby boomers swelling the ranks of “older Americans.”  Most boomers aren’t yet ready to use the term “elder law” as a field of law applicable to them!  Durable powers of attorney (POA for short) is one of my favorite topics to talk and write about because there are so many different directions for a discussion.  I’ll focus on the general financial POA for this post.  In Colorado, we don’t technically need to refer to POAs as “durable” anymore because under the Uniform Power of Attorney Act that became effective January 1, 2010, all powers of attorney are durable unless stated otherwise.  I’d like to start with some questions:

  • What is the purpose of a POA – is it just a preventive tool to keep people out of protective proceedings in probate court?
  • How does drafting a POA both protect and make more vulnerable a principal who is naming an agent to act for her?
  • When does the principal agent relationship become “official” and how do we manage problems/difficulties/challenges to a POA’s use?

I could go on with lots more questions, but suffice it to say they would by and large have a single answer:  “it depends . . .”  How typical for a lawyer to respond in this way!    The bottom line for POAs and what makes them so “interesting” (read: challenging)  from an elder law attorney’s point of view is that our legal system does not tolerate ambivalence very well.  Our system is grounded on the values of predictability, consistency and logic.  In many important ways, the legal and practical implications and applications of a POA are inherently unpedictable.  Why is that?  Because life itself is uncertain and unpredictable and a POA is in this respect a “life management” tool.  Incapacity for older people may or may not be considered in the same category as mental illness in terms of how the legal system treats individuals, but for probate court purposes, there are few major differences.   So are you saying that old age is like a mental illness Barb?!  Not exactly.

As a drafter of POAs as preventive and useful documents, I have to say that the document is inherently fraught with difficulties – some of which include questions like:

  • does the document actually confer power on an agent? (Note that in Colorado there is not a requirement that a person being considered for a conservatorship be “incapacitated” as is required for a guardianship.)
  • how will the holder of the power – the agent – behave? (will they be kind, conscientious and respectful or wield absolute power in a self-serving way?)
  • what will happen to the principal when the agent begins acting on her behalf?
  • who will be watching to ensure that the power is not abused or used for improper purposes?
  • and how will abuse be detected?

A POA document is a powerful tool that can be used for either proper or improper purposes, by someone employing it for its intended purpose as a precision tool in the event of emergency, or as a blunt instrument to gain control over another’s finances and life.  Attorneys who draft powers of attorney owe it to their clients to explain the document and how it can be used and potentially abused.  It’s true that it is relatively easy to get a POA document “off the internet,” but will you know if it is valid for its intended purposes according to the the law of the state in which you reside?  What about how to use it?  Don’t forget that the most powerful tool to prevent abuse of a POA – whether it be a result of inadvertence, incompetence or bad intent – is education.  This is where the elder law attorney comes in. . . .

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

What is “aging in place?’  Take a look at the 2012 Senior Law Handbook published by the Colorado Bar Association for some further information about this.     Aging in place means aging, coping with all of life’s challenges and frailties that the aging process can bring, while living in a home and supported by family and friends and community.  This “new” approach is quite old-fashioned, hearkening back to the days when elders lived among the general population, before “retirement communities” and a medical model for institutionalizing the sick and frail elderly.  But wait, there’s a lot more eighty- and ninety-year-olds on the planet, and what about those baby boomers?  Well, I’m not proposing any earth shattering solutions in this post; I’m just suggesting looking at a few things a bit differently.

The Colorado Coalition for Elder Rights & Abuse Prevention published their April-June 2012 newsletter  with the headline “Transforming the Culture of Aging: Self Directed Living in All Settings.”   Person-centered care for people suffering dementia is especially important in trying to hold the person “in their identity” their essential personhood, and not just putting them away in a place where they will be safe.  Person-centered care was developed by the late Tom Kitwood, a British physician who had some revolutionary ideas about dementia and how to support people suffering from dementia.  Read more about him here.    Bottom line for Kitwood’s approach is that personhood, human dignity – is unique and sacred.  This is a far cry from what many in our youth-glorifying and death-denying American culture espouse.  We tend to focus on the losses that an elder suffers over the course of their inevitable physical decline, and pity their loss of autonomy – regardless of the fact that our individual “autonomy” is largely a fantasy anyway.  Here’s a link to information about person-centered care and gaining in place relevant to dementia sufferers.    So what are we missing here?

