Is Physician Assisted Death Coming to Colorado?

The Road Only Appears to End

The Road Only Appears to End

I recently looked at the Colorado House bill 15-1135 on the topic “Terminally Ill Individuals End-of-Life Decisions, a/k/a the “Colorado Death with Dignity Act.”  You can read the January 9, 2015 draft here.  There are, as of February 2, 2015, two senate sponsors and an updated version of the bill.  My first challenge with this bill is the how it is marketed – the idea that “death with dignity” can only be accomplished by one’s own hand with the assistance of a physician.  If this sounds provocative, it is – but it implies that the disease process part of a person’s life or the dying from the insult of disease is somehow not otherwise dignified.  Here’s a link to a Jan. 27, 2015 Denver Post article about this proposed legislation, and a link to another appearing on Feb. 1,2015.  This is the first post in a series.

I find myself in the same camp as the hospice and palliative care community as far as the title is concerned.  The idea that the way to die “with dignity” is through physician assisted death by one’s own hand is offensive.  End-of-life decision making is an area in which Colorado residents and patients have many resources.  The title implies otherwise and is simplistic and misleading.  I also find the bill’s descriptions of “alternatives” such as hospice care and palliative care are confusing and misleading. I am unable to come up with a scenario in which physician aided death is a true “alternative” to these.  I think in all cases with which I am familiar, patients have already been under the care of a doctor for hospice or palliative care.  The physician aided dying is more of an “end of the line” complement of sorts to these well-established, even if not widely-recognized forms of medical care.  The primary distinction between these, what makes physician assisted death (PAD) a real alternative to hospice and palliative care is that physician assisted death is not a natural death as the result of a disease process.  PAD represents a premature death, hastened by a number of different perceptions and choices about what one’s life is for as well as one’s own ideas about loss of autonomy amounting to loss of dignity and as needless suffering.  In this respect, terminal disease is a failure of one’s ability to control an outcome, and fear of a change in one’s identity in the world due to a change in one’s relationship to others.  I think physician assisted death further isolates and marginalizes people and the dying in particular.  It is in the time of weakness and vulnerability when we need each other.  This is dignity, what it means to be human.  Here’s a link to a recetly posted youtube by Jean Vanier, of L’Arche Internationale, speaking to the English House of Lords, on why the strong need the weak.  I think it easily translates into why the healthy and living need the sick and dying.

Another big distinction between PAD and hospice and/or palliative care is the philosophical problem of distinguishing physician assisted dying from medical care.  That difficult distinction crops up throughout the bill with the challenge of identifying informed consent in a way that is a major departure from its history.  The Greek roots of the word “euthanasia” mean “easy death.”  There are different types of euthanasia, as described in this abstract from pubmed.gov and the moral dilemma presented by its practice is ancient.  Euthanasia is premised on the ending of life and may be voluntary or involuntary and active or passive.  Suffice it to say there is no bright line in this arena, only slippery slopes leading in both directions!

One of those slopes I find particularly troubling concerns the definition of “capable” in the bill.  This is defined in section 25-47-102(3) and it is overly broad.  We don’t have any context for this meaning of “capable” – capable to do what exactly?  This is the touchstone for capacity determinations in the field of estate and elder law.   Is this definition of “capable” for giving informed consent for health care purposes or something different?  I conclude it must be the latter, so the lack of a definition is a big problem.  Would a court need to determine someone “capable” to make a decision under this statute?  Under guardianship law, only those who have had a guardianship lifted are “adjudicated” as “capable.”  All adults, persons aged eighteen and older, are presumed by the law to have capacity.  “Capable” as used in this draft bill is too vague. Another part of the bill (the consulting physician confirmation of 25-47-106(1)(c) refers to this trifecta: requiring that the individual be capable, acting voluntarily and has made an informed decision.  I find this safety net here very interesting – what it is designed to protect against . . .  well that is not discussed anywhere, it is left unsaid.

The absence of any aspect of spirituality is telling – but there are those who think that leaving out the spiritual aspects and the soul-learning of the dying process are too hot not to handle.  See M. Scott Peck, “The Denial of the Soul: Spiritual and Medical Perspectives on Euthanasia and Mortality” (1997: Harmony Books) at 209.

Death is fearful, yet we carry our death within our lives.  Is the essential fear we are talking about in the PAD regime really a fear of loss of control, over our autonomy and the descent into helplessness?  I think in this respect it is a fear of life, life’s uncertain course that leads to our inevitable demise.  This fear of life is the adjunct of the fear of death.   Many of us maintain a certainty that our life is predictable and we can control things that happen to us, if we maintain that fantasy then most certainly are disease, disability and death an affront to our choice, an assault to our personal belief system and no longer simply part of life.  What if we were to do as Lau Tzu suggests – “take care with the end as you do with the beginning.”

I will close this first portion of the discussion of this proposed legislation with an insight from David Wendell Moller’s book “Life’s End: Technocratic Dying in an Age of Spiritual Yearning,) (2000:Baywood) at 159:

 . . . the sequestering of dying patients protects ordinary people from the terrorizing issue of death. . . . [the hospital’s] technological coordination of dying serves to submerge, deny and organize the dying process into professionally restricted categories which restrain the expression of personal pinings and fears for both providers and patients.”

