Obstacles to Successful Elderhood: Skilled Nursing Care

denver elder law

Dome of Aspiration

 

I’m returning to the theme I introduced a couple months back about successful elderhood and its obstacles.  Today I’m looking at institutionalized care of American elders and in particular the costs versus care conundrum.

I recently came across two unrelated articles in the space of a single day and immediately saw a connection.  The first was this article from the New York Times, about the privatization of InnovAge, formerly a not-for-profit (which used to be known as Total Longterm Care) in the Denver area and the second article from the ABA Journal, about how the imposition of routine fines having little or no impact on deterring abuses at skilled nursing facilities.

Keep in mind that skilled nursing facilities (nursing homes) are some of the most regulated business in this country – regulated by both the feds through Medicare and Medicaid, as well as by state licensing and regulatory authorities.  Do these regulatory regimes lead to better outcomes?   The ABA Journal article would tend to weigh in on the “no” side of this answer. . .  That seems to be an open question, particularly in light of the shocking circumstances surrounding the death of a young mentally ill woman in SNF care – Letasha Mims, as described in the ABA Journal article above.

As an elder law attorney, I am aware of and often share the information collected by different state and local agencies about violations at nursing homes.  In case you’re wondering about Colorado nursing homes, here is a link to the CDPHE’s page about licensing and deficiencies.   Medicare has a handy tool to compare nursing homes here. You can enter a zip code and compare facilities quickly.

The story of Letasha Mims, however, makes me question the helpfulness and accuracy of that information collected by our regulatory agencies.   But the lingering question is a difficult one: when an elder or disabled person lives in a SNF which is a for-profit business, there is a nagging question about the adequacy of staffing at those facilities.    I am thinking of a recent book I came across – Elder Care Journey, (published in 2016 by SUNY Press) by Laura Katz Olson.  What Olson confronted in managing her elderly her mother’s care is something that faces each of us who has ever had to make the difficult choice of arranging for the care of a family member, like an elder parent, in a skilled nursing facility.

Olson writes eloquently about the personal journey of getting the best care for her frail mother, but what is most relevant for this discussion is the penultimate chapter of the book entitled “Peeling the Onion.”  In that chapter she looks at the system of care for elders including skilled nursing facilities (nursing homes).   She writes that the 2012 statistics indicate that sixty-nine percent of SNFs are for-profit organizations (mostly chains), but she reports that there is a recent trend toward private equity firms (like the one which is reported to have purchased InnovAge above) buying SNFs.  Olson notes that private equity firms have goals that include making quick profit so the business can be sold for a profit within five years; typically have protections against liability for substandard care which relate to the individual facility and not the chain which is the parent of the SNF; and private equity firms, unlike publicly traded companies, have little transparency about the inner workings of their assets, profits and ownership.  These important details don’t just seem to be at odds with providing adequate care, and they will likely contribute to a burgeoning number of substandard care.

Olson quotes at 152 (a 2001 study in the American Journal of Public Health) that “rates of severe deficiencies in investor-owned facilities were 40.5 percent higher than at nonprofit homes and 35.8 percent higher than at public homes.”  What will the numbers be for the present situation? This will likely be a topic of a later post. P Perhaps a relevant question for an adult child or anyone researching placement at a skilled nursing facility is the simple one of whether it is a for-profit facility and if it is, whether it is publicly-held or owned by a private equity firm.  Profit maximization for investors does not seem to be consistent with providing good care for our frail elders.

I focus on the SNF because of the institutionalized nature of such a facility and the relatively high level of medical care which is supposed to be provided.  And if you were hoping that Medicare was somehow an equalizer when it comes to insurance care for elders . . .  think again!  There is a growing shortage of doctors, particularly primary care physicians for elders, who take new Medicare patients.  For those elders in hospitals who are suffering from terminal conditions, here is a recent article from Health News, which addresses the shortage in hospitals of palliative and hospice care medical teams who are trained to discuss end-of-life issues, effectively manage patients’ pain and otherwise address the emotional and spiritual needs of those at the end of their lives.  There just isn’t enough money in providing palliative care under our Medicare program of incentivizing big intervention and the low-tech, high touch, human-fueled intervention of hospice and palliative care providers.  This reminds me of Atul Gawande’s observations in Being Mortal and Katy Butler’s book about her father and his health crises, Knocking on Heaven’s Door.

