Social Media Abuse of Elders

Contrast

Contrast

 

I recently came across this horrifying article published Monday in ProPublica, entitled “Federal Health Officials Seek to Stop Social Media Abuse of Nursing Home Residents.”  It seems that some staff members of nursing homes are publishing photos, audio and video recordings of some residents in the social media like Snapchat, Facebook or Instagram, or sent in text messages as multimedia attachment.  These pictures, audio and video files often depict elder residents of the facilities s in demeaning and humiliating ways so as to result in mental abuse.   The Centers for Medicare and Medicaid Services has recently sent out a memorandum concerning this to the State Survey Directors.

Do the skilled nursing facilities have prohibitions against such intrusions in place?  Some evidently did not, but there can be little doubt that nearly all will have such protections in place soon in light of these disturbing developments.  Here’s an article about such violations in Ohio nursing facilities.

The CMS memo referred to above defines mental abuse as that abuse which:

[M]ay occur through either verbal or nonverbal conduct which causes or has the potential to cause the resident to experience humiliation, intimidation, fear, shame, agitation or degradation.  Examples of verbal or nonverbal conduct that can cause mental abuse include but are not limited to: nursing home staff taking photographs or recordings or residents that are demeaning or humiliating using any type of equipment (e.g., cameras, smart phone, and other electronic devices) and keeping or distributing them through multimedia messages or on social media networks.  Depending on what was photographed or recorded, physical and/or sexual abuse may also be identified.

ProPublica has been following this following these developments for many months and this article from December 21, 2015 details some of the incidents this mental and physical abuse of incapacitated elders perpetrate by the nursing home staff members.  In a case in New York where a nurse aide took photos of an incontinent resident’s genitals covered in fecal matter and shared them with another staff member on Snapchat, he was fired and pleaded guilty to a misdemeanor count of willful violation  of health laws.  What I found particularly disturbing was the comment of one home’s administrator to ProPublica that “[t]echnology is a problem for us, for everybody, these days… The resident involved was not harmed but certainly it was a serious incident.”  Are incapacitated nursing home residents not entitled to any human dignity and to be free from such exploitation for someone’s entertainment?

One of the incidents described by ProPublica is from August 2015.  It occurred in a rural area of Colorado and involved a youth volunteer at a nursing home who took a selfie which showed a 108-year-old resident urinating.  The volunteer apparently shared the photo with her friends at school and the facility did not learn of the offending photo until months later.  The volunteer was not monitored by the facility but did report to the local police, and was later charged with invasion of privacy.

What is human dignity when it cannot be defended by an incapacitated elder? What is human dignity when it is not readily apparent or recognized in places where people are institutionalized for the paramount concern of their safety?

Dignity, as in the legal right, is not easily defined.  In fact, you would be hard pressed to find many references to it in our laws.  International law, specifically the international law of human rights, has much more to say about human dignity, but that is another blog post!

I will close with just a couple observations and questions. . . .

If humiliation is the opposite of being treated dignity and respect, is our system of laws really equipped to deal with this type of new frontier of the rights of incapacitated persons to be free from intrusions by others who humiliate them for sport or humor?

Is the dignity of or respect for elders a right in this context or is it overshadowed by our concerns for safety, and how does an incapacitated elder’s diminishing bailiwick of autonomy factor into this equation?

On this note, here is a link to an interesting article about the dignity of elders.  More to come on this very challenging topic.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

Let’s Raise Awareness About Elder Abuse!

elder abuse awareness

Moonlight Near Westcliffe

For this last post of June, I wanted to circle back on the importance of raising awareness of elder abuse.  You can read the Presidential Proclamation on June 15, 2016, for World Elder Abuse Awareness Day right here and if you’re curious about the language of the Elder Justice Act, passed as part of the Affordable Care Act (as Title VI subtitle H, §§6701 et seq.), read this link.