It seems to me that the PAD bill serves to further the marginalization of the dying.  More about that in my next post.

©Barbara Cashman  2015   www.DenverElderLaw.org

 

The Medical Power of Attorney and Medical Advocacy: Two Roles are Better than One

Centennial Estate Planning

Along the Banks of the South Platte

How can we help elders navigate the daunting medical system and help them make the best choices for their needs and values?  Last week I attended a lunchtime continuing legal education program sponsored by the Arapahoe County Bar Association and presented by Janine Guillen, an attorney and registered nurse.

Janine told of her personal experience with her mother’s health care issues toward the end of her life and how she advocated for her mother while her sister served as their mother’s health care agent.  Many of us come to be familiar with these matters based on our personal experience with elder parents and their health challenges.  Towards the end of their lives, I was health care agent for both of my now deceased parents.  I remain skeptical about a health care system (Medicare) that pays its provider for services per intervention, and the greater the number of interventions for elders, the higher the mortality.  This post will give a brief overview of the two roles along with some helpful organizational strategies that were proposed.

Yes, these jobs of health care agent and health care advocate can be split.  They are often assumed by a single person, but if it is often helpful and sometimes necessary to split up the roles for assisting an elder.  A result of this is that it can often facilitate good communication among siblings and allow adult children to share some of the challenges and burdens of helping an elder parent.

What your health care agent (agent under a medical durable power of attorney (MPOA) can do for you.

Your health care agent is the person named in a medical power of attorney to make medical decisions for you in the event you are not able.  The types of decision an agent can make can be broad or narrow, general or specific and the agent’s authority is typically set for the power of attorney document.  I am in favor of powers that confer broad authority on an agent.  This is for two reasons, it requires the principal have a conversation with the agent about what the principal wants (a conversation about these matters is necessary) and there is little likelihood for confusion about what an agent can do.  Also, I tend to think that a short document is best, given the amount of time that health care providers spend with their patients, it is not a great idea to draft a long and complicated document which might complicate matters.

I like simplicity and brevity in the medical power of attorney document.  Here’s a current pet peeve of mine relating to this document.  I am puzzled when I see certain language in a medical power of attorney form that specifically addresses the events in which the agent assumes authority to make decisions on behalf of the principal.  I don’t see this language often, but it usually addresses the effective date of the MPOA, offering two alternatives – effective immediately, or as a “springing power” that allows the agent to act only in the event that “my physician or other qualified medical professional has determined that I am unable to make or express my own decisions, and for long as I am unable to make or express my own decisions.”  This is set up as an alternative in a poorly worded form, but there is in reality only one situation in which a health care provider would consult an agent to make decisions regarding a principal.  The doctrine of informed consent requires a health care provider to get informed consent from the principal, and it is only in the event of the provider’s determination that the principal is unable to give informed consent that an agent would be consulted.  All MPOAs are by their very nature “springing” – meaning that an agent is only empowered to act in the event of principal’s incapacity as it relates to the provision of informed consent for health care services.

I cannot say why this confusing language appears in a couple forms I have seen, but it looks to be a relic from the bygone days of the general (financial) durable powers of attorney.  Since the adoption In Colorado of the Uniform Power of Attorney Act, which became effective in January 2010, all powers of attorney (nonmedical) executed after that date are (1) durable unless they state otherwise; and (2) are “standing” powers, meaning that the effective date is that date of signature by the principal and that the agent’s authority to act is not contingent on some event or determination (a/k/a a springing power) unless specified to the contrary.

What your health care or medical advocate can do for you.

A health care advocate is not only another set of eyes, ears and brain focused on medical decisions, the advocate can provide reassurance and companionship to help ensure an elder gets appropriate care, gets answers to questions and otherwise ensure understanding concerning health care services that are recommended.  If you are thinking about getting a health care advocate, make sure it is someone whose judgment you trust and is someone who is not afraid to ask questions or stand up to authority in unfamiliar or stressful situations.

Here’s a bullet list of some of the tips that Janine provided:

  • Go to The Joint Commission website to perform a quality check on a health care organization (hospital or provider);
  • Use language and specific observations that your doctor can use to help diagnose a problem (use fact-specific observations and stay away from online self-diagnosis);
  • Make sure you have executed HIPAA releases for your agent, health care advocate and any others you want to have access to your medical information;
  • Keep an up-to-date list of all health care providers, their specialties and contact information;
  • Maintain a current health history and medications list so that it doesn’t have to be remembered and written down for each provider; and
  • Write down questions you have so that you don’t forget to ask them when you see the doctor.

Here is a link to a Forbes article about how to become a patient advocate.  Many of these advocates gain their skills and come to appreciate the need for such services as a result of coming to serve in that capacity for an elder parent or other relative.  I think it would not be controversial to make the observation that it is not simple for an elder to manage and effectively navigate through our medical industrial complex on their own.

