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

The Revised Uniform Fiduciary Access to Digital Assets Act

denver elder law

Siennese Door

This is an important development regarding the Uniform Law Commission’s Uniform Fiduciary Access to Digital Assets Act (UFADAA).  I learned that there is a new and revised version of the uniform law which has in the last few days been approved by the ULC.  It is known as the Revised Uniform Fiduciary Access to Digital Assets Act (2015).  In my last post on this topic in May, I described the short-lived history of HB 15-1189, the UFADAA in the Colorado legislature.

In June, yours truly was interviewed, along with Connie Smith of Fairfield & Woods, for the article “Assembling the Digital Legacy” which appeared in Law Week Colorado.  The article, written by Doug Chartier (sorry, no link as it is paid subscription only), described the ever changing landscape of identifying and managing digital assets for the living (as agent, conservator or trustee) or for the deceased (as personal representative).  The article reads a bit like an obituary for the UFADAA, which was enthusiastically presented in nearly two dozen state legislatures but met stiff opposition from diverse groups including (in Colorado) the Colorado Bankers Association and the ACLU.  Only one state has adopted the UFADAA so far and in most states where the legislation was introduced the UFADAA has already been rejected. This over what is broadly termed as “third party privacy concerns.”  The basic concern would be, to give one example, for those with whom the digital asset owner would have communicated – say via email, and whose private and protected information would be disclosed to a fiduciary acting on behalf of another (as defined in the UFADAA, but generally an agent under a POA, a personal representative of an estate and so forth) without the third party’s knowledge or consent.  It isn’t just about reading mail anymore, or emails for that matter!

Here’s a recent article in Forbes magazine about how forgetting to make plans about digital assets like social media can create post-mortem lawsuits.  One of the spot-on observations made in the article was about the difficulties in transferring digital assets and its potential to create unplanned business succession challenges as well as ongoing estate planning difficulties.  Getting back to the Law Week article, both Connie Smith and I agreed that online services for storage of passwords, usernames and other credentials for online accounts (digital assets, broadly defined) are problematic because of the concentration of personal data.  I give my estate planning clients an organizational “letter of instruction” which has a page for these online accounts and other digital assets. At this time I think the best way to maintain this information is in paper format, which can be easily updated on a personal computer and printed out periodically.  And no, you shouldn’t call the document “my online accounts and how to access them,” but maybe come up with something more creative!

In the meantime, don’t forget about making plans for those digital assets.  Here’s a helpful article from the American Bar Association on this topic.  Unfortunately, I wasn’t able to link to the revised version of the UFADAA on the Uniform Law Commisioner’s website – it does not yet appear to be available there.  I have a word version of the revised UFADAA, but haven’t had the chance to read it while comparing its previous version.  I’m sure that will be a topic of a future blog post. . . . !

©Barbara Cashman  2015   www.DenverElderLaw.org

A Probate Judge Finds Same Sex Common Law Marriage in Colorado

Springtime in Italy

Springtime in Italy

 

Last week I received news on a listserve that the Jefferson County District Court, sitting in probate, granted relief to a woman who claimed she was the surviving common law spouse of a decedent.  The two women had cohabited together for many years.  As is common in states recognizing common law marriage, a person claiming to be a surviving common law spouse must file a petition for intestacy and establish that the petitioner was the surviving spouse of the decedent by virtue of proving certain elements of the existence of a common law marriage.  (A surviving spouse who has married or entered  into a civil union with another person already has a certificate which shows this spousal relationship.)  This proof of common law marriage may sound straightforward, but it is not.  Colorado is one of only a handful of states which still recognizes common law marriage.  The trickier issue (which crops up in the dissolution of marriage context) of when the common law marriage began is not often before a court when it makes a determination in a decedent’s estate administration that a person is or is not a decedent’s surviving spouse.  The only salient issue for those purposes is whether the couple was married at the time of the decedent’s death.  This is what the Jefferson County District Court recently determined.  This is distinguished from the marriage dissolution context (in domestic relations proceedings), where the relevant question is when the common law marriage began.

Here’s a redacted excerpt of Judge Lily Wallman Oeffler’s ruling of May 21, 2015 on a Petition for Adjudication of Intestacy and Formal Appointment of Personal Representative:

The Court, having reviewed the Petition and the applicable law, FINDS and ORDERS as follows:

THE COURT FINDS that Decedent and Petitioner MRS. SMITH have satisfied the two elements of common law marriage: 1) the mutual consent or agreement to be married; and 2) a mutual and open assumption of a marital relationship. People v. Lucero, 747 P.2d 660, 663 (Colo. 1987). The couple cohabitated for approximately 30 years, raised three children together, held real property and bank accounts in joint ownership, participated in a marriage ceremony in front of friends and family, recited marital vows, and wore wedding bands.