In Colorado, as in nearly all other states, adult protection units are responsible for the reporting and investigation (along with law enforcement agencies) of elder abuse.  The Elder Justice Act is federal legislation which requires the U.S Department of Health and Human Services “to oversee the development and management of federal resources for protecting out seniors from elder abuse.”  Additionally, the U.S. Department of Justice is charged with taking action to prevent elder abuse.

The effective coordination of these county, state and federal efforts is of course a work in progress.  What we do know about raising awareness of elder abuse and exploitation is that it will lead to more reporting of such abuse.  Here is a link to a recent article in the Sacramento Bee which links the raised awareness of such abuse to a dramatic increase in reports to local law enforcement.   This is important to bear in mind as the baby boomers begin to become a greater proportion of the cohort affected by elder abuse and exploitation.  In my practice, I have unfortunately become familiar with national and international internet scams which relieve elders of their hard-earned retirement money.  This is a particular area in which the federal government might play a unique role as so much of our law of the internet is based in federal law.

Another tragic side effect of the victimization of elders, besides the shame, victimization and impoverishment which results from financial exploitation is that these elders, along with elder victims of all types of elder abuse – including physical and sexual abuse – are likely to die much sooner than their peers who were not victimized.  But many pieces of this puzzle remain unidentified due to the lack of long term studies which collect valuable statistics about elder abuse of various types! This is of course another aspect of the importance of raising awareness.  Because so much of elder abuse still remains unreported, this is a major quality of life challenge not just for elders and their loved ones and community, but also for those of us of “a certain age” who might be looking forward to a safe and meaningful elderhood.  How can we make things better for elders at risk now and in the future?

What is elder abuse and who are its primary victims of such elder abuse? By the numbers, they are largely women and the “old” of the elder population – meaning folks over 80.  Sadly, the vast majority of the abusers are family members of the elder or trusted friends or advisors.  Because most elders live in the community – not in institutions – this is a particular challenge for all of us who are community members to become familiar with the signs so that we can report concerns about safety, suspicious behaviors and the like to local law enforcement.

First – what are the kinds of elder abuse that we’re talking about? Here is a helpful listing from the U.S. government’s Administration on Aging website, which also has many helpful resources:

  • Physical Abuse—inflicting physical pain or injury on a senior, e.g. slapping, bruising, or restraining by physical or chemical means.
  • Sexual Abuse—non-consensual sexual contact of any kind.
  • Neglect—the failure by those responsible to provide food, shelter, health care, or protection for a vulnerable elder.
  • Exploitation—the illegal taking, misuse, or concealment of funds, property, or assets of a senior for someone else’s benefit.
  • Emotional Abuse—inflicting mental pain, anguish, or distress on an elder person through verbal or nonverbal acts, e.g. humiliating, intimidating, or threatening.
  • Abandonment—desertion of a vulnerable elder by anyone who has assumed the responsibility for care or custody of that person.
  • Self-neglect—characterized as the failure of a person to perform essential, self-care tasks and that such failure threatens his/her own health or safety.

 

And what about the warning signs of elder abuse which we can be more aware of?

  • Bruises, pressure marks, broken bones, abrasions, and burns may be an indication of physical abuse, neglect, or mistreatment.
  • Unexplained withdrawal from normal activities, a sudden change in alertness, and unusual depression may be indicators of emotional abuse.
  • Bruises around the breasts or genital area can occur from sexual abuse.
  • Sudden changes in financial situations may be the result of exploitation.
  • Bedsores, unattended medical needs, poor hygiene, and unusual weight loss are indicators of possible neglect.
  • Behavior such as belittling, threats, and other uses of power and control by spouses are indicators of verbal or emotional abuse.
  • Strained or tense relationships, frequent arguments between the caregiver and elderly person are also signs.
  • Changes in the elder’s personality or behavior, especially if the elder becomes withdrawn or despondent, questions to her or him can be very important in identifying a situation which may be the cause of the elder’s silent suffering.