©Barbara Cashman  2014   www.DenverElderLaw.org

The Contractual Capacity Conundrum, or Part 3

October Dahlia

 

So we’re back on this capacity discussion again.  In the first installment I looked at testamentary capacity, which I characterized as the “basement” as far as capacity levels go.  For better or worse, the contextual notions of how much capacity is enough tend to get more complicated as we move up from that basement of testamentary capacity and look at other types of capacity which require just a bit more um. . . . capacity.  In last week’s post I looked at capacity in the health care context – medical POAs, advance directives and so forth – which are governed by statute.  This week I return to the shifting ground of common law notions of capacity – as reflected in our case law, and focus on items 3 (DPOA capacity) and related actions around the notion of what is the capacity to enter into a contract.

Contract: An agreement between two or more persons which creates an obligation to do or not to do a particular thing. Black’s Law Dictionary, Fifth Ed., 1979.

Capacity: Legal qualification (i.e., legal age), competency, power or fitness.  Ability to understand the nature and effects of one’s acts.  Black’s Law Dictionary, Fifth Ed., 1979.

Conundrum: 1. A riddle, the answer to which involves a pun or play on words. 2. Anything that puzzles.  Webster’s Encyclopedic Unabridged Dictionary (1989).

Ageism sometimes factors into how our notions of capacity are formulated.  When is someone really old and what are the implications of reaching a certain old age?  I have heard ninety-something-year-olds bristle at a proposal from their “kids” that they move from an independent living apartment to assisted living – based on the thinking that assisted living is for “old people.”  Obviously . . . . looking in a mirror doesn’t help many of us come to terms with elderhood and all it may or may not entail!  Okay, one last detour before getting back on track: Scientific American recently posted on the topic “Cocoa Constituents Fend Off Senior Moments” which you can read here.  Yes, the title got this chocoholic’s attention, but I’m afraid it’s about the cocoa flavonols, but that doesn’t mean that I won’t be consuming plenty of chocolate just to be on the safe side! The research in the post concerned a level of flavonols that would be contained in a daily dose of about twenty-five chocolate bars a day . .

You might think the right to enter into a contract is important, but also that it is part of something bigger.  The eminent political commentator Walter Lippman (who coined the term “Cold War”) observed that the first principle of a civilized state is that power is legitimate only when it is under contract.  I came across this very interesting article that the freedom to contract is a human right.  Why is this relevant to the discussion in this blogpost?  We need to be vigilant about creeping ageism and paternalism toward elders while at the same time recognizing a need for protecting vulnerable elders.  What the article in the link discusses is that we must remain watchful regarding any status-based limitations on the freedom to contract (status being things like age or a certain personal condition) rather than capacity based (capacity to do a certain task) or relating to the subject matter of the contract.  In case you might be thinking that we haven’t had such restrictions in our American legal system – think again!  Just one example that comes to mind and it is not a familiar one to most people.  I was a history major in college and wrote a paper about coverture, which basically obliterated the legal rights of women in colonial America once they married.  This is an example of a status classification.

Part of Colorado’s relatively new law on elder abuse (and mandatory reporting of it) focuses on persons at risk due to age and disability – the law 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).

So then, is old age a status?  Yes, of course it is!  In the context of defining contractual rights and in other parts of our legal system (both civil and criminal) status- in the old age context, can often be mingled with disability law.  This is a useful development for many elders with diminishing physical and cognitive capacities, but what are its broader and more problematic implications?

Getting back squarely to the topic of this post – what is contractual capacity?  If we can readily distinguish it from status, that’s a good start, but what does it mean in the estate planning and elder law context?  Last week I presented a CLE to Jim Duve’s solo networking group in Colorado Springs and one if the questions I raised to my audience was “how do attorneys deal with different capacity standards when they are preparing documents for clients and otherwise determine that a client has enough capacity to perform a certain task?”  Unfortunately, I raised many more questions than were answered. . .

Let’s take a look at this statement from the Colorado Court of Appeals in In re Estate of Romero, 126 P.3d 228 at 233 (Colo.App. 2005):

the [Colorado] supreme court has held “that contractual capacity and testamentary capacity are the same.” (Citing Breeden v. Stone, supra, 992 P.2d 1167 at 1170 (citing Hanks v. McNeil Coal Corp., 114 Colo. 578, 168 P.2d 256 (1946)).

This observation was important to the court’s decision in the Romero matter, but it is of little practical assistance toward the development of a cohesive doctrine of what capacity is enough capacity in the contractual context or other contexts relevant to estate planning and elder law representation.

To review, the fundamental question of “how much capacity is enough” in the contractual context must be answered with a response beginning with “it depends . . . !”  So if you’re looking for a treatise on this topic, check out Civil Mental Disability Law, Evidence and Testimony, by John Parry.  Okay, I think that’s enough heavy lifting for this blog post. . . . so I’ll return to the first definition of conundrum and note that forklift operators (like many attorneys) really don’t like puns because they find them unpalletable.  Until the next installment.