THE COURT FURTHER FINDS that “the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws.” Kitchen v. Herbert, 755 F.3d 1193, 1199 (10th Cir.) cert. denied, 135 S. Ct. 265, 190 L. Ed. 2d 138 (2014). Further, “a state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.” Id.

IT IS HEREBY ORDERED that, under the ruling in Kitchen, Petitioner is Decedent’s common law spouse, and is qualified and hereby confirmed to serve as the Personal Representative of Decedent’s estate.

So, it turns out that a same-sex couple can “hold out” as a married couple for common law marriage purposes.  Some of the indicia of such marriage will differ from those of an opposite sex couple (e.g., for a same sex couple who wasn’t able to file joint tax returns), but these will not obviously operate as  a bar to a court’s finding of the existence of a common law marriage.  It seems the institution of marriage is, in many respects, alive and well as a result of the marriage equality movement!

So, what exactly is “common law marriage” and why should any of this matter?

Common law marriage is a frontier relic.  England abandoned it in 1753, but it continues on in the states of Colorado, Kansas, Utah, Texas, Iowa, Montana and a couple east coast states.  It isn’t even really “common law” in that it is regulated by statute (except in Montana).

Many of us are celebrating  this important development of the judge’s decision excerpted above, but not without some concerns in the backs of our minds. . .  after all, marriage has evolved and changed over the course of human history and has served a variety of interests including political, economic, diplomatic, religious and other aspects of regulating human behavior and providing stability in the form of certain protections, particularly for children and more vulnerable members of society, which have historically been women.

What about the nature of a relationship between an opposite sex couple who choose not to marry but have children and a long term relationship together?  Are these considerations likely to be similar to those of a same gender couple?  This is one of the places where things get rather complicated.

And here’s another important question – What if the couple does not want to be treated as married and wants to have a relationship that is nonmarital for all intents and purposes – is this likely to be more difficult?

The likely answer to this second question is  a qualified “yes.”  While a straightforward answer to that question may be that the parties can contractually agree to a living together or cohabitation agreement, the ruling above shows the fluid nature of what is deemed to be marriage.  The simple fact that a couple may not want to be considered married for purposes of the law is not conclusive of such arrangement.  In my mind, couples who want to be considered in a relationship of a nonmarital kind can still document their relationship as such and avail themselves of certain limited protections and benefits as a result of such relationship through the use of a pre-civil union statute governing contractual arrangement known as designated beneficiary agreements.  More about that in a later post. . . .

Important to note here is that common law marriage in the U.S. does not, in contrast to many a layperson’s thinking, have a particular minimum time period associated with its existence.  This stands in contrast to cohabitation laws in many other countries such as Canada, where cohabitants are known as “common law partners” and the relationship is governed by a law passed by the Canadian Parliament in 2000 which does make marriage and cohabitation look much more similar.  This is also the case in England, where the Worker’s Compensation Act of 1906 recognized non-marital forms of co-habitation.  The law in England looks  to concern itself largely with the conferring of an economic benefit on the other partner and considers in that context who is appropriate object for the law’s protection.

Nearly three years ago I wrote a couple blog posts about legal and financial considerations for nontraditional relationships and I don’t intend to revisits those now in light of all the U.S. Supreme Court and other important decisions (including the Tenth Circuit’s Kitchen decision cited above) concern same-sex marriage, but as marriage equality seems more within reach, it seems only logical that we should take a look at the bigger picture of marriage in this country and why so many young (opposite-sex) couples choose to have children but not get married.  This development challenges the protections afforded for married couples – should they still be a “monopoly” for them?  Remedies for children and more vulnerable partners are available under contract law, but they are not consistent and vary wildly from state to state.

What about a Colorado couple (married or partners in a civil union) who want to contract away some of their rights arising from the spousal relationship?  Colorado adopted the Uniform Premarital and Marital Agreements Act in 2012 and it applies to agreement entered into after July 1, 2014.  The law is codified at Colo. Rev. Stat. § 14-2-301 et seq.    The new law made important changes regarding access to counsel and other important requirements about how the agreement is reviewed and which affect the waiver of important rights.