Lastly, here is another helpful self-help resource specifically for Colorado residents – from Colorado Legal Services.  That’s all for now – but don’t forget . . . . Denver’s Senior law Day is coming up on Friday July 29, 2016 and will be held at the Denver Police Protective Association’s Event Center.  More details later.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

World Elder Abuse Awareness Day – June 15, 2016

Samurai Mask

Samurai Mask

Just eleven days ago, I presented at the 6th annual Jefferson County Senior Law day. No fewer than three of the sixteen topical presentations concerned preventing or combatting elder financial abuse. It is on everyone’s minds as the scammers and predators continue to devise ways to relieve elders of their retirement savings.

But elder abuse isn’t just of a financial or transactional nature.  Today’s post is about the World Elder Abuse Awareness Day (WEAAD).  Yes, WEAAD is on Facebook – check out their page here.

Elder abuse can take a number of forms and while some of it often has characteristics common the domestic violence, working with elder victims of abuse has a unique skill set.  The National Clearinghouse on Abuse in Later Life has links to webinars and other information available here on raising awareness about elder abuse and promoting dignity across the lifespan.

More information, including helpful fact sheets in several languages, is available here from the U.S Department of Health & Human Services, National Center on Elder Abuse.

According to the United Nations, which established World Elder Abuse Awareness Day in General Assembly Res. 66/127, the global population of people aged 60 years and older will more than double, from 542 million in 1995 to about 1.2 billion in 2025.

Did you know there is proposed federal legislation on this topic? Read more about the Elder Abuse Victims Act of 2016 here.  While it has a very slim chance of passage, its third introduction in the house provides the following as its full title, written by its sponsor Peter King (R. N.Y.):

To better protect, serve, and advance the rights of victims of elder abuse and exploitation by establishing a program to encourage States and other qualified entities to create jobs designed to hold offenders accountable, enhance the capacity of the justice system to investigate, pursue, and prosecute elder abuse cases, identify existing resources to leverage to the extent possible, and assure data collection, research, and evaluation to promote the efficacy and efficiency of the activities described in this Act.

Raising awareness about elder abuse is a community effort! Watch this sixteen minute and emotionally powerful video about confronting elder abuse in America on the National Council on Aging’s “Elder Justice Now Campaign” page – it gives a face to victims of elder abuse.  I count myself among those who aspire to old age one day, and I believe it is up to us to take measures now to ensure that elders in our community command respect and dignity and are protected from exploitation and abuse from opportunists and predators.

That’s all for now.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

Yours, Mine, Ours and Theirs: Some Practical Questions to Get Started

Southern Colorado Springtime

Southern Colorado Springtime

 

So this is part five of my series and just in time for next Saturday’s Jefferson County Senior Law Day (June 4, 2016)! I took a couple weeks off for a vacation, but I’m back now.  Here’s a link to a bit more information about this year’s program which will again be held at Colorado Christian University in Lakewood.  I don’t yet have a link to the 2016 Senior Law Handbook, but will provide it when it becomes available.

For the last couple years of Senior Law Day, I have presented on financial powers of attorney and conservatorships, but this year I was approached about presenting on a new and different topic, hence the title of the “Yours, Mine, Ours and Theirs” presentation – which will be its first time out.  I don’t know how many people will show up for my presentation, because the title is purposely short. . .   I’ll be presenting it at 11:30 and will have informational flyers available for attendees.

So here’s an overview along with some of the questions that folks “re-coupling” in later life might want to ask themselves and discuss with each other.  This discussion, a most necessary and valuable conversation when had at a time that is planned – and not in the midst of a crisis or emergency, can clarify expectations and prevent conflict in a number of important ways by managing expectations.  So, let’s look at where we find ourselves. . . .