©Barbara Cashman  2014   www.DenverElderLaw.org

A Follow-Up to Annuities and Elders – a Complicated Mix

Mount Hope Cemetery, Rochester, New York

Mount Hope Cemetery, Rochester, New York

Here is a timely follow-up to the blog post I wrote a few weeks ago about annuities and elders.  The Colorado Division of Insurance recently amended its regulations applicable to advertising and sales promotion of insurance and annuities, effective July 1, 2014. Regulation 4-1-1 apply to Variable Annuity Contracts and Amended Regulation 4-1-2, to Advertising and Sales Promotion of Life Insurance.  This new regulation also applies to annuity contracts.  You can read the new regulations here.

Section 6 of the new regulations is entitled Disclosure Requirement:

(B) An advertisement shall not omit material information or use words, phrases, statements, references or illustrations if the omission or use has the capacity, tendency or effect of misleading or deceiving purchasers or prospective purchasers as to the nature or extent of any policy benefit payable, loss covered, premium payable, or state or federal tax consequences. The fact that the policy offered is made available to a prospective insured for inspection prior to consummation of the sale, or an offer is made to refund the premium if the purchaser is not satisfied or that the policy or contract includes a “free look” period that satisfies or exceeds regulatory requirements, does not remedy misleading statements.

Section 6 (N) states:

No insurance producer may use terms such as “financial planner,” “investment adviser,” “financial consultant,” or “financial counseling” in such a way as to imply that he or she is generally engaged in an advisory business in which compensation is unrelated to sales unless that actually is the case.

What do these changes mean?  Section 6(N) makes an important distinction concerning annuity sales persons and financial advisors to reflect that a person who sells annuities is typically not a financial adviser who receives compensation which is unrelated to the sales of annuities.  So let’s take a look at the words that can no longer be used in Colorado to sell or advertise annuities and life insurance, due to the potential for misleading consumers?

                 Safe

                Secure

                Certificate of Deposit or CD

If you want to read more about this, check out this article in MarketWatch.

Why is this so relevant for elders?   Many elders are afraid of running out of money toward the end of their lives and do not want to be a financial burden on their family members.  The trickiest part about retirement planning is not knowing whether you will outlive your money.  Another problem with annuities is that they tie money up for a prescribed period of time, when many elders need flexibility in their financial portfolio.   One of the most infamous examples of inappropriate annuity sale for an elder is the story of Alice Bouchard, an 85 year-old who was sold a deferred annuity by an insurance agent which made her money unavailable until she was 101!  Read more about it here.

There are FINRA guidelines and regulatory notices about “suitability” of particular annuities for elders and there are state law statutes and regulations (like the ones above) governing suitability also.  Suitability includes the particular situation of the consumer, their age and needs for liquidity along with things like: what the consumer’s other investments are; the overall financial status; investment objectives and risk tolerance; the consumer’s tax situation; health status; availability of emergency funds and other factors.  These are especially important in annuity sales to elders as over the years there were have been many documented sales that were inappropriate or detrimental to the elder.  Colorado’s regulation 4-1-11 follows the suitability model regulation that was adopted by the National Association of Insurance Commissioners in 2010.

Annuities can be complicated and the contracts often contain many unfamiliar terms.  Colorado’s new regulations help clarify how annuities can be sold to consumers.  It is important to carefully consider a financial course of action, especially when someone is faced with advancing age and health crises.  It is difficult enough to make a sound decision amidst fear, even when it is a fear that another (a stranger perhaps) has brought to you – made you aware of and thus creating an emotional need to resolve that fear.  Yeats aptly observed in “Sailing to Byzantium” that this is no country for old men – this world full of youth and life, and that the agony of aging is inevitable.  But I would submit that Fear – especially of being a burden on others – is another matter.

An important last detail I will consider is the “free look” period. A “free look” period is like a grace period to cancel the contract due to buyer’s remorse. This is for a limited period of time only and after the free look period has passed the contract is fixed and any withdrawals of funds outside the time frame prescribed in the annuity contract will incur sometimes very large penalties.

While the new Colorado regulations will help identify the “no no” words and further regulate techniques and tactics that cannot be used in the sales and marketing of annuities, it is still the best for the consumer to have time to carefully consider what they are getting into before an annuity is purchased.

©Barbara Cashman  2014   www.DenverElderLaw.org

Annuities and Elders – a Complicated Mix

Monet Garden Pond at DBG

Monet Garden Pond at DBG

 

Annuities are sometimes described as an emotional investment vehicle because they guarantee lifetime income for a person.  This can help an elder feel more secure about their money, at least about their monthly income.  This security comes at a cost.  There is lots of information, probably too much information about annuities available on the internet.  This is where it is a good idea to employ one’s “crap detector” (as cyberculture expert Howard Rheingold identifies it in the 2012 book NetSmart) but it is not simple for these types of investments because they are often very complicated instruments.

Annuities tie up someone’s money long-term, and the terms of the annuity – both risks and benefits, and especially how the risk is monetized as a cost of the arrangement, should be looked at  carefully.  The annuity is governed by a contract and generally provide periodic payments over a specified amount of time, provide benefits to a designated beneficiary (if the annuitant, the person on whose life the annuity contract is based, dies prior to receiving payment),and can provide certain tax deferred benefits.