And what about Medicaid, that government long term care program that many people are curious about for their elder family members . . . Some studies have demonstrated worse outcomes for those Medicaid patients – whose doctors receive only a fraction of what other better insured patients receive.  Medicare patients didn’t seem to fare much better.  In case you’re wondering whether this divide continues, here’s an article from last month about worse outcomes for Medicare and Medicaid myocardial infarction patients.  We are spending money for these Medicare and Medicaid services, yet so many of the needs of the people receiving these services goes unmet . . .  what gives?!

Sorry, this post appears to be largely about obstacles, but perhaps they are placed before us so as to clarify what it is we need to fix for our loved ones and for ourselves.  Er, maybe this is an opportunity after all – but only if we make it one.  One thing is certain – it will not be an easy fix.

© 2016 Barbara Cashman  www.DenverElderLaw.org

Colorado End of Life Options – A Follow-Up

denver elder law

Spring Orchid at DBG

 

I’m writing this as a follow-up to my last post, which elicited a heartfelt comment from a subscriber and a fruitful discussion on LinkedIn. . .

Voluntary euthanasia is when death is chosen by a person, when they are killed with their own expressed consent.  These types of requests and the consent needed for such must be clear.  To review a bit – passive euthanasia is when a person makes an advance directive in the form of a living will in which the person indicates the level of medical intervention – or lack thereof – in the event they are in an end-of-life scenario.  In the Colorado Medical Treatment Decision Act, Colo. Rev. Stat. 15-18-101 et seq., we distinguish between persistent vegetative state and terminal condition as the triggering circumstances for the application of the living will.  Persons dying according to the terms of their living will may direct in advance the withholding or withdrawal of certain medical interventions which would tend to prolong or sustain life. The Living Will is in essence a statement of wishes and the persons involved in providing for assisting with another’s grave medical condition must be aware of its existence and its contents.  Unfortunately, what sometimes happens is that an elder goes to a senior center or some other place to fill out a living will form, but the elder neglects to inform their family members they have done so.  No one knows of its existence or contents and so it is of no value.  This is why having “the conversation” – especially with one’s health care agent – is so valuable!

So, let’s get on with the discussion at hand.  Many of us have experience with active euthanasia in the form of “putting down” a beloved pet.  When my dear old dog Pepper was nearly paralyzed, we made the decision to euthanize her after considering the alternatives.  When two of my sons and I were with Pepper at the vet’s office (sitting on the floor with her, stroking her and telling her how much we loved her), she was injected with the drugs that would end her life.  The vet commented to me – “I wish we could do this for people.”

This is the paradox of passive and active euthanasia – that active euthanasia is more humane in that it hastens the death to alleviate the suffering, while passive euthanasia requires the withholding of the means of sustaining life – which means a person can go quickly if they are dependent on breathing support or. . . .  they will slip away slowly as they starve to death.

It occurs to me that many of us don’t think of the living will as a statement as to the form of euthanasia preference – or if there is no preference for such.  Is the living will a document that tells our loved ones to “let us go” or is it a document that gives the patient’s preference as a statement of self-determination, to be free from the unwanted interference of others?  Can it be both?

There are of course a wide variety of living will forms available.  While the documents are acceptable forms of stated preferences regarding euthanasia, different religious communities have their own preferred documents in compliance with their laws or traditions.  What is the distinction between letting someone die by not intervening and allowing a person to die by their own choice with the assistance of a doctor?  Is there really a bright line between the two?

Getting back to the “letting go” versus “self-determination” purposes of the living will, how do these play out in the context of active euthanasia or physician assisted death (as in the Colorado End-of-Life Options initiative)?  These tensions are even more pronounced in this context.  Where is the distinction between one’s not wanting to be a burden on loved ones and the subtle coercion that a gravely ill person may feel to “get on with” dying so that their loved ones can be liberated from the burdens of caring for the sick person?  I certainly am not suggesting answers.  What I am concerned about is that people seem to look for answers without regard to the question and what it entails or requires.

An exclusive focus on the self-determination rights of gravely ill people to be statutorily allowed to take their own lives – with the assistance of medical doctors – skews the discussion.  I liked Jennifer Ballentine’s article entitled “Law & Sausage: Physician Assisted Death and the Solution to Suffering.”  You can read it here.