Remarriage or Re-Coupling After Widowhood

I use the term “re-coupling” to encompass marital, non-marital (living together), and other types of relationships which people forge with their partner or other dear ones.  Just as a bit of a refresher, while the “yours, mine and ours” may seem fairly straightforward, figuring out which property will be maintained or held separately and how joint property will be titled and maintained, particularly in the event of disability and death, is usually a bit of a challenge.  Remember that I have added “Theirs” at the end of the title to reflect the fact that many of us in these re-couplings have children from previous relationships.  In my experience with estate planning for blended families or later life re-marriages, there is often a strong desire to address and adequately or equitably provide for adult children of the respective spouses or partners.  In some cases, spouses will leave everything to the survivor of the two, with the option for the survivor to leave something or nothing to that first to die spouse’s children.  Others, including those re-coupled spouses who were previously widowed, may feel that their children should inherit at least some portion of their (the remarried widowed spouse’s) estate after the re-coupled spouse passes away because some portion of that estate may have been accumulated by the adult child’s first-to-die other parent.  It is not uncommon for a re-coupled spouse or partner to feel that their adult child(ren) ought to have a stake in their inheritance.  This expectation is often expressed by the child(ren) as well.

Many of these couples, particularly those who are already receiving retirement benefits when the re-coupling occurs, must carefully consider the impact (sometimes an adverse financial impact) that marriage has on the benefits received as a result of being widowed.  For this reason, some older couples may choose to have a non-marital or living together agreement in place, so that these matters are more clearly elucidated.

Remarriage or Re-coupling After Divorce

Remarriage after divorce presents its own financial challenges as the number of baby boomers (many of whom were in long-term marriages of twenty or thirty years) divorcing has been on the rise.  There may be a splitting of retirement benefits (as in a qualified domestic relations order – QDRO) or other splitting up of retirement assets of a qualified or nonqualified nature.

Remarriage or Re-coupling and Disability Planning

Yes, this is the other “d” which is very important and should not be overlooked!  While death is an uncertain certainty, whether we will suffer some form of disability – physical, cognitive, psychological – is a certain uncertainty.  In my opinion, re-coupled folks or remarried spouses need to have these questions sorted out more clearly than those who are single or only married once. Why? The best way to minimize the potential for conflict in the event of a health crisis is to make a plan which identifies key people and describes their roles,  such as:

  • Who will be the health care agent or proxy decision maker?
  • How will the spouse or partner be empowered to make health care decisions?
  • How will the adult child or children of a disabled or incapacitated parent be empowered to make health care decisions?
  • What will be the process for communication between all the persons involved?

Another question deserves its own paragraph, but I will simply mention the question here – have you examined your expectations around care and caregiving for your spouse or partner?  Alright, this post is getting a bit long-winded here, so I will wrap up with just a few more questions, which I will no doubt be putting into that flyer for Senior Law Day.

Have you both considered the level of financial stress relative to the longevity (actual and potential) of your relationship?  I will close with a few bullet points to ponder:

What do you need to know about your own and your partner’s finances before you tie the knot or otherwise intertwine your finances?

  • How much debt do you have? What kind is it (credit card, car loan, other)?
  • How will we handle financial or other interventions or assistance for an adult child?
  • What do you earn now and what will you have as income sources for retirement (pensions, 401(k), IRA, Social Security, etc.)?
  • How will you and your partner share or split expenses?
  • Do you and your partner have compatible financial values and goals?
  • Would you consider a marital agreement, written plan or a will (or will substitute) to provide more clarity about rights, expectations and so on in the event of disability and eventual death?

I am looking forward to presenting on this topic of “Yours, Mine, Ours and Theirs” which is a most interesting topic to me, based on the experience that each blended family or recoupled relationship is utterly unique.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

 

 

 

 

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

denver elder law

A Waiting Bench

 

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

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

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

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

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

Are you married?

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

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

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

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

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

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

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

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

© 2016 Barbara Cashman  www.DenverElderLaw.org

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

Not quite empty nests!

Not quite empty nests!

 

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

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

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

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

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

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

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

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

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

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

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

___________________________________

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

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

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

Spring Flowers

Spring Flowers

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

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

The Questions. . . .

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

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

The Nature of Potential Conflict . . .

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

The Varying Styles of Conflict Among People . . .