Sometimes people sell annuities that are touted as Medicaid friendly, but Medicaid rules, which vary from state to state, change often.  Bottom line is that some annuity sales persons want to sell an annuity that is based simply on the insurance company or other financial institution taking a larger sum of money and doling it out in small portions over a course of years.    Making an investment that may or may not be appropriate or a good idea for a particular individual is often complicated by the perceived “need” to qualify for immediate benefits.  Annuities are only part of the picture.

 

First off, what is an annuity?

The SEC’s website provides a succinct overview of the three basic types:

  • Fixed annuity. The insurance company promises you a minimum rate of interest and a fixed amount of periodic payments. Fixed annuities are regulated by state insurance commissioners. You can check the Colorado Commission on Insurance website here  about the risks and benefits of fixed annuities and to confirm that your insurance broker is registered to sell insurance in your state.
  • Variable annuity. The insurance company allows you to direct your annuity payments to different investment options, usually mutual funds. Your payout will vary depending on how much you put in, the rate of return on your investments, and expenses. The SEC regulates variable annuities.  FINRA has a succinct explanation of variable annuities here.
  • Indexed annuity. This annuity combines features of securities and insurance products. The insurance company credits you with a return that is based on a stock market index, such as the Standard & Poor’s 500 Index. Indexed annuities are regulated by state insurance commissioners.

 

Okay, I might as well go the full gamut here and mention “life settlements” while I’m on the topic of insurance and elders . . . .  Say what? I first heard about these arrangements under their much more glamorous sounding name of “viaticals” or the acronym “STOLI” (stranger originated life insurance). These settlements became popular during the AIDS epidemic, but the first instance of it being approved comes from the 1911 U.S. Supreme Court decision of Grigsby v. Russell, 222 U.S. 149 (1911), Dr. A. H. Grigsby treated a patient named Mr. Burchard, who wanted a particular surgical operation but could only pay for it with a life insurance policy.  Burchard sold Dr. Grigsby his life insurance policy in return for $100 and for agreeing to pay the remaining premiums, and so the first viatical settlement transaction was created.  After Burchard died, Dr. Grigsby attempted to collect the benefits but the executor of Burchard’s estate successfully challenged the arrangement. The case eventually reached the U.S. Supreme Court where Justice Holmes stated in relevant part that “so far as reasonable safety permits, it is desirable to give to life policies the ordinary characteristics of property. To deny the right to sell except to persons having such an interest is to diminish appreciably the value of the contract in the owner’s hands.”  222 U.S. at 155-56. Okay, once again I’ve gone off-track in this post about annuities. . . .!

I am writing this because in my work people contact me and in the scope of gathering information I often encounter difficulties and misunderstanding on the part of annuitants, beneficiaries and other survivors of annuity contracts.  The remorse and misunderstanding factor on these types of investment contracts can be high – so take a calm and measured look at these before you or someone you care about signs a contract!

Wondering about where to get more information about these annuities? Here a link to the FINRA warning about these investments – FINRA is short for Financial Industry Regulatory Authority (for those of us who took a securities law class in the previous century, this agency was formerly known as NASD – the National Association of Securities Dealers). Where the Securities and Exchange Commission (SEC) is a government regulatory agency, FINRA is the largest self-regulatory organization in the American securities industry.

To recap, annuities seem to be appealing to many older folks (boomers included) because of their emotional appeal of guaranteed income for life.  This article from Business Week is nearly ten years old, but is still relevant.   Best to explore and discover the best means for what to do with your limited funds in retirement and make sure that you have considered all the options before alighting on the one that is right for you – especially if it is an investment that cannot be undone.

 ©Barbara Cashman  2014   www.DenverElderLaw.org

 

Will I Inherit My Parent’s Debts?

 

Denver Elder Law

Summer at Hudson Gardens

Here’s a picture from a bird walk I did with a group at Hudson Gardens last weekend.  No there aren’t any birds in this one, so don’t look for the red-winged blackbird that was nearby.  On that beautiful summer morning I saw a number of birds: a blue heron taking flight from the bank of the South Platte; a cowbird perched at the top of a large cottonwood; a mud swallow in her nest: a brilliantly plumed yellow warbler (yes, warbling while perched in a tree); a cute little chickadee-dee-dee; and a couple hawks flying above us – a red-tailed and a Swainson’s hawk.  Now, down to business. . .

Sometime back I featured a blog post which was written by my friend and colleague Ayo Labode about filial responsibility law (the duty of a child to care for the parent) and that has been a popular post.  Colorado doesn’t have those archaic laws and I don’t think there’s much concern that our legislature is likely to adopt such legislation.  A more common question that is likely to elicit concern and fear, along with a variety of information and misinformation – concerns whether a parent’s debt can be inherited.

This was a much bigger concern a few years back when we were in the midst of economic downturn and grim employment prospects, and many Americans found themselves underwater in their mortgages and out of jobs.  During that time, many of us had to consider very carefully whether it was a good idea to open an estate to collect the assets (even if there were few of them).