So the question remains . . .  how do we predict the future, make informed choices  and otherwise advise clients about what legal obligations are owed to a cohabiting non-spouse and how might this be affected by a burgeoning definition of common law marriage?  Stay tuned!

©Barbara Cashman  2015   www.DenverElderLaw.org

 

Fiduciary Access to Digital Assets – an update of sorts

Italian Wall

Italian Wall

Well, it’s been a while since I’ve written a post about digital assets in the probate context.  This year, Colorado was one of twenty-three states whose legislatures introduced the Uniform Fiduciary Access to Digital Assets Act (UFADAA).  Keep in mind that the uniform act was endorsed by the National Academy of Elder Law Attorneys (NAELA) of which I am a member.  The Colorado House Bill to enact the UFADAA was introduced at the beginning of the year, HB 15- 1189, and can be read here.  Its short lived history is this: introduced in the Colorado House and assigned to the Judiciary Committee on January 29, committee discussion took place on February 19, and then on March 12, 2015, the House Judiciary Committee voted unanimously to postpone indefinitely further action.

Our legislature has postponed further action on this uniform law, but it doesn’t mean that it isn’t important for people and estate planning attorneys to address issues concerning access to digital assets by fiduciaries in the probate context.  According to the bill fiduciaries included the following: a personal representative of a decedent’s estate (where there is a will or codicil or also a special administrator); a conservator acting on behalf of a protected person; a trustee acting under a trust; and an agent acting under a durable power of attorney.  The bill specifically addressed each type of fiduciary and their access to a digital asset in further detail.

The Colorado Bar Association subcommittee charged with discussion of this uniform law as a Colorado bill also discussed Colorado-specific inclusions to the Uniform Act, like access by a “successor” as defined in  our probate code when a small estate is collected by affidavit. Basic Information about using this form is found on the Colorado State Judicial website, www.courts.state.co.us and searching for the JDF 999 form, with instructions found at JDF 998.

Specifically excluded from application is access by an employer for an asset used by an employee in the course of the employer’s business.

So HB 1189 didn’t become law because it died in committee, but that doesn’t mean that at least some of us estate and elder law attorneys (especially ones like me who prefer to use their own form and not someone else’s) don’t still include provisions regarding digital assets in a durable power of attorney form.  Colorado remains in the majority of states which have no legislation regarding digital assets in the probate law context, but that doesn’t mean we should feel comfortable remaining complacent and not doing anything to plan just because our legislature didn’t pass this important legislation. . . .  There are step we can take to help ensure that a fidicuairy will have access to important fiduciary assets, but without a state statute to that effect, it is much less certain exactly what type of access will be allowed or recognized.

So here’s a bit of a review of why these measures are important to include in a general durable power of attorney and a will or trust:

  1. Identifying and providing an inventory of one’s digital “footprint” will greatly simplify an agent or other fiduciary’s ability to take control of an incapacitated or deceased person’s digital assets in keeping with the stated desires of the person giving the power – like a principal under a POA, the settlor of a trust, or a testator (the maker of a will). This can be done easily by keeping an update listing in a place that is discoverable or known to an agent, for example.
  2. Giving a fiduciary access to important information like usernames, passwords and the like, will greatly simplify the fiduciary’s efforts and ability get access from a service provider or to shut it down. The law in this regard is complicated – it involves user agreements, which often are based on the law of a state where the service provider is headquartered and not in which the user resides, and implicates also the federal law relating to the use of the internet.
  3. When a person gives another, such as a person acting as a fiduciary for that person, the authority to act, there should also be some instructions about what should be done with the particular asset. This will obviously makes the fiduciary’s job much simpler as a job description takes much of the mystery out of such an undertaking.
  4. The person who is the account holder should also expressly authorize service providers to disclose private information to a person’s fiduciary so as to evidence the person’s intent to give access to such information and to provide the authorized access to the information or data as a consequent of such access. This is why some of us, myself included, include specific clause to this effect in a durable power of attorney.

That’s all for now, but I will keep you posted as things continue to develop.

©Barbara Cashman  2015   www.DenverElderLaw.org

 

The Current Conundrum of Dementia and Consensual Sexual Relations

Assisi flowerbox

Assisi flowerbox

As promised in a previous post, I’m taking another look at this topic which is certain to become more controversial as situations in long term care facilities continue to present themselves.  This topic is of recent relevance due to the acquittal of an Iowa man  who was tried for sexual abuse of his now deceased wife, who suffered from dementia and resided in a skilled nursing facility.  After eight days of trial, the jury deliberated nearly two full days to deliver their verdict.  This criminal trial may be the first time a jury has considered the issue of a person’s capacity to consent to sexual relations when a person has dementia.

