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

 

 

Vulnerable Elders and the Slayer Statute

Italian Stone Face

Italian Stone Face

A couple weeks back, I posted an update on the proposed End of Life Options Act, a bill in the Colorado legislature which has since died (presumably of natural causes).  There is concern that some version of the bill will make it onto a ballot to become law by other means.    For this reason, today’s post will go into a bit more detail about the concerns I raised about the implications of having no reporting requirements for such a law and concerns I have with regard to the safety of some vulnerable elders.

Vulnerable Elders

Colorado’s mandatory elder abuse reporting statute defines an at-risk adult as “any person who is seventy years of age or older or any person who is eighteen years of age or older and is a person with a disability.”  Colo. Rev. Stat. §18-6.5.102(2).  The only reputable (US Census based) internet fact I ran across about this population was for persons 65 and up, who in July 2014, were estimated to be 12.7% of the population of Colorado.

From a civil rights perspective, aspects of elder abuse prevention statutes can often seem paternalistic.   Much of the research that could be done on the subject is problematic because of ethical and methodological problems.  Collecting information about elder abuse may publicly expose cognitive, physical, mental and social vulnerabilities and the collection of such information could have negative implications in the form of legal, financial or social consequences for both the elders and caregivers and others who might participate as part of a study.  I mention this because the vast majority of elder adults are competent and retain capacity, at least in the eyes of the law.  The implication of these observations is that we really don’t have solid numbers about how many perpetrators and victims we are talking about.  As an elder law attorney, I can say that it is extremely difficult for an elder parent to call me (or adult protective services) to report abuse or exploitation being perpetrated by an adult child or family member of the elder.  Suffice it to say we don’t really know, and may never have a very firm handle on how many elders are affected as victims of exploitation and abuse.

When you couple this with the lack of any reporting requirement for a physician assisted death law, it would not be possible to track the numbers of vulnerable elders who might fall prey to an abuser’s or exploiter’s plan to hasten someone’s demise so that they might inherit something from the elder.  Enter the slayer statute.  Here’s an article about “disincentivizing” elder abuse.  Keep in mind that elder abuse statutes have criminal penalties.  There are of course distinguished from civil remedies, which can provide other types of relief.

The Slayer Statute – A Modern Law with Ancient Origins

If you’ve never heard of a slayer statute, you’re not alone! It’s both obscure and ancient.  Before there were any state “slayer statutes” there was the common law slayer rule.  Its origin hearkens back to the first known remedial law code in human history: the Code of Hammurabi.  The Code of the Babylonian king was inscribed on a stone pillar (called a stele) and installed in a public place.  It was a combination of legal principles and history.  Most of us are familiar with the axiom “an eye for an eye and a tooth for a tooth” as some precept of retributive law in the form of revenge as recompense for personal harm, but it is much more likely the expression has been badly misinterpreted and taken out of context.  It is probably much more closely aligned with other commentary in the code which describes the value of certain personal injuries in terms of repayment.  In short, it was a code of remedial law – akin to modern day worker’s compensation and tort law.

The principle from Hammurabi’s code is that “a killer cannot profit from his wrong.”  The common law rule, nullus commondum capere potest de injuria sua propria (no one can take advantage of his wrongdoing) forms the basis of the historical slayer rules and subsequent statutes, preventing slayers from inheriting from their victims.

Probably the most well-known case (from law school) to articulate a slayer rule is Riggs v. Palmer, 22 N.E. 188 (N.Y. 1889). In that case a grandfather had executed a will leaving small portions of his property to his children and the remainder to his grandson. The grandfather subsequently married and stated that he intended to change his will to include his wife. The unhappy grandson caused his grandfather’s death in an attempt to secure his portion of the estate.  The court held that grandson was disqualified from inheriting because of his action and relied on the grounds of moral equity to articulate a slayer rule in American jurisprudence.

Forty-seven states have slayer statutes. Colorado is a Uniform Probate Code state, among many other states which have adopted that version of the slayer statutes.  Colorado’s is codified at C.R.S §15-11-803 and contains both a criminal and civil provision for determining that a felonious killing has occurred such that a slayer/felonious killer is prevented from inheriting from the person whom they slew.

This post will be continued next week. . .