A much broader concern however, concerns debts in a decedent’s estate.  Sometimes a parent or other loved one dies with large debts.  This can present many problems for surviving family members about what to do and how to proceed.  Here is an interesting article about this.  An interesting topic – alas, for another post – concerns what is considered or becomes probate property administered by an estate administration proceeding (whether there is a will or no will) and what is nonprobate property that will not typically be subject to probate estate administration.  But remember that it is a good idea to remember to make beneficiary designations for nonprobate assets, these can generally help maintain flexibility as I noted in my Inherited IRAs post a couple weeks ago, reprinted here in this CBA/CLE Legal Connection blog post.

Probably one of the most feared issues under this heading is “Medicaid estate recovery.”  This fearsome prospect does not appear to be widely used in Colorado at this time (based on anecdotal evidence I have collected).  In this context, a house (a typical “probate” asset) is the only substantial asset a person may keep and still qualify for Medicaid. So the state may place an estate recovery lien on a parent’s home to recover those Medicaid payments.  As Ayo explained in the post referred to above, Medicaid will not come after the children of a Medicaid institutionalized parent.

Once an estate is opened, it is open for all comers, so to speak.  This means the bill collectors of course.  Under our probate code, a creditor is entitled to open an estate of a deceased person if no other person has opened one after forty-five days following the debtor’s death.  Our probate code provides a list of claim and creditor priorities, so there is an order to who goes to the front of the line (like medical expenses of a last illness) and who gets relegated to the back (usually unsecured creditors like credit card companies).  Claims must generally be filed within one year of the death, but when an estate is opened for a decedent, it is typical to publish a “notce to creditors” which provides notice to the world and shortens the time period for claims to be filed.

This is why it is a good idea to consider carefully whether to open an estate – to avoid administering an estate that has no real assets or will benefit only creditors. Debts generally come off the top of the estate, so to speak – the beneficiaries (under a will) or distributees (where there is no will) get their share after creditors’ claims have been paid.

Let’s take a quick look at two basic kinds of debts and resulting claims.

Secured debt:

“Secured” means the debt has physical collateral that guarantees the balance. These are debts like mortgages (secured by the home itself) and car loans (typically secured by the car).

 Unsecured debt:

This is debt that is not secured by any collateral but simply is a promise to pay under an agreement.

This is already getting to be a rather long and complicated post, so let me conclude with WHAT TO AVOID.

The easiest way to inherit your parent’s debt:

  • Cosigning on an account. A cosigner will assume full responsibility of shared loans and credit cards.
  • Joint account holders whose income and credit history were used to acquire a loan or credit card are typically solely responsible for paying joint debts.
  • Signing as guarantor instead of as agent under a power of attorney.

To reiterate, sometimes the decision of whether to open estate must be made very carefully, in consideration of what is the asset/debt ratio of all property and whether an opening of probate is for some other reasons a good idea or required.   For example, under Colorado law (for the year 2014) a collection by affidavit can be used by a successor to collect assets not exceeding $64,000.00.  The use of such an affidavit is only appropriate where there is no estate opened on behalf of the decedent.  I will write more on this topic in the future, so stay tuned!

 ©Barbara Cashman  2014   www.DenverElderLaw.org

Jefferson County Senior Law Day is Saturday, June 7, 2014.

Wyoming Cowgirls circa 1943

Wyoming Cowgirls circa 1943

The 4th  Annual Jefferson County Senior Law Day will be held at Faith Bible Chapel, located at 63rd and Ward Road, Arvada, Colorado, beginning in the Worship Center at 8:00 a.m.  The opening session is from 8:00 a.m. to 8:45 a.m. and will feature First Judicial District Attorney Peter Weir, Channel 9 investigative reporter Chris Vanderveen, and Jefferson County Commissioner Faye Griffin.

This public service announcement does have a bit of self-promotion as I am presenting on financial powers of attorney and conservatorships . . . !

Session 1 workshops will be held from 9:00 to 9:45, Session 2 workshops will be held from 10:00 to 10:45, and Session 3 workshops will be held from 11:00 to 11:45.  Session four has three different presentations from 1:00 – 1:45.

Here’s a sneak peek at the presentations for the first session:

 

 Probate: Perspective from the Bench The Honorable Chief Judge Stephen M. Munsinger

Jefferson County District Court

 

 Estate Planning Basics: Wills and Trusts Lisa Eastin, Esq.

 

 

 Maintaining Your Independence at Home Michele M. Lawonn, Esq.

 

 

 Prevention and Mandatory Reporting of Elder Abuse Candace K. Werth, Esq.

Jennifer Clark

Joan Stein

District Attorney’s Office

Elder Abuse Unit

 

 When Someone Dies: Medical and Legal Issues Carl A. Blesch, M.M.S., P.A.,

District Attorney’s Office

 

And the second session features:

 

 Planning Ahead for Serious Illness and Beyond: Conversations, Decisions, and Advanced Directives Susan Fox, Esq. and

Jennifer Ballentine, MA

 

 

 Role of Public Administrator and Probate Administration Virginia Frazer-Abel, Esq.