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

  • Confrontation
  • Accommodation
  • Compromise
  • Conciliation
  • Avoidance

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

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

More to come!

© 2016 Barbara Cashman  www.DenverElderLaw.org

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

denver elder law

Square in Assisi

 

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

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

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

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

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

Here’s an overview of my next post:

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

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

That’s all for now. . .

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

Elder Financial Abuse of a POA by an Agent – part II

Siennese Sculpture

Siennese Sculpture

 

This is the second post on the topic of elder financial abuse and abuse of a power of attorney by an agent.  Read the first post here.   In the background here is the bigger question about how we can think about how we want manage our longevity and plan for incapacity, but let’s face it . . . .  many of us would prefer to not think about it at all, so avoidance is a common response to this question!  This looming prospect of diminishing capacity is of course is a phenomenon that will affect us in increasing numbers as the baby boomer cohort continues to grow older.  For a bit of background about the “job description” of an agent under a general (financial) POA in Colorado, you can read the Colorado Bar Association’s brochure entitled “So Now You Are an Agent Under a Financial Power of Attorney here.

As the saying goes, an ounce of prevention is worth a pound of cure – and it is particularly applicable to the task of naming the right person as agent in a POA.  Fortunately, there are plenty of resources about the prevention aspect.  The American Bar Association, through its Commission on Law and Aging, has lots of helpful information relating to durable power of attorney abuse and other financial exploitation topics, as well as materials relating to the legal issues involving elder abuse and resources for law enforcement and lawyers is available here.

Let’s start small with the two examples I described in the previous post: So what might this kind of POA abuse or exploitation look like?  Often the elder principal’s major asset is the home.  Is an agent transferring the principal’s interest or a partial interest in the principal’s home to him or herself (not as agent)?  What I have seen on more than a couple occasions is an agent use a quitclaim deed to accomplish this type of transfer.  One was for supposed “safekeeping” – the agent was afraid that a sibling was going to be given an interest in the property, so the agent transferred to herself first (!); and another transfer was “just in case” mom needed to qualify for Medicaid later one, at least that was the rationale for relieving her of her sole asset.

What can an elder law attorney do to assist in these types of scenarios?

Individual concerns vary widely and an elder may be interested in preserving some sense of family harmony and so the initial gestures to correct a problem don’t always need to be big and bold.  People don’t usually want to start with the nuclear option, but it is important to identify a strategy that will identify the “what if’s” in the event the agent doesn’t take the opportunity given to them to fix the problem and do right by their parent.  In the quitclaim transfers described above, a letter from an attorney (me) was enough motivation to get the situation fixed and they were both successfully resolved with no legal proceedings.  These situations were remedied by the transfers being “undone” by the agents.  In the first example, the POA was revoked and replaced with another POA.  This is often not so simple however, as a recalcitrant agent may often refuse to stop or cooperate and so legal proceedings must be instituted.

What else can an elder principal do about shutting down a “rogue agent?”

Back to the prevention theme:  Stay engaged with others!  While many of us Americans love to be independent, it is better for our overall health to be part of a community.  Remember that social isolation of elders can sometimes lead to situations where an elder can easily be taken advantage of by ill-intentioned people.  Read more about elders and social engagement here.  In my experience, neighbors can be very helpful in this regard, to keep a watchful eye on the elder and the elder’s emotional well-being and engagement with others.

Okay, to stay on today’s topic here, let’s take a look finally at some of the legal action that can be taken to remedy and rectify a situation created by a misbehaving agent.

There are a number of legal and equitable actions and remedies available to a principal who has been damaged by their agent.  Remember that the agent works for the principal and the agent is a “fiduciary” of the principal, which means the agent must act with the highest degree of good faith on behalf of the principal.