The attraction is clear – to focus on the individual right to extend medical self-determination to include physician assisted death is a very American pastime!  We have a long tradition of championing and enshrining individual rights.  But in the context of active voluntary euthanasia, or end of life options, such exclusive focus myopically steers that discussion away from the critical context of the exercise of such a right [author’s disclaimer: I wear corrective lenses for correction of nearsightedness].  This right would certainly not exist in a vacuum.

I don’t think it is too much to consider a look at the bigger picture here and to identify in advance of our ballot choices this November the many unintended consequences which would flow from our choice.

© 2016 Barbara Cashman  www.DenverElderLaw.org

The Colorado End of Life Options Act – On Our Ballot This November

Spring in Assissi

Spring in Assissi

 

Will Coloradans approve the ballot measure to allow physician assisted death in Colorado?

This is an update to previous posts about (unsuccessful) proposed legislation concerning physician-assisted death in Colorado and the ballot initiative which will be put in front of Colorado voters this November.  Click here to read the Colorado Secretary of State’s final version of the initiative.  Today’s post is a further conversation about this highly-charged topic.  I enjoyed reading this recent Denver Post piece by Jennifer Brown about use of language and terminology in this initiative and the wider debate.

The first observation is that I’m using the term I have previously employed – physician assisted death.  When I typed in the term to my search engine, what appeared in the results was “physician-assisted suicide” defined here as

The voluntary termination of one’s own life by administration of a lethal substance with the direct or indirect assistance of a physician. Physician-assisted suicide is the practice of providing a competent patient with a prescription for medication for the patient to use with the primary intention of ending his or her own life.

I use the term death because it is less inflammatory, but it is – by the very nature of the procedure – suicide.  Assisted death can incorporate both physician assisted suicide and voluntary euthanasia, and I note this is important.  While we’re talking about terms to describe the life-ending process which is facilitated by a physician, let’s look at a few important terms to help keep the terminology straight.

Euthanasia comes from the Greek meaning “good death” and the Merriam Webster online dictionary defines it as:

 the act or practice of killing or permitting the death of hopelessly sick or injured individuals (as persons or domestic animals) in a relatively painless way for reasons of mercy.

Within the definition of euthanasia are different types of euthanasia, including: voluntary, non-voluntary and involuntary.  Today I consider only voluntary euthanasia which consists of two kinds – active and passive.

Passive voluntary euthanasia: When someone executes a living will to direct that no life-sustaining procedures or artificial nutrition and hydration be offered in the event a person (known as the “declarant” for purposes of a living will) is determined to be unable to provide informed consent and suffers from a persistent vegetative state or terminal condition.  This practice (with important controls promulgated by state laws) was made legal by the U.S. Supreme Court decision in Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990).  It was the first “right to die” case heard by the U.S. Supreme Court, and discussed important aspects of self-determination, liberty interests and due process in the context of Cruzan’s family’s attempts to have Nancy Cruzan’s previously expressed wishes (orally expressed, not in writing) upheld.

Active voluntary euthanasia: This differs from the widely accepted passive form in that passive euthanasia involves a refusal or withholding of treatment and active euthanasia involves an intervention to give something –  a lethal prescription from a doctor – to provide the means to end a life.  Herein lies the distinction between refusal to provide or continue to provide treatment (recognized in our living wills) and the active choice of one’s own death, or suicide.

Can there be any middle ground here?  Perhaps.  If you consider the arguments for wider acceptance and use of hospice and palliative care – these focus on the treatment of the whole person to manage pain, a terminal condition or end of life medical care, and not just from the more mainstream exclusive perspective of medicine’s focus exclusively on a patient’s medical problems, often to the detriment of the patient’s quality of life.  So here is the question – if patients have access to good quality palliative and/or hospice care at the end of life, then is assisted death really necessary?  One way of looking at this is to consider that the rights-focused physician assisted death doesn’t adequately take into account the scope and range of palliative and hospice care which is presently available.

As we continue to age and live with (read: have our lives prolonged by) more drugs and medical devices, how we choose to remove those supports (like a pacemaker or similar devices) is part and parcel of our choice of living as much as it is how we choose for ourselves (and others) how we manage the end of our lives.  Here there is a distinction between the legal terrain (like a medical POA or a living will) and the medical terrain (a do not resuscitate is a medical order requiring a doctor), but this is longevity in the U.S. and most people don’t live their lives consciously regarding these distinctions.  Maybe it’s time to broaden the conversation . . .

© 2016 Barbara Cashman  www.DenverElderLaw.org

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