Jefferson County Public Administrator

 

 A Consumer’s Guide to Choosing Nursing Homes and Assisted Living Facilities Mary Catherine Rabbitt, Esq.

Ayo Labode, Esq.

 

 

 Fighting Back Against Identity Theft Cary S. Johnson

Director: Crime Prevention

District Attorney’s Office

 

 

 Later Life Relationships Christine J. Law, Esq.

Julia Griffith McVey, Esq

 

And the third session:

 

 Medicare Update William B. Kistler, EMBA

 

 Financial Power-of-Attorney & Conservatorship Barbara Cashman, Esq.

 

 

 Prevention of Fraud and Scams Jessica Beren

Detective

Westminster Police Department

 

 Social Security Dawn R. Hewitt, Esq.

 

Lunch is from 12:00 to 12:45 in the gymnasium on the lower level.  Finally, there are a few sessions after lunch:

 

 Lifelong Learning and the Aging Brain Zane Robertson

 

 End of Life Planning Catherine A. Silburn, Esq.

 

 Medicaid Update Claire E. Dineen, Esq.

Kathleen A. Negri, Esq

 

But wait . . . . there’s more!  There will be two sessions of “Ask-an-Attorney” – the first from 9:00 -10:30 and the second from 10:30 – 12:00 where around eight attorneys will be available for short consultations.  Ask –an-Elder Law Attorney is a regular feature at the Jefferson County courthouse in Golden.  Several colleagues and I take turns with making ourselves available for these sessions in Golden.  Friendly and helpful court staff are also available to answer questions about guardianships and conservatorships as an extension of the self-help center in the courthouse for probate matters.  Please attend this informative event if you can!

 

 

The Cultural, Social and Socioeconomic Aspects of Elder Law

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Harry Moody’s page about medical model for elders

 

In case you’re wondering about the origin of this post, it is the title of a continuing legal education panel I participated in last week which was sponsored by the Boulder County Bar Association.  Other participants were elder law attorneys of diverse backgrounds including Ayo Labode, Jodi Martin and Lorenzo Trujillo and the panel was moderated by Martha Ridgway.  A focus of our conversation was about the challenges in meeting our clients where they are now, and recognizing from where they have come.  Listening carefully is an important skill in this regard.  Each of us was asked to contribute a useful document for the materials.  I chose an old favorite of mine from the University of New Mexico – the Values History: A form to assist you in making health care choices in accordance with your values.  This important document is available online in pdf format for free download here.  There are other resources from the ABA that are also helpful to start the difficult conversation about end of life choices.

For today’s post, I will focus on the health care questions in the context of the cultural and socioeconomic factors that affect each of us – whether it is from our family of origin, our family of creation or our family of choice.  I’ll start with the history of informed consent.   Informed consent has simple and more nuanced definitions that are situation dependent.  I will quote from a good overview I found from the University of Washington School of Medicine, written by bioethicist Jessica de Bord:

What are the elements of full informed consent?

The most important goal of informed consent is that the patient has an opportunity to be an informed participant in her health care decisions. It is generally accepted that informed consent includes a discussion of the following elements:

  • The nature of the decision/procedure
  • Reasonable alternatives to the proposed intervention
  • The relevant risks, benefits, and uncertainties related to each alternative
  • Assessment of patient understanding
  • The acceptance of the intervention by the patient

I have previously blogged about the tragic history of “informed consent” in the context of World War II, the Nazi doctors and the Nuremberg trials.  In this country we have the recent and shameful legacy of the Tuskegee Study, which is a legacy of the disenfranchised that informs many African-Americans’ experience of our health care system and the allocation of its resources.  I thank my friend and colleague Ayo Labode for including reference to this study in her comments at the CLE.

The Tuskegee Study took place in Macon County, Alabama, where 600 poor and illiterate African-American men were enrolled in the study.  The men were offered many things for their participation, including medical exams, meals on exam days and burial stipends.  The study was commissioned by the U.S. Public Health Service and it was called the “Tuskegee Study of Untreated Syphilis in the Negro Male.”  What the participants (and their families) didn’t know is that the study, begun in 1932 and concluded in 1972, was non-therapeutic.  This nontherapeutic study continued even after the introduction of penicillin as treatment for syphilis by 1947, but none of the participants were offered or given the treatment.  In 1972, an Associated Press journalist broke the story of the 40 year long nontherapeutic study.  In 1997, President Clinton gave an apology for the study.  Here is an excerpt from the President’s remarks that is particularly relevant to the topic of this post:

The legacy of the study at Tuskegee has reached far and deep, in ways that hurt our progress and divide our nation.  We cannot be one America when a whole segment of our nation has no trust in America.  An apology is the first step, and we take it with a commitment to rebuild that broken trust. We can begin by making sure there is never again another episode like this one.  We need to do more to ensure that medical research practices are sound and ethical, and that researchers work more closely with communities.