© 2016 Barbara Cashman  www.DenverElderLaw.org

The Colorado bill on Personal Rights of Protected Persons

Late Summer Blooms

Late Summer Blooms

 

Here’s another article about a bill making its way through the Colorado legislature.  If the title sounds obscure, it’s because it’s designed to address a rather tragic situation which infrequently occurs but has terrible repercussions.  A “protected person” in this context is a person known as a ward in a guardianship proceeding, one who is incapacitated and who has a guardian appointed to make decisions on the protected person’s behalf because they are unable to make decisions and otherwise manage their own affairs.

Here’s a link to the bill, SB 16-026.  The bill is more popularly known as the “Peter Falk” bill because it concerns the late actor’s daughter, Catherine Falk, and her efforts to promote legislation that would make it easier for children of protected persons (like those under a guardianship) to challenge the monopolization or limitation by a guardian upon access to the protected person by the protected person’s family members.  The tragic scenario in the Peter Falk case was that Peter Falk suffered from dementia in his final years and his wife, Catherine Falk’s stepmother, was estranged from Peter Falk’s daughter.  Falk’s wife prevented Falk’s daughter from visiting her father and so she took her battle – an expensive one – to court in California.  Catherine Falk later organized her own effort to ensure that this type of scenario would not happen again, not just in the state where her father resided, but she made it a nationwide effort.  Visit her website here, which shows the ten states whose legislatures are currently considering the legislation.

If you think this kind of scenario would only play out for a celebrity, well . . .  think again! A large proportion of us, particularly us baby boomers, are in second marriages or otherwise part of a blended family – with all of its particular and unique personal dynamics.  According to this study by the Pew Center, remarriage is on the rise for Americans aged 55 and older.

I do estate planning for many blended families.  While many of the shrinking number of “Ward and June Cleaver” families (long marriage, children in common) would not consider this type of scenario to be likely to occur, as the baby boomers and our core complicated familial arrangements get on in years and continue to change, the Peter Falk bill presents an opportunity to curb restrictions which a guardian may place on who may visit and interact with “their ward.”  I have a hunch that more of us in my line of work are likely to encounter this difficult and sad scenario.

As we continue to live longer and grapple with more encroachments on our capacity – in the form of dementia and other physical, cognitive and psychological challenges, we will likely confront these difficult issues more frequently.  The debate about limitations on guardianships – of rights retained by an incapacitated ward, as well as the limitations on the authority of the guardian – are difficult issues with which people and courts must certainly grapple.

I will close with an observation from a favorite poet.

The great secret of death, and perhaps its deepest connection with us is this:

In taking from us a being we have loved and venerated,

death does not wound us without, at the same time, lifting us

toward a more perfect understanding of this being and of ourselves.

—Rainer Maria Rilke, Letter to Countess Margot Sizzo-Noris-Crouty, January 23, 1924

©Barbara Cashman  2015   www.DenverElderLaw.org

Colorado End-of-Life Options – proposed Colorado legislation

Archway at DBG

Archway at DBG

A bill has recently been introduced in the Colorado legislature that would legalize “aid in dying” or physician assisted death.  Last year I wrote a post about a previous version of this bill, then known as the “Death With Dignity” bill.  Just the name change to “end of life options“ and its references to “aid in dying” reflect a change toward a more neutral approach to this highly controversial topic.

A group of us on a bar association committee have examined this proposed legislation, solely for the purpose of looking at how it lines up with existing Colorado law.  Last year’s bill was based on Oregon law and its terminology contained many anomalies and terms from that state which are not consistent with Colorado law.  This new bill contains some changes from its predecessor and I have looked at last year’s bill alongside this year’s bill but the number of changes is not large. Most troubling to some of us is the rather lax standard for witnesses to the request process (set forth in §25-48-104 of the bill) as they are not nearly as stringent as the standards for executing a living will.  Sure, there are also emotionally-charged and value-laden subjective terms in the bill, like “in a peaceful manner,”  “peaceful death” and “peaceful and humane.”  These are some of the troubling aspects of the proposed legislation from my perspective as a Colorado estate and elder law attorney.

Even though I do own a crystal ball, I have yet to get my hands on a decent user’s manual for it. . . ! So, I can’t say what will happen with this latest bill.  It may well end up being chucked out once again by the legislature, only to make its way as a ballot initiative, in the same manner that Washington state got its legislation.

