Elder Law Ethics or “Why Am I Left Sitting in the Waiting Room?”

View from the roof of the Denver Art Museum

I am openly borrowing from the title of an American Bar Association pamphlet “Why Am I Left in the Waiting Room?:  Understanding the Four C’s of Elder Law Ethics.”  You can read the pamphlet here.    Estate planning is a law practice area that has historically had joint representation as a feature.  This is typical where a married couple, partners in a civil union, or committed partners, do their estate planning together.  Most lawyers have a written fee agreement for this and for a husband and wife the agreement often contains a joint representation waiver which gives both clients the opportunity to consent to one attorney representing them (this typically makes the most sense from a planning and financial perspective) after the attorney advises them of the unique nature of joint representation.

Elder law practice often encompasses the more traditional estate planning services but there can be nuances to the attorney-client relationship when an adult child brings an elder to an attorney’s office.  It is not uncommon for an adult child to find and “vet” an attorney on behalf of the parent.  Sometimes the adult child may wish to pay for the legal services.  Often the adult child has been very involved in the parent’s day-to-day life, but the nature of the attorney-client relationship has boundaries.  The pamphlet referenced above goes over the “four C’s” which an informed client ought to consider, and with which the attorney is assumed to be familiar.  The attorney, after all, is the license holder who is bound to uphold the Colorado Rules of Professional Conduct.

So – what are the “four C’s?

  1. Client Identification: attorneys must communicate and make clear to the client(s) who is the client, and oftentimes – who is not the client.  Even if the elder is not footing the bill for the consultation, the elder is the attorney’s client.
  2. Conflicts of Interest: lawyers have an ethical duty to avoid conflicts of interest – these can crop up whenever an attorney represents more than one person.  When an attorney represents several people with joint or mutual interests, the lawyer is bound to identify potential conflicts of interest and determine whether joint representation is appropriate or allowed.  This can be particularly problematic in an elder law context where one attorney talks with an elder parent and an adult child and it is not clear who the client is – this is why #1  above is #1! Identifying the client means identifying the person to whom the lawyer owes all applicable duties.
  3. Confidentiality: A hallmark of the attorney-client relationship is communication and lawyers must keep confidential the communication between clients and lawyers confidential.  By way of example, it means that if I represent an elder parent and draft a durable power of attorney for them and they want me to be able to talk to their adult child agent about how to use the POA if the need for using it arises, I need to get specific authorization from them to talk with the adult child agent – because the elder parent is my client and I owe a duty of confidentiality to my client.
  4. Capacity: the ABA pamphlet refers to this as “competency” but I find the term “capacity” more appropriate.  Sometimes an adult child will inquire about getting a will drawn up for their parent who is in failing health. Some folks think that a lawyer can simply take instructions from another person about what the elder wants in their will and present and then present such a document for signature by the elder.  This is not appropriate on many levels.  Lawyers are duty bound to get informed consent from their client – on whose behalf the document is prepared –  for a particular course of action.  This means educating the client about the range of alternatives to choose from and then allowing the client to make their own choice among the alternatives.   This can be challenging in the elder law field – particularly when a client may be hard of hearing, vision impaired, or experiencing temporary or ongoing cognitive decline.  The lawyer must determine (as with any type of client) whether a client has the capacity to enter into an attorney-client relationship.

The bottom line for elder law attorneys is that we don’t want our clients’ wishes and choices made to be subject to scrutiny and undoing at a later date because the lines of 1, 2, 3 and 4 above were blurred!  If you bring your mom or dad or Aunt Ethel into my office, rest assured that I will talk to you as well – but I will have you spend some time outside in my waiting area.  Don’t worry, there are good magazines to read.

©Barbara Cashman     www.DenverElderLaw.org

The Music of Family Relationships

It’s springtime somewhere, but definitely not in Denver this morning where the snow from Monday’s storm has melted only a little.  I got a blizzard alert on my iPhone at about 7:30 this morning!  It’s coming down right now.  We do need the moisture and I, for one, am not anxious to get started on the lawn mowing anytime soon. . . .  So here’s a picture of spring that I took last week in Ireland.

For all of you skeptics (or people who have been to Ireland before) the weather was beautiful and I took many pictures with visible blue sky! I took this picture on the grounds of Glenstal Abbey, where I was lucky enough to spend several days in a warm and welcoming Benedictine community.  I took this picture after walking back from a visit to Mass Rock.  There Irish soprano Noirin Ni Riain told our group about the history of the Mass Rock. She alo sang to us and finished by leading us in song.  She has an amazing voice and her music not only speaks to the soul, but moves it.  I purchased three of her CD’s when I was there and they are all available from Sounds True in Boulder.  Her songs are sung in Irish, but I find that the most moving music is not in my mother tongue of English.  I’m also thinking of Gorecki’s Third Symphony which you can listen to part of it (with beautiful visual accompaniment) here .  My favorite is the original million-seller with soprano Dawn Upshaw.

Music and spring and travel. . . .  That leads me also to an experience I had some years ago when I was visiting a local nursing home in my capacity as JFS para-chaplain.  I was there to lead a service and because I was lucky enough to be accompanied by a guitarist, I sang an old Yiddish song called Oif’n Prippitchik.  About midway into the song something very interesting happened.  One of the residents who attended was a woman with very advanced dementia who, it was reported to me later, had not spoken in over a year.  She started first to hum and then sing along with the song.  She spoke about her grandmother.  The song had transported her right back to a happy memory of childhood, when her grandmother had sung that song to her.  By the means of music, hearing that melody – she was moved in a sort of time travel.  I was most certainly moved witnessing that event.  Another story of music as a means of transport for the spirit comes to mind, it is from Megory Anderson’s book Sacred Dying.