The man tried was a 79 year-old former Iowa state legislator (Mr. Rayhons) who was charged with having sexual relations with his wife at a long term care facility.  The prosecution had argued that exceptions to the criminal sexual acts statute did not apply because the husband and wife were not cohabiting.  This case ushers in a new era for the important question of how to balance rights and protections.  As the age of the numerous baby boomers increases, this question will undoubtedly be raised again, particularly when the number of divorced or remarried boomers begin to occupy more space in skilled nursing facilities or other communal living.  Sexual expression in SNFs is not necessarily a taboo subject.   The Hebrew Home at Riverdale (NY) first published their “Policies and Procedures Concerning Sexual Expression” in 1995.  In it is found empowering statements about residents’ rights to sexual expression and special factors apply where a resident has cognitive impairment which implicated the ability to form and give consent.    I’ve come up with a not-very-short list of some of the big picture questions raised by this case:

  • What is the requisite capacity required to consent to sexual relations for an older adult?

 

  • How can this capacity be expressed appropriately?

 

  • Is the nature of consent to sexual relations different for married persons?

 

  • Does the nature of sexual expression change as we age?

 

  • Who is responsible and how is a determination of consent made when the resident has a guardian (a person who is legally responsible for an incapacitated person)?

 

  • How can a health care provider or an adult child interfere with or help support an older person in their choice of sexual expression?

 

  • What is the zone of privacy for a married couple when one spouse lives in a skilled nursing facility or similar group setting?

 

  • Is consent to sexual relations for a person with dementia actually a medical issue appropriate for a doctor to make?

 

  • If a person with late stage dementia is not capable of giving consent, would this make any form of the person’s sexual expression tantamount to rape?

 

 

  • In looking at dementia and intimate relations in long term care facilities – what are the stakes in the rights vs. protection continuum?

 

  • What about divorced or otherwise single folks and all the blended families? How many people are involved in the notification and determination process?

 

  • Is this a capacity issue or an ageism issue? I would say the this involves both issues . . .

In the Rayhons case, the late Mrs. Rayhons’ daughters took their concerns for their mother’s ability to consent to sex by taking the question of capacity to the doctor on staff.

What this case clearly demonstrates is the number of difficult questions presented in identifying the factors for considering sexual expression in the skilled nursing facility.  There is a present need to establish some basic consensus about residents’ rights to sexual expression in long term care facilities.   Groundwork needs to be taking place now.  How many of us consider this question when we visit a facility to consider housing options?

I will note that in this post I am not looking at how sexual expression rights in long term care facilities are implicated when residents also suffer from mental illness or when there are sex offenders residing in the facility.  Colorado does not at this time have any particular laws or regulations regarding sex offenders (or sexually violent predators) in long term care facilities, so it seems unlikely that an applicant for housing in a particular facility would be barred as a result of sex offender status, but the facilities themselves may adopt or follow their own policies in this regard so as to minimize risk to its residents.

©Barbara Cashman  2015   www.DenverElderLaw.org

Part II: Is Physician Assisted Death Coming to Colorado? (Not this year)

At the Chatfield Wetlands

At the Chatfield Wetlands

This is the continuation of my previous post about the Colorado House of Representative bill on physician assisted death, on the topic “Concerning a Terminally Ill Individual’s Freedom to Make End-of-Life Decisions, a/k/a the “Colorado Death with Dignity Act.”

If you’re curious about the debate in other parts of the world, here’s a link to a recent article in The Guardian.  And here’s a New York Times article from last year on the topic of “aid in dying,” as there are variety of names for what is collectively physician assisted death (PAD).  Well, back to the Colorado bill.

I will continue in this post with some of the concerns I have with the proposed legislation – from the standpoint of what is in the bill (terminology) and how it works (philosophy).  I have difficulties with the term “informed decision” and how it relates to the principle of informed consent – the process for getting permission for a patient prior to conducting a healthcare intervention.  Based on the definition in (7) of section 25-47-102, this “informed decision” doesn’t look like informed consent.  What is it that the doctor advising a patient about this life-ending process must advise their patient? Some of it is informed consent, but it seems to be bigger than that and only for purposes of this legislation.  This is vague and troublesome indeed.   Can’t we just call it informed consent for ending one’s life? Will that agitate the medical community? This is another unsaid conflict that should not go unnoticed in this bill.