In a situation where the agent is behaving badly, there are a number of actions which the principal can consider.  The POA statute and the probate code allow for a number of proceedings in these kinds of circumstances, including: removal of the agent; filing a petition to review agent’s action; and an action for breach of fiduciary duty.  Equitable remedies (as distinguished from legal remedies) would include petition for surcharge (which might include lost income and recovery of attorney’s fees) and imposition of a constructive trust.  Another type of proceeding against the agent would be tort actions – including fraud, misrepresentation and conversion.

Here’s a law review article that provides a good overview of many of the legal and equitable actions and remedies which might be pursued.

That’s all for this second installment.  In the third and final installment on this them I will be looking at the similarities between elder financial exploitation and abuse and domestic violence, as they share many similar behaviors.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

Vulnerable Elders and the Slayer Statute part 2

Concrete Windows of Chalk

Concrete Windows of Chalk

This is the second installment on this topic.  In the first post, I gave an overview of vulnerable elders and the criminal nature of elder abuse and exploitation laws and also the civil remedial law background of the slayer statute.  Why is Physician Assisted Death (PAD) mentioned in the title?  Because the now-dead bill in the Colorado legislature had NO reporting requirements, which I thought was a very bad idea that could give predators of frail and ill elders in Colorado a bit too much cover for their misdeeds!  In this continuation on the topic of vulnerable elders and the slayer statute, I look at some of the state laws that have broadened their slayer statutes to include elder abuse.

Elder Abuse Laws Can Be Both Criminal and Civil in Nature and State or Federal

In this post, the focus I use on elder abuse as primarily criminal in nature, meaning there are criminal penalties upon conviction and these of course vary from state to state.  The Elder Justice Act of 2009, as part of the Affordable Care Act, coordinated actions to combat elder abuse across the federal government.  My overview today will be confined to looking at state statutes, not federal legislation.  The inclusion of elder abuse in a slayer statute expands the scope of who can be disinherited.  Keep in mind there are a wide range of civil remedies which may be available to an abused elder.

The Abuser/Slayer Statutes Cover a Diverse Variety of Abuse

As I wrote in a previous post, Washington is one of eight states that have broadened slayer rules to apply in some form to abusers of elders. The other seven states that have expanded their disinheritance laws to preclude abusers from inheriting from their victims are Arizona, Oregon, California, Illinois, Kentucky, Maryland, and Michigan.  State statutes vary as to the type of abuse that triggers application of the law.

In contrast with Washington, which expanded its slayer law to include only financial abuse, some jurisdictions have amended their laws to also include physical, sexual, and psychological abuse. In addition, states differ as to whether a criminal conviction of abuse is necessary to trigger application of the rule as well as whether the rules can be applied retroactively.

Arizona and Maryland have also expanded their disinheritance and slayer rules to disqualify persons on the basis of financial exploitation of vulnerable adults. For example, in Arizona, the statute reads:

A person who is in a position of trust and confidence to a vulnerable adult shall use the vulnerable adult’s assets solely for the benefit of the vulnerable adult and not for the benefit of the person who is in the position of trust and confidence to the vulnerable adult or the person’s relatives. Ariz. Rev. Stat. Ann. § 46-456 (2014).

Maryland’s statute has similar wording: [A] person may not knowingly and willfully obtain by deception, intimidation, or undue influence the property of an individual that the person knows or reasonably should know is at least 68 years old [or a vulnerable adult] with intent to deprive the individual of the individual’s property.  Md. Code Ann. Crim. Law § 8-801(e) (2011).

These statutes do not include physical, sexual, or psychological abuse as triggers for application of the slayer and abuser law.  The Arizona law requires the abuser to be in a position of “trust and confidence.”  This trust and confidence, or “confidential relationship” as it is often called in the law, contributes to the vulnerability of the person abused or slain.  The Restatement [Third] of the Law of Restitution and Unjust Enrichment devotes §43 to a discussion of fiduciary (as in agent under a power of attorney, etc.) or confidential relationship.  Interestingly, the Arizona law does not appear to encompass situations where a would-be beneficiary lacks a fiduciary or confidential relationship to the vulnerable adult.