We can start with looking at elderhood as a stage of human development, ala psychologist Erik Erickson.  His wife Joan Erickson published an extended version of “The Life Cycle Completed,” (published by Norton  in 1998), including her own chapter entitled “The Ninth Stage.”  She notes at the beginning of the chapter:  “we must now see and understand the final life cycle stages through late eight- and ninety-year-old eyes.”  Erickson at 105.  She characterizes “old age” as a stage of life that is focused more on loss (“dystonic elements”) at the expense of self-growth and expansion (“syntonic qualities”).  Erickson asks the question of how it is possible to send elders out “into the world” they had previously inhabited and into a facility to have physical (medical) care and comforts met?  This is a good moral question that we must continue to ask ourselves.

This standard of care is the prevailing standard for care of protected persons, incapacitated individuals for whom it is necessary for another person to make decisions about daily care.  These types of decisions are known as “substituted judgment” and are recognized by the law in both probate proceedings (for a ward or protected person in guardianship proceedings) as well as by agents and proxy decision makers under state law.  The “best interests” standard applicable to substituted judgment is touted as an objective standard.

So then why resort to institutionalization?  Institutionalization is less prevalent than it used to be, but why is it necessary? For a number of reasons obviously – among which there may be no alternatives.  From my personal experience visiting residents in skilled nursing facilities over the last seven years (as a volunteer para-chaplain), I can tell you that the people I see are there because they want to continue to live and the facility is their only viable option to provide necessary life-sustaining care.  Are there steps we can be taking as a society to more fully re-integrate the old of the elder population (people over 80)?  Absolutely.  Erickson proposes more parks in which elders can meet.   The next question of course is whether there will be an opportunity for them to be heard, to be recognized as bearers of wisdom, still having something to contribute.  Will anyone ask them or want to hear their stories?   This is the biggest hurdle as far as I can tell.  Why?  We have no effective model of “elderhood” in our country!

Joan Erickson focuses on the “doing” part of elderhood – to rise above, exceed, outdo, go beyond , to continue to create so that elders can continue to “become” – which she identifies cleverly as gerotranscendance.  Erickson at 127.  Yes, the “dance” is intentional.  How beautiful!  I have difficulties with her exclusive focus on the “doing” and “making” part of becoming who we are – what about just the “being” part that is really the focus of person-centered care – what does that look like?

Well, I’ve nearly run out of space for this post, but I will mention that this will be continued.  I’ll be taking an in-depth look at a book I’m reading right now called “Elders on Love: Dialogues on the Consciousness, Cultivation and Expression of Love,” by Kenneth Lakrits and Thomas Knoblauch, Parabola Books 1999. I end with a quote from much-loved author Paulo Coelho:

The wise are wise only because they love.

More about love and wisdom, particularly the wisdom of elders – in a subsequent post.

©Barbara Cashman     www.DenverElderLaw.org

What does living with Dementia Look Like?

I recently read a blog post written by a woman in Florida (she blogs under the name “stumblinn”) who has been living with young onset dementia for fourteen years.  Her post of May 8, 2012 was entitled “Dementia and spirituality” and you can read it here .  She writes

I am glad that I have never seen myself as a victim of or suffering from dementia.   Having dementia is not a choice for me, but not suffering from it is.   We suffer when we resist what is, see what happens to us in life as unfair.   When we remain aware at all times that everything that happens is an opportunity for learning and spiritual growth, then there is no suffering.    (That does not mean there are no challenges to face as without them, there would be no growth.)

I found her comments instructive.    It reminded me of an article I ran across a few years ago published by Baylor University.   I liked this article because it considers dementia in the spiritual context and asks “what is it that makes us who we are?”  It is illustrated with a picture of a quilt to demonstrate how the story of each of our lives is connected to others’ lives.  Dementia may rob people from remembering their “story,” but others can help them remember by reinforcing each individual’s uniqueness and honoring the person’s “be-ing” not just their “do-ing.”   I’ll quote Rabbi Abraham J. Heschel’s comments at the White House Conference on Aging, back in 1971:

Older adults need a vision, not only recreation.