One of the stated concerns relating to a person’s capacity in this bill is that the person be “capable” and not otherwise suffering from a depression-impaired ability to make an informed decision.  This bill seeks to pigeonhole diagnoses, to impose clarity in another rather gray area.  There are some terminal diseases, like Parkinson’s, which often have a psychological or psychiatric component that cannot be easily extracted from the disease itself.  In my experience, I have seen disability insurers seeking to exclude from coverage a person with a diagnosis of Parkinson’s disease because those persons often also have a diagnosis of depression that accompanies Parkinson’s.  I use this by way of example only, to assert that it is not at all simple for any health care provider to extract a psychiatric or psychological disorder such as depression (as stated in the bill at section 25-47-107) that accompanies a diagnosis or prognosis or course of disease progression from that which impairs one’s ability to make an informed decision.  There is a psychosocial component to many terminal illnesses, you can read more here about treating depression in advanced cancer.

This goes back to the rather slippery nature of the informed decision versus informed consent distinction.  The medical-technological focus on dying in this bill is on death not as a natural process of life but as a medical problem.  I believe this is in large part what perpetuates the avoidance and the denial of death in our culture.  Using emotional restraint, facing death stoically and by deciding bravely to “assert control” to foreshorten any disturbing developments of the disease progression or any needless suffering are all bureaucratic way of making death “ordinary” in the sense it happens to us all.  This extends the social isolation of the dying person, making their suffering worse, a dying person is in this way of thinking simply a useless reject of a person.  The “brave choice” of a person in this context converts the life-ending decision into a glorified act of autonomy.  The individual’s decision is theirs alone.  This approach of physician-assisted death (PAD) stands in contrast to the family unit or community based models of hospice and palliative care, which seek to lessen pain, maximize quality of life for the dying and hold those persons in their identities.  In this respect, PAD becomes a means of the individual’s attempt to fight back against the ignominy of illness, of life-robbing disease which compromises one’s social identity.  I don’t buy it!

Another problematic inclusion is the family notification provision in section 25-47-109.  I am not sure why this in the bill. I don’t really understand what its point is, it seems to be about the doctor recommending some kind of reconciliation if the patient is estranged from his family, which may have nothing to do with patient’s decision to end his life with assistance from a doctor. It seems to hint at including the family in a person’s decision, but it is a feeble attempt at such.

The last point I will raise specifically about this bill, is its reference in section 25-47-103: “Individuals permitted to request life-ending medication”

(1) that an individual is qualified to make such request for life-ending medication if the individual is (a) an adult; (b) is capable; (c) is a Colorado resident; (d) is suffering from a terminal illness. . . and (e) has voluntarily expressed his or her wish to die.  

(2) “A person does not qualify under this article solely because of age or disability.”

This seems to be saying in (1) that those whose quality of life was fully autonomous and who suffer from a terminal disease which implicates that autonomy, by its diminution by degrees, or by an aversion to “suffering” or one’s inability to “control” it – those are the persons who are likely to avail themselves of the life-ending process, for whom this legislation is designed.  It implies in (2) that the disabled and elders who are perceived as “dependent” on others or with some diminished quality of life and whose lives are often pitied by the “young,” able-bodied and independent, would otherwise qualify for life-ending medications based on some perception of the disabled or elder’s quality of life.  I do not imply here that there is any unified voice of the disabled community or of elders voicing an opinion about this, I find this language offensive.

More indifference to the suffering and social isolation of the terminally ill and dying persons is not the answer.  To hasten the demise under the banner of the socially acceptable terms of “autonomy” and “dignity” is not a way of de-medicalizing or re-humanizing the dying process, rather the PAD is a feeble attempt to make death “less threatening” and I just don’t buy it.  The lack of ritual around dying, along with the absence of any recognizable system of meaning around dying and death has resulted in the further isolation and stigmatization  of the terminally ill or dying person.  This bill to allow PAD does not promote death with dignity, rather it offers the socially acceptable perpetuation of the illusion that death con be contained and controlled and need not be “disturbing.”

Update from Friday Feb. 6th’s evening legislative activity: The House Health Committee voted to kill this bill (HB 15-1135) on an 8-5 vote.  Two of the Democrats on the committee joined the Republicans to oppose it.  

©Barbara Cashman  2015   www.DenverElderLaw.org