California was the most recent state to pass legislation allowing physician assisted death.  Governor Brown signed the End of Life Option Act into law on October 5, 2015.  You might recall that Brittany Maynard, the young woman who suffered from terminal brain cancer and whose physician assisted death was highly publicized, was a Californian who relocated to Oregon in order to avail herself of that state’s physician assisted death law.

Here’s a link to the Colorado Health Institute’s post about physician assisted death in the wake of Brittany Maynard’s death.  In case you’re wondering about the terminology, the Hospice and Palliative Care folks tend to prefer “physician assisted death” while the Compassion & Choices (successor to the Hemlock Society and proponents of the legislation in many states) folks prefer the term “aid in dying.”

Here is an excellent article on the diverse issues presented in the physician assisted death debate. The article covers the historical and cultural context for the aid in dying movement in this country.  I also found the observation about minority groups not being as keen on physician assisted death as Anglos (sorry, I still use this term from my college days) very telling.  We still must grapple with the historical legacy of our health care system’s treatment of the marginalized.  I have blogged about the Tuskegee experiment and I know from experience (having taken some of these calls at my office) that some newer immigrants to this country are keenly aware of their status as outsiders who might be viewed by the medical establishment as being powerless to object to removing a loved one from life support, for the suspected purpose of harvesting valuable organs.

Okay, so what does any of this have to do with the proposed Colorado legislation?  Well, plenty.  I am not taking a stand here for or against the legislation, but I do have a question that underlies the premise of such legislation.  The major base of support for physician assisted death in this country has been along the west coast, the states of Oregon (implemented their law in 1997) and Washington (approved by ballot measure in 2008) are pretty homogenous (mostly Anglo). I don’t think it’s a coincidence that many of the people who state they may wish to avail themselves of physician assisted death are better-than-average educated Anglos.  These are people who are used to being “in charge” of their lives, making choices and seemingly charting their own destinies throughout life.  These are many of the same folks who struggle mightily with quality of life and independence and autonomy issues as we age and became less independent.  This isn’t too far from the death denial and youth glorification I am so fond of writing about.  For many of these folks, the right to die is simply an extension of their self-determination in the medical context.  I  however, do not think it is nearly that simple!  Nor do I think the “illusion of control” that so many of us collectively buy into so readily extends readily to complex end of life scenarios.

I can certainly understand concerns about less medical intervention to prolong life, but this is not what we’re talking about here.  We are talking about extending a person’s health care self-determination right such that medical technology is used to end a life.  I will close with another question – does or should it matter that not many so people will use this legislation to hasten their deaths?

I’m sure I’ll be writing more on this interesting topic, so please stay tuned.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

 

Another post about caregiving and living arrangements

Santa Fe sculpture

Santa Fe sculpture

In looking once again at aging in place, let’s look at whether you really need to know what a NORC is and how it is different from a CCRC.

Conventional wisdom dictates that most of us would want to stay where we are as we grow older, but this isn’t always the case.  It depends on the person’s unique circumstances.  Some of these factors include:

The kind of home or condo you own – does it require lots of maintenance and have stairs or other factors that require lots of physical attention?

Is it necessary to drive a car to get groceries, visit friends, or get to social activities, or can you carpool or use public transportation?

Many people don’t think about the social isolation factor of staying in their own familiar home, but if an elder doesn’t have friends or neighbors nearby that can check in on them, elders can become isolated in a solitary and repetitive routine that can be deleterious to their emotional and mental health!

Refining the balance of social engagement and doing your own thing is something that is often required for successful aging in place.  Change is the only constant, but many of us will voice concerns about maintaining our “independence” at all costs.  With so many baby boomers reaching elderhood now, it will be interesting to see the myriad and innovative ways that boomers meet this challenge.  Apart from their huge number, boomers have a relatively high proportion of divorce and remarriage (blended families) as well as co-habitation.  There really is no “norm” for the boomers in this regard!