Older adults need a dream, not only a memory.

It takes three things to attain a significant sense of being: God, a soul and a moment.  And the three are always there. 

Just to BE is a blessing, and just to LIVE is holy.

The Alzheimer’s Association has a list of resources (articles, books videos, etc) under “Spirituality and Dementia” that is available here.

The U.S. has recently declared a “War on Alzheimer’s”  and some commentators are optimistic that Alzheimer’s Disease may be treatable by 2025 – read an article in the April 2012 Scientific American here,  but while this focus may prove successful to combat and prevent in the future there are many people – both individuals and families who face many different types of challenges right now.  This is why I liked stumblinn’s post.

The World Health Organization  issued a news release on 4/11/12 under the title “Dementia cases set to triple by 2050 but still largely ignored”    and essentially recommended that dementia public awareness and diagnosis needs to be expanded beyond the eight nations who currently have national programs to address dementia.  One of the topics covered in the release was providing more support to caregivers.    In this country, we need to continue to expand our understanding of people with dementia as people first, not medical problems to be fixed.

In the meantime, there continues to be evidence that lifestyle choices and habits still factor into the dementia diagnosis  in significant ways, U.S. News article “Everyday Activities Might Lower Alzheimer’s Risk” is here  and efforts to get people with dementia out in nature to reconnect with it to get back in better touch with their essential humanity  are helpful as are programs reconnecting dementia patients through art (an article in The New Old Age series).  I’ll explore more about gratitude for “what is” in a later post.

©Barbara Cashman, LLC

 

Who Is Taking Care of the Caregivers?

Did you know that according to the 2012 Report by the Alzheimer’s Association, over 15 million Americans provide unpaid care for a person with Alzheimer’s or some other form of dementia? f  The report, at page 27, also states that 80% of the care provided at home is given by family caregivers and that fewer than 10%  of older adults receive all of their care from paid workers.  The study also shows, in colorful bars, the proportionally larger number of caregivers of people with dementia (as compared with caregivers of older people) who provide assistance with activities of daily living (getting out of bed, dressing, toileting, bathing, managing incontinence, and feeding) along with the larger number of those dementia caregivers for both the 1-4 years and the 5+ years categories for the length of time of caregiving.  Page 31 of the report demonstrates that dementia caregivers suffer from 1.5 greater emotional stress level than the other elder adult caregivers, while the physical stresses were slightly lower. This report is very eye-opening.  One of my first questions about this is  – who is taking care of the caregivers?

Fortunately, the Alzheimer’s Association of Colorado offers assistance in the form of classes and workshops for people who are touched by Alzheimer’s and other forms of dementia.   A helpful list of resources available in Colorado can be found here.  Dementia care is stressful on a number of levels, so you may want to make sure that financial, legal and medical arrangements are already in place for the affected person.

So how do dementia caregivers of family members cope with the stress? I am a regular practitioner of yoga, so I was pleased to see this post on “Yoga for Caregivers: Meditation May Lower Depression, Improve Brain Functioning in Dementia Caregivers of 3/13/2012 available here.

Many times a better understanding of the behaviors of people with dementia can be helpful as can adjustments to communication techniques.  The Family Caregiver Alliance offers the following 10 tips:

1.      Set a positive mood for interaction – your attitude and body language communicate your feelings and thoughts stronger than your words.

2.      Get the person’s attention and limit distractions and noise, use nonverbal cues and touch to help keep her focused. If she is seated, get down to her level and maintain eye contact.

3.      State your message clearly, using simple words and sentences. Speak slowly, distinctly and in a reassuring tone. Refrain from raising your voice higher or louder; instead, pitch your voice lower. If she doesn’t understand the first time, use the same wording to repeat your message or question. If she still doesn’t understand, wait a few minutes and rephrase the question. Use the names of people and places instead of pronouns or abbreviations.