So in order for each of us, as people and as elder law attorneys working in a field with so much psycho-social and emotional content, to be able to respect each others’ differences – we first must recognize them.  Each of us, as adults, needs to confront the difficult questions of who we will choose to be our surrogate decision-maker (agent under a medical POA) in the event we are unable to decide, and we need to talk about what we want in end of life care.  If we are to honor our self-determination and autonomy in our dealings with the medical-industrial complex, we must take the necessary steps now.   This will be my final installment on the May is Elder Law Month theme for this year.

©Barbara Cashman 2014     www.DenverElderLaw.org

In Honor of Elder Law Month: The Law of Aging and the Study of Aging

 

Glass Dome of Ralph Carr Judicial Building

Glass Dome of Ralph Carr Judicial Building

May is national elder law month! As a member of The National Academy of Elder Law Attorneys, I proudly post a blog announcing this theme.  The law of aging? Do I mean physical laws, man-made or what – exactly . . .  Some of those, to be certain.  This another installment on my theme of looking at some of the effects of having so many more people around who are living longer than ever. I’ll start with what I know.  Elder law is a field of practice that is focused on the legal problems of the elderly.  It is not a practice area like securities regulation or DUI defense, where a practice is focused on a particular set of laws (including statutory and case law, along with regulations). No – elder law is a practice area concerned with the legal problems of people “over a certain age.”  Many persons who would be included in the group of “elders” would not consider themselves as such because they don’t think they are “old.”  As we all know, what is considered old is a sliding scale. For purposes of the federal Age Discrimination in Employment Act, the protected class of persons is people age 40 or older.  According to the new Colorado law for mandatory reporting of elder abuse, an elder is a person aged 70 or older.  So you can see that the legal system doesn’t have a clearly defined number when it comes to defining “elder.”

Gerontology is the study of aging and older adults. I am borrowing from the useful definition I found at the Institute of Gerontology at the University of Georgia’s College of Public Health.  They offer a further definition, one that is being updated as we go along:

The science of gerontology has evolved as longevity has improved. Researchers in this field are diverse and are trained in areas such as physiology, social science, psychology, public health, and policy.

A more complete definition of gerontology includes all of the following:

  • Scientific studies of processes associated with the bodily changes from middle age through later life
  • Multidisciplinary investigation of societal changes resulting from an aging population and ranging from the humanities (e.g., history, philosophy, literature) to economics; and
  • Applications of this knowledge to policies and programs.

Gerontology is a multi-disciplinary approach to the study of aging using research methods and applied science.  They didn’t specifically include law in their definition, but I am confident that the development of elder law is part of the evolution of the field of gerontology just as it helps inform the multidisciplinary investigation of the burgeoning number of elders in this country.  I haven’t looked into the career opportunities in gerontology, but I have been interviewed by a couple M.A. students from the University of Northern Colorado.  At first glance, I would imagine that there are many opportunities in this burgeoning field but that because it involves work with elders, it is not highly remunerative.  I did find that UCD offers an adult gerontology nurse practitioner certification.

The doctors serving the population of elders are diverse in their specialties, but the area focusing on the medical and health care needs of elders is known as geriatrics.  It is broad in scope and by its nature (at least in theory) looks at the whole person, with a view to maintain functional independence and self-determination.  Geriatricians are board certified in internal medicine or family medicine and have obtained a certificate in geriatric medicine.  At many geriatric doctors’ offices you can find a team that supports the doctor which might include: nurses, social workers, nutritionists, physical therapists, occupational therapists and other who have special training or experience in treating or working with elders (older adults).  As the baby boomers age, and many of the cohort include geriatric doctors and their staff, there may be a shortage of people equipped to treat this growing number of people.

Some of challenges of an aging population include the medical treatment of diseases associated with aging, and many of these have legal consequences.  Some of the diseases and conditions are Parkinson’s disease, different forms of dementia, diabetes, neurodegenerative disorders, heart disease, arthritis, osteoporosis and hypertension, to name a few.  Chronic diseases that so often in the past led to an early demise are now being managed more successfully.  Likewise, we are facing new medical challenges as a result of aging and its complications.

I recently met with someone who runs a local home care service.  These types of services can be key to allowing elders to age in place in their own homes by making it possible to stay put with the assistance provided by supportive services of providers who come into the home.  Many times people can stay at home and avoid altogether any period of needing to move to a residential facility that offers such services or institutionalization.  One of the topics we discussed was Colorado’s mandatory reporting law, which is now in effect and requires – beginning July 1, 2014 – the mandatory reporting of suspected elder abuse.  While we both strongly agreed that it was about time that Colorado had such protections in place, I mentioned to her that putting elders (people 70 and above) in a class of people does have certain implications for ageism and civil rights.  Don’t get me wrong – I think these protections and wider enforcement of the law are overdue, I just recognize that this area of the law – of determining whether an elder has been abused or exploited by another – contains a fairly large gray area.  The treatment of elders with dignity and respect in a way consistent with their civil rights and protecting them from and allowing fuller redress of exploitation and wrongdoing of others may be a bit of a challenge in many cases, where protection might really mean paternalism.  I will write more on this topic.  As far as I’m concerned, it is a new frontier of civil rights.

 ©Barbara Cashman  2014   www.DenverElderLaw.org