I think the best advice for folks nearing retirement and hoping to age in place and otherwise stay put is to consider all relevant options and to make a plan.  I particularly like the Dwight Eisenhower quote in this context:

In preparing for battle I have always found that plans are useless, but planning is indispensable.
In my line of work, I find that people often think that sticking to a plan (or more likely, just some fixed idea about how things would turn out) is the most important thing.  As if life were something we could plan and force execution of the plan!  We are so checklist and task-obsessed in our busy world, we tend to forget that the planning process is the both the end as well as the means – not the fashioning of a solid plan which often must be adjusted and sometimes jettisoned.  This is one of the reasons I often refer to the work I do for clients as helping them identify a strategy.

If you want to think about this aging-in-place notion a bit more, here’s a post from Fidelity about success factors to consider in staying put as you grow older.

One of the factors that can help elders age in place is staying put in a place, a community, a neighborhood, that has plenty of supportive services which many elders will need as they age.  Enter the NORC, the naturally occurring retirement community!

The NORC, yes it’s legit, it’s in Wikipedia!  NORCs have been broadly defined as communities where individuals or couples either remain in or move to when they retire.

Of course what is “natural” in the naturally occurring retirement community is a rather broad and generous concept.  This could be as simple as an apartment complex for elders, a housing development or a neighborhood.  As to the neighborhood concept, this has been well-developed by the NORC Aging in Place Initiative, which is a program of the Jewish Federations of North America.  The full name of the initiative is the NORC-SSP, “SSP” being short for supportive services program, which considers the social services appropriate and necessary to foster independent living for elders.

Some of the important factors include financial considerations, which vary widely among those already retired the “semi-retired” and those still years away.  People are generally working longer, and this is probably a good thing for the majority of people, but some have no choice in the matter.

In my last post, I looked at the importance of having this conversation about aging and caregiving arrangements before there is any crisis.  I often work with people (and their loved ones) who suffer from progressive diseases which practically demand such conversations – those with multiple sclerosis, Parkinson’s disease, ALS, as well as other neurodegenerative conditions which have both a physical and cognitive or mental health component.  Some of these folks will do the planning and have the financial ability to choose a continuing care retirement community (CCRC) which is also a kind of NORC.

As I am often reminded. . . . Aging is not for sissies!  It is, of course, best done with a plan including effective durable powers of attorney and other means to choose in the event of incapacity.

I’ll close with a quote from Ralph Waldo Emerson, who reminds us that human growth is always a possibility, no matter where we find ourselves:

Always do what you are afraid to do.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

 

Caregiving Arrangements and Elders: The Next Conversation We Need to Have

Youthful Exuberance

Youthful Exuberance

Death denial and youth glorification go hand in hand in our culture.  Today, I’ll look a bit more at some of the cost of denial in terms of aging and a loss in capacity for the majority of us.  I’ll start with some questions . . .  How many of us will voluntarily give up our car keys? How many will willingly concede to family or friends that we are having a difficult time managing our daily existence?  In my experience, the number is small.  It takes a combination of honest self-assessment, a well-developed self-awareness, a special types of candor, or just something catastrophic that “calls the question!”   For the former, I think of a cousin’s late father, just a few years older than my father (his cousin).  He was a retired physician and at one point detected some cognitive “slippage” which did not seem to be age-related.  He got himself to the doctor and shortly after getting his dementia diagnosis, updated his estate plan and moved to another state with his wife to live his remaining years close to one of his children.   His children no longer resided in the same state where they were raised.

Many of us would not be willing to make such a drastic change, perhaps because it doesn’t fit in with our idea of how our life in our elder years is “supposed to be” and doesn’t seem to fit with our idea of how we should “be independent” and not be a burden on loved ones.  But often the simple denial of the inevitable, along with the lack of planning and of stock-taking, means that we most certainly will be a burden on our loved ones.  I have joked with clients about this, that no client has ever informed me that they want to be a burden on their adult children . . . !

Of course there is also the financial piece of the planning.  Given the meager state of average retirement savings for many boomers and other elders, along with the hard reality that many retirees are just one health catastrophe away from bankruptcy, some folks take the “why bother?” approach as an excuse to do nothing.  Procrastination is, after all, an effective means by which to focus on what really matters – or at least what keeps us busy, which are seldom the same thing!

Okay, enough with the wisecracks. Death denial is only one side of the coin here so to speak, and on the other side is the youth glorification, its own form of denial of encroaching mortality.  In our present independence obsessed “aging in place” mantra muttering mainstream, we often fail to see the hidden costs of our independence and the burdens it often places on others.