4.      Ask simple, answerable questions, and ask them one at a time (those with yes or no answers work best).

5.      Listen with your ears, eyes and heart and be patient in waiting for your loved one’s reply. If she is struggling for an answer, it’s okay to suggest words. Watch for nonverbal cues and body language, and respond appropriately. Always strive to listen for the meaning and feelings that underlie the words.

6.      Break down activities into a series of steps. This makes many tasks much more manageable.

7.      When the going gets tough, distract and redirect. When your loved one becomes upset, try changing the subject or the environment.

8.      Respond with affection and reassurance. People with dementia often feel confused, anxious and unsure of themselves. Further, they often get reality confused and may recall things that never really occurred. Avoid trying to convince them they are wrong. Stay focused on the feelings they are demonstrating (which are real) and respond with verbal and physical expressions of comfort, support and reassurance. Sometimes holding hands, touching, hugging and praise will get the person to respond when all else fails.

9.      Remember the good old days. Remembering the past is often a soothing and affirming activity. Many people with dementia may not remember what happened 45 minutes ago, but they can clearly recall their lives 45 years earlier. Therefore, avoid asking questions that rely on short-term memory, such as asking the person what they had for lunch. Instead, try asking general questions about the person’s distant past—this information is more likely to be retained.

10.  Maintain your sense of humor. Use humor whenever possible, though not at the person’s expense. People with dementia tend to retain their social skills and are usually delighted to laugh along with you.

The tips are from  http://www.caregiver.org

Some of the distressing facts about caregiving are According to the American Medical Association, 16 percent of caregivers have worsened health after they’ve begun caring for someone. And about half of Alzheimer’s disease caregivers go on to develop psychological distress.  So please remember, if you are caring for a person with dementia or want to help support someone who is providing that care, there are many sources of support available, so please take good care of the caregiver and get help if you need it.

Estate Planning for Blended or Nontraditional Families

A blended family or nontraditional family is a family in which one or both of the adults have children from a previous marriage or relationship.  In case you’re thinking “I didn’t have an estate plan for my first marriage –why would I need one for the second one?”  you may be overlooking the” details” of your children or grandchildren or unfamiliar with how best to take care of your second spouse or partner!  If you have children from a previous marriage, you may want to determine how your second spouse or partner and your kids will divide your estate.  Longevity (incapacity) planning looks at how the decision-making responsibilities will be shared among the family members or loved ones involved.  Both the estate and longevity planning will depend on your age and circumstances, as well as how old your kids are, and you may consider whether there are educational expenses or grandkids you want to provide for, and so on.  This is an especially important discussion to have with your second spouse or partner so that the concerns, goals and techniques are clear going forward.  A blended family situation is more likely to be driven by different estate planning goals for husband and wife or  life partners, than in a marriage or partnership the first time around – when a couple may be younger and share more common goals and there is typically only one set of children.

This estate planning, like all others, starts with a discussion.  So – what are some of the benefits of blended families estate planning?

  • helps identify goals of each spouse or partner – who they want to support and for what purposes;
  • can bring clarity for who provides what kind of support for  whom;
  • takes into account any pre-nuptial or post-nuptial agreements (these are known as “marital agreements” under Colorado law);
  • sheds light on financial and medical concerns and authority to make decisions in the event of incapacity or death.

If you are concerned about any of these issues and want to avoid a conflict-laden situation where  your surviving spouse or partner may be at odds with your kids or other family members, it is worth looking into making a plan.  A comprehensive estate plan will take into account your probate and nonprobate assets, the beneficiaries, and will also provide powers of attorney to provide for your welfare during short or long term disability or incapacity.  Read the CBA Estate Planning brochure

If you are looking to the future together and are realistic, making an estate plan can help cement expectations.  I liked this Ehow article on “How to Blend A Family,”  and no, it doesn’t involve a small kitchen appliance!

The term “blended families” doesn’t just apply to married couples – it can apply to unmarried couples as well, including a man and woman who could decide to marry each other if they chose to at a future date, or a same sex couple whose partnership may not be recognized as a marriage.  In Colorado, unmarried persons have the option of giving certain rights to another unmarried person through a Designated Beneficiaries Agreement. Find general information about Colorado Designated Beneficiaries Law here.