Some other states that have expanded their slayer or disinheritance laws to include abuser provisions (California, Illinois, Kentucky, Michigan, and Oregon) have amended their laws to apply to physical abuse and neglect in addition to financial exploitation. In Oregon, an “abuser” is defined as “a person who is convicted of a felony by reason of conduct that constitutes physical abuse … or financial abuse.”   The requirement of a felony conviction is substantial.  California’s statute uses a broader definition of abuse that includes physical abuse, neglect, false imprisonment, or financial abuse of an elderly or dependent adult.  See Cal. Prob. Code, § 259 (2012).  There are many variations on the elder abuser and slayer combinations of statutory relief!

Other than Washington, California is the only state with slayer and abuser laws that do not require criminal conviction related to abuse of the decedent as a triggering event for application of the disinheritance abuse rules.  This is more closely in keeping with the regime of the slayer statute, of civil relief that is afforded, like in Colorado’s statute, as a result of a criminal conviction or civil court’s determination that the elements of a qualifying crime have been met so as to bring the resulting death under the purview of the statute.

The California law is triggered if the would-be heir is convicted of abuse under the state’s penal code, or the abuse (in addition to such factors as whether the decedent was a vulnerable adult) is proved in a civil court by clear and convincing evidence. In Arizona, Illinois, Kentucky, Maryland, Michigan, and Oregon, criminal conviction related to the abuse of the decedent by the heir is required.

By way of illustration, the Michigan statute provides: A judgment of conviction establishing criminal accountability for the … abuse, neglect, or exploitation of the decedent conclusively establishes the convicted individual as the decedent’s killer or as a felon.  See Mich. Comp. Laws Ann. § 700.2803 (2012).   It also provides for an alternative civil determination that an individual is a slayer under the slayer and abuser Civil, not criminal) rules. This judgment is achieved when a preponderance of the evidence provided in civil court proves that the would-be heir feloniously and intentionally killed the decedent. The statute is devoid of any civil-standard alternative for persons accused of abusing the decedent. The Michigan statute specifically calls for a felony conviction related to abuse; presumably, then, a finding or plea for a misdemeanor-level crime would not trigger the disinheritance provision. The plain language of some of the other statutes as to the degree of criminal culpability is not as clear.

There Is a Wide Range of State Laws by Which Criminal Acts and Some Civil Actions Form the Basis for Disinheritance as Part of an Abuser/Slayer Law  

Similar to Washington law, some states have drafted rebuttable-presumption clauses in their abuse disinheritance laws to negate the disqualification of an abuser from inheriting from a decedent. The California code negates the disqualification of an abuser if the alleged abuser proves that the vulnerable adult “was substantially able to manage his or her financial resources and to resist fraud or undue influence” subsequent to the alleged abuse.  This presumes that the person making the will (testator),  knew of the abuse and had the capacity to change the estate plan but nonetheless elected to allow the abuser to inherit.

As I noted in the first post, the roots of the modern slayer statute are ancient in origin.  The slayer statute is part of a state’s civil law as it is not criminal in nature.  Keep in mind that one of the major distinctions between criminal and civil law is the what is at stake for the defendant: the criminal penalty may involve imprisonment, fines, etc., as they are offenses against the state; while the civil matter involves money and sometimes specific actions.  The burden of proof is also different.  In criminal matters it is generally “beyond a reasonable doubt” while in civil matters it is typically a preponderance of the evidence (more likely than not) and sometimes by clear and convincing evidence.

Due to their remedial nature, slayer statutes have long been enmeshed with criminal law. Expanding slayer statutes to include disinheritance for different types of elder abuse similarly involves a careful look at how the range of criminal and civil laws relating to elder abuse will be effectively drawn into the disinheritance scheme of the slayer statute.  Colorado has no such law at the present time, nor is one being considered in the legislature.   If there is a PAD law that comes into effect – by either statute or ballot initiative – which contains no reporting requirements, then an abuser/slayer law might be a good idea.

© 2016 Barbara Cashman  www.DenverElderLaw.org