Yes, I’m thinking of all the family (unpaid) caregivers.  The vast majority would not have it any other way most of the time, but the fact is that our longevity is getting longer and less financially certain all the time!  Couple that with the shrinking number of women (the ones who have tended to provide these services) who do not work outside the home who are available for such work) and it can cause some genuine concern.  More of us, particularly many of the divorced and single baby boomer cohort, will face much more interesting challenges with our often fractured and reconfigured family lives.  There is no “standard template” for a blended family relationship.

While I’m thinking of it, here’s a link to a recent US News & World Report article about family caregiving and how its future is changing.

Another aspect of the youth glorification beyond the self-loathing some elders feel is the denigration of the aged, the ideas that elders are no longer worthy because of their diminished capacity, usefulness or social or economic relevance.  This is when being an elder becomes a human rights issue!  Yes, I’ve blogged about the human rights of elder previously, but this is an evolving field.  I’ve recently learned about an organization called The Global Alliance for the Rights of Older People.  This organization is comprised of several international organizations as well as nongovernmental organizations (NGOs) who work together to raise awareness of the threats and challenges elders face in different parts of the world and supports the creation of international human rights instruments as tools to strengthen the rights of older people.

So I will close with an observation which I believe is illustrated by a Carl Sandburg poem featured below.  Is it really too difficult to filter through the noise and the modern day disease of incessant busy-ness to talk about this?  What if we could consider the present importance of our relationships which sustain us in a long term “what if” scenario that went beyond the planning for our inevitable demise?  Would that change the way we are living right now?  I think it would.  I also think quieting the mind and considering the stillness is one means of opening the door to welcome those questions for contemplation and consideration.

The Answer, by Carl Sandburg

You have spoken the answer.
A child searches far sometimes
Into the red dust
                          On a dark rose leaf
And so you have gone far
                         For the answer is:
                                                 Silence.

 In the republic
Of the winking stars
                          and spent cataclysms
Sure we are it is off there the answer is hidden and folded over,
Sleeping in the sun, careless whether it is Sunday or any other day

       of the week,

Knowing silence will bring all one way or another.

Have we not seen
Purple of the pansy
                   out of the mulch
                   and mold
                   crawl
                   into a dusk
                   of velvet?
                   blur of yellow?
Almost we thought from nowhere but it was the silence,
                   the future,
                   working.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

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

Memorial to Parents at a Child's Wedding

Memorial to Parents at a Child’s Wedding

 

Here’s another post about elder financial abuse and exploitation.  This is the first of a series of posts about one particular aspect of elder financial abuse – the misuse of a general durable power of attorney (POA) by an agent.  As many of us either already know or just suspect. . . . quantity does not equate with quality of life as more of us are living longer!  This concern about how we manage our longevity and plan for incapacity is a phenomenon that will affect us in increasing numbers as the baby boomers continue to grow older.

Elder financial abuse defined: According to the National Center on Elder Abuse (ncea.aoa.gov), financial exploitation (also called financial abuse) is the illegal or improper use of a vulnerable adult’s funds, property, or assets. Financial abuse is a crime, and each state has its own definition of financial abuse.

Here’s an overview of some of the “landscape” of elder financial concerns.  Lots of folks were relieved when Colorado finally passed a mandatory reporting act which allows for much greater law enforcement involvement in such matters.   In the “bad old” days, most folks calling the district attorney’s office were told the alleged abuse or exploitation was a “civil matter” unless it was a sufficiently large amount of money.  I also think it’s helpful to consider this development in light of the Colorado Court of Appeals’ ruling from 2013 in People v. Stell, a criminal case with application to Colorado’s Uniform Power of Attorney Act.  You can read more about that decision here.

A friend told me about a recent issues of the American Bar Association’s GPSolo magazine that focused on elder law.  You can read an article about Advocating for Elders Suffering Financial Abuse and Exploitation here.

There aren’t a lot of statistics available about abuse of financial powers of attorney, but it has shown that most victims of financial abuse or exploitation retain capacity, meaning that the principal can put an end to the agent acting on the principal’s behalf.  This is important because of how a financial POAs work.  They require third party acceptance (by banks, brokerage houses and so forth) and so if an agent is behaving badly, the principal must take immediate steps not just to revoke the POA that gives the agent the authority to act, but the principal must also notify third parties with whom the agent transacted financial affairs or may have done so to inform them of the revocation of the POA and that the agent suspected of misbehavior no longer has authority to act on the principal’s behalf.