This agreement can provide benefits to the survivor of the two parties to a DBA, but does not provide disposition of property or confer rights for the second to die.  More information in my article here.

Okay, you may be interested in looking into this further, but maybe you don’t yet have a clear picture of what could happen if you (1) do nothing or (2) make assumptions without consulting the spouse or partner.  What are some things that could go wrong?

  • old wills and other plans are still in place that do not reflect current goals and concerns;
  • if you have minor children, outright gifts to them may be controlled by your former spouse;
  • picking a personal representative, guardian, trustee or co-trustee or other key people who do not get along with each other;
  • making your kids wait until the death of your surviving spouse or partner to inherit anything, which can fuel resentment;
  • failing to update beneficiary designations on nonprobate assets like retirement accounts, pay on death accounts, etc.  (these are not automatically changed as a result of divorce);
  • leaving everything to the surviving spouse or partner and assuming that he or she will “take care of” your kids; and
  • [this one is not unique to blended families]  leaving large amounts of money or property outright to someone who is not prepared to handle it – a/k/a the lottery effect.

If you are part of  a blended family and haven’t discussed with your spouse or partner what your wishes are, you may want to start that initial conversation – the first step to making plans.

New Insight Into Causes of Alzheimer’s: It’s Still A Mixed Bag

A recent Mayo Clinic study asked “Does Overeating Cause Memory Loss in Older People?”  This is just too simple – isn’t it?!

This study looks to be like many of the studies ongoing with new technology enabling brain scans and better targeted cognitive tests – preliminary and giving only “suggestions” about causal relationships.  It is indeed a slippery slope to identify the boundary between age related “mild cognitive impairment” and Alzheimer’s disease.  A bigger question of course is what does “healthy aging” look like for the unprecedented numbers of people over age 80 that presently reside on the planet?  There are also people (medical doctors) who question the whole categorization of Alzheimer’s and other forms of dementia.  The National Institutes of Health fact sheet on Alzheimer’s disease offers the following:

“Scientists don’t yet fully understand what causes Alzheimer’s disease, but it has become increasingly clear that it develops because of a complex series of events that take place in the brain over a long period of time. It is likely that the causes include some mix of genetic, environmental, and lifestyle factors. Because people differ in their genetic make-up and lifestyle, the importance of any one of these factors in increasing or decreasing the risk of developing Alzheimer’s may differ from person to person.”

A recent study in the United Kingdom led to a discovery that in mice, certain proteins may block the progression of Alzheimer’s, particularly the toxic effect of the amyloid-beta protein. Read it here.

One of the tricky things about Alzheimer’s is that its progression is far from uniform (except in the case of younger onset, familial Alzheimer’s, which is most likely what the patient of Dr. Alzheimer suffered from) and people suffering from dementia often die from other causes.  So don’t think that you can usually go into a neurologist’s or geriatrician’s office and get a conclusive diagnosis of Alzheimer’s or staging of Alzheimer’s, an effective treatment or a cure for Alzheimer’s or many other types of dementia anytime soon.

Here’s a rather odd twist in the field of dementia and spirituality – which hasn’t been studied much.  The original research article published by Amy Owen and colleagues at Duke University is entitled “Religious Factors and Hippocampal Atrophy in Later Life,” which is available here.  It is one of just a handful of studies about spirituality in later life.  Several previous studies had indicated positive effects for elders, especially those suffering from dementia, who were part of a religious congregation or community.  A Scientific American article by Andrew Newberg discusses the study in his article “Religious Experiences Shrink Part of the Brain,” and you can read the article posted May 31, 2011, here. It contains plenty of very interesting comments about the methodology, causality and other factors in the study and the conclusions that may be drawn from it.

Dementia and Baby Boomers – you don’t have to be old to suffer the ravages:  “Dementia’s Youngest Victims Often Defy Stereotypes,” in  USA Today online from March 23, 2012. Read it here.