I have worked with elders who have been exploited by their children.  It is exceedingly difficult for most parents to come to terms with the fact that their child is stealing from them.  Telling a third party about this can be painful and embarrassing, and unfortunately that is what many exploiters bank on – that the elder will feel ashamed and will not seek assistance.   When an elder contacts me about this I assure them that the majority of the POA abuse cases do seem to involve adult children.  This is not to diminish the number of non-relative predators out there looking for prey in the form of an isolated and trusting elder who may be sucked into a too-good-to-be-true business deal or simply a plea from a stranger or “long lost grandchild” who seeks financial assistance in hard times.

The exploitation of an elder by an adult child agent under a POA does not seem to have any “typical” types of red flags, as they are often dependent upon the nature of the parent-child relationship.  This can complicate matters greatly, particularly if the adult child is one of several siblings and is working to isolate the parent so as to make the exploitation easier.  Many of these behaviors in the POA context – control over the parent’s finances, dictating choices an elder has previously made independently, other life activities involving the “care” of the elder, along with limiting access to others who might provide emotional support or making such communication difficult, bear a striking resemblance to the behaviors of a person using such tactics for their own gain in the form of psychological or emotional abuse.  When you couple an elder’s isolation and frailty with a person who withholds information from an elder and access to others who would be allies, this can be a very harmful mix.

When an agent under a POA keeps information from an elder and does so in a secretive or non-transparent manner, this is a serious “red flag.”  For this post, I will focus on prevention – what an elder needs to consider before signing a POA.

What are some steps people can take to help prevent financial exploitation by an agent under a power of attorney?

  1. Choose you agent carefully! This is by far the most important aspect of using a POA. Name someone you trust with money who isn’t secretive and can answer questions about finances without difficulty
  2. Have a good idea of what your assets are and communicate how you want them to be managed. This will help inform your agent about how they can discharge the fiduciary duty which the agent owes to their principal
  3. In the event of incapacity, it is important that the agent have an idea of what wishes are about what to spend first and how money might be invested or investments consolidated, so that these instructions can be written for the agent (not too detailed, because things are always subject to change); and whether the agent has the authority to make gifts.
  4. Picking an agent who will take extra care in matters regardless of the principal’s capacity. Keep in mind that capacity and competency are not typically either/or kinds of propositions.  Just because someone has been diagnosed with dementia doesn’t necessarily mean the person lacks capacity.  Conversely and more commonly, an elder often does not receive this diagnosis (which often isn’t conclusive of much of anything).  Dementia can often be a long and winding path with many periods of lucidity or intermittent “sundowning.”
  5. Remember that a POA remains revocable as long as the person retains capacity to revoke it.  The principal should have some idea of what would constitute grounds for firing an agent or revoking the POA and how easy or difficult this might be on an emotional level.

So what might this kind of POA abuse or exploitation look like?  Often the 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 the agent?  What I have seen on more than a couple occasions is an agent use a quitclaim deed to accomplish this transfer.  One was for “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.

In my next post on this topic, I will be looking at the steps an elder can take to stop an agent and remedy a situation created by a misbehaving agent or an agent who has been financially exploiting or abusing an elder.

© Barbara Cashman 2015  www.DenverElderLaw.org

Medical Durable POA and Mental Health Services – a Volatile Mix

Orca near Vancouver BC

Orca near Vancouver BC

 

The medical durable power of attorney (MDPOA) is an important document that all adults should have.  Why? As our population ages and our longevity is extended, our chances of becoming unable to give informed consent for medical care increase.  I have previously written about informed consent in the context of medical care, but suffice it to say that when a person is unconscious, unable to communicate or otherwise too “out of it” to give informed consent to decide yes or no to a proposed course of treatment – it is extremely helpful to have a substitute decision maker named who can decide for you.  In this post, I will not revisit the smorgasbord of health care planning documents as I have done previously, but I will instead focus on a much more obscure and troublesome intersection in the elder law field: where persons attempting to assist with the requested care of an older adult who has previously been diagnosed with mental illness can get caught in a thicket surrounding access to the mental health information.

Why is this a big deal – can’t an adult (known as a “principal” in power of attorney terms)  with mental illness simply designate an agent under an MDPOA just like any person, assuming that person is not under a legal disability such as a guardianship?  Surely I am remembering that guardianship is not automatic by any stretch for an adult with mental illness or with developmental disabilities. . .

The answer is yes, but . . . well, it can be a bit more complicated than that.  As more adults – especially the aging baby boomer cohort – reach retirement age, there are more people who will have benefited from a more open attitude toward the provision of mental health services in this country.  Just because there are mental health diagnoses doesn’t mean they have to overly complicate that person’s naming of an agent under a health care power of attorney, but they sometimes result in that.  Most of us don’t think about this aspect in the context of “health care” and the MDPOA, but there are important details that can trip up our longevity planning and complicate access to information and assistance for an adult which otherwise might easily be provided by family members or other loved ones on whom we rely.

What does this scenario look like?  This doesn’t come up  very often, but when it presents itself, it is often very challenging to sort out and even more difficult to come to an arrangement that meets the needs of all those involved.  On a continuum, the most straightforward situation is with a family member who is seeking to name, in writing, particular persons as his or her agents.  In this scenario, it is a good idea to have a customized MDPOA which sets forth the scope of the agent’s powers, so it is clear that they include mental health matters.  Where it gets much more difficult is where the adult may want to name an agent but doesn’t feel clear about the mental health decision-making authority or where the person’s capacity to execute a MDPOA may be in question.  The most challenging situation is where a concerned family member seeks to petition the court regarding an elder adult, who might otherwise be a person who is incapacitated under the guardianship statute, and for whom a doctor’s letter would generally substantiate the nature, extent and cause of the incapacity, except that if mental illness is the primary diagnosis, then much different protocols apply to the protection of that information, and there may also be warranted a different type of proceeding in the probate court.  Let’s take a closer look at some of these issues.

Here’s a link to an overview of the treacherous terrain involved here.  There is also something known as a psychiatric advance directive (PAD).  In Colorado this means that a MDPOA may have instructions, or instructions may be given to the agent named in the MDPOA which specifically relate to the provision of mental health services, including psychiatric medications or hospitalizations.  These instructions must appear in the MDPOA as they may not otherwise be recognized in a “stand alone” document.

Some of the problems originate in the different sources of law – federal law of the Health Insurance Portability and Accountability Act HIPAA relating to protected health information, for example, and state law relating to protective proceedings (guardianships and conservatorship) and mental health proceedings. The appointment of an agent under an MDPOA is governed by state law.

HIPAA is a federal statute which has had a tremendous impact on health care providers since it was promulgated in 1996.  My own MDPOA form refers to the regulations (from the Code of Federal Regulations) which cover the statute’s provision regarding who is a person to whom information can be released.  The codified HIPAA rules cover protected health information and its access, including electronically transmitted health records and require consent for the disclosure of such information to third parties.  Where an agent is named to make decisions on behalf of the principal and the principal cannot give informed consent to treatment, the agent obviously requires access to the medial information in order to make a decision about treatment options.

Mental health matters are generally governed by state law.  In Colorado, a statute governs the particular types of providers in the mental health field, including psychologists, social workers, counselors, therapists and others.  See C.R.S. § 12-43-101 – 805.  Note that HIPAA gives an exception to the general rule requiring consent prior to sharing of information regards “psychotherapy notes” which are a special form of protected information and the regulation is fairly detailed.  See 45 C.F.R. § 164.508(b), (c).

The connection between federal HIPAA law and state mental health legislation and other sources of law generally concern the disclosure of information.  While HIPAA is a comprehensive federal statute, it is not designed to preempt state law.  The CFR relating to substance abuse regulation (which fall under the umbrella of mental health for HIPAA purposes) provides that the federal law is designed as a “backstop” of sorts in that if the state law is more protective, it controls, otherwise the federal law often provides the minimum standard.

There has been some recent criticism of Colorado’s rules relating to what constitutes an “imminent danger” for purposes of an involuntary commitment (a/k/a 72 hour hold).  Finally, for more information, see this article about HIPAA and mental health records.  That’s all for now, stay tuned for developments.

©Barbara Cashman  2015   www.DenverElderLaw.org