So this post is about connections I suppose, and the beauty of writing blog posts is that I can incorporate things like . . . . a bumper sticker that I saw this morning on my way to work.  It read “love lasts longer than life.”  I nodded in agreement.  This post is also about new varieties of living arrangements in this country, which hearken back to some very old traditional arrangements.  I thought about the post after reading an article about it in the April 2013 AARP bulletin.

The title of the April Bulletin’s article is “Saving Money by Living Together,” and it is about money saving, but I suspect that the approximately 51 million Americans who live in a house with at least two generations in a single home, and many of these most likely have three generations, are enjoying more than just money savings from the arrangement.  The money savings factor in substantially for caring for an elder parent, and the arrangement also give an adult child or children the opportunity to give back to the aging parent some of the care they received from childhood.  This can be a beautiful way of modeling productive multigenerational relationships for young children.   I think it also can foster a productive stage of elderhood for many grandparents, a topic I’ve blogged about previously.

One of the biggest challenges that we face as a society is how to take care of the burgeoning number of elders, some of whom have meager savings and many whose savings have simply run out over the course of a long number of years of paying for health care not covered by Medicare and costs of living in retirement.  I sometimes hear the offhand lament “we don’t take care of our elders in this country,” to which I often quickly respond with the numbers of elders and the fact that the vast majority of those elders needing care receive some or all of their care from unpaid family members.  One of the side effects of longevity is reworking family relationships to support elders in their later years.  As an estate planning and elder law attorney, there are a number of legal arrangements that an individual and family can put in place to manage the legal aspects of these often complicated financial, medical and emotional considerations.  In a multigenerational housing arrangement, it is good to start with a plan.  I liked this article’s list of tips for making such an arrangement work which include:  discuss expectations and responsibilities like financial and privacy issues; talk about parental and filial (adult child to parent) responsibilities; check zoning restrictions about renovations for attached dwellings; and share the responsibilities.  I would also add that it might be wise to have a regular place for the family members to meet all together to ensure things are working and so any conflict can be managed productively and not allowed to proliferate.   Some of my clients have made such arrangements and they are usually mutually beneficial.  It is interesting to note the change in structure that economic and age-related considerations can have for families – for so many of us, it brings our dear ones closer to us.

©Barbara Cashman     www.DenverElderLaw.org

 

 

 

Civil Unions Likely to be Recognized Soon

 

Civil Unions are most likely coming to Colorado!  You can watch a video by Michael Valdez, Director of Legislative Relations at the Colorado Bar Association about the Judiciary Committee approval of SB 13-11 here .  The Colorado Bar Association supports the bill.  The bill has passed the Senate Committee and is very likely to become law.  Read more here.    This is an important development for civil rights and has important ramifications for estate planning and elder law for same sex couples.  The big picture of rights of same –sex couples in the United States is in a major state of flux right now.  Voters approved gay marriage ballot measures in the 2012 election in Maryland, Washington and Maine.   The U.S. Supreme Court will be examining the constitutionality of the (federal) Defense of Marriage Act (DOMA)as a result of the rulings by U.S. Courts of Appeal  (the First Circuit in Boston and the Second Circuit in New York)  that portions of the law are unconstitutional.  What will be interesting from the historical perspective is that the “state rights” reliance, used by southern states to continue segregation in the 1950’s and 1960’s will likely be the undoing of the DOMA.  Such a ruling by the Supreme Court would result in a major change in federal benefits and tax treatment of same sex marriages, but will still leave a checkerboard of state laws regarding whether a same-sex couple can be married.  Right now there are a variety of laws among the states that address marriage, civil unions and domestic partnerships for same sex couples.  Read an article by a Vermont law school professor about that here.

You can read “A Bill for an Act Concerning Authorization of Civil Unions”  (SB 13-11) here.    The bill specifically states that “the rights, benefits, protections, duties, obligations, responsibilities and other incidents under law that are granted or imposed under the law to spouses apply in like manner to parties to a civil union” and includes many provisions – of particular interest for me are the probate laws regarding decedent’s  estates (intestate succession, wills and trusts) as well as “living” probate proceedings such as guardianship and conservatorship matters.  And yes, those who are united in civil union will be subject to the same processes such as dissolution, legal separation and declaration of invalidity as pertain to marriage.

This will obviously be a major improvement for committed same sex couples over the current Colorado law, which includes the Designated Beneficiaries Act.  You can read my article about it here.    Keep in mind that the Designated Beneficiaries Act and a Designated Beneficiaries Agreement is available to two persons who are unmarried, a very broad group of individuals.  I will post updates in the future on these important state and federal developments.

Will That Representation be Separate or Joint?

 

Attorneys represent individuals, couples, business, families, corporations – among other clients.  One of the types of representation that is common among elder law attorneys is joint representation for a couple (husband and wife or unmarried couple), but many times an elder client might be brought in by an adult child or a caregiver.  This can be because the elder wants a companion, doesn’t drive anymore or has physical mobility challenges, or it could be due to reasons having to do with cognitive functioning.  The purpose of this blogpost is to give a brief overview of a couple different types of representation from an elder law perspective.

Representation of an Individual

The example I use here will be one of an elder parent who relies on an adult child or children for assistance with some activities.  I use this example because it is a relatively common scenario in elder law that many people may not be aware of.  Sometimes there may be a question about who the lawyer will represent and for what purpose.  The American Bar Association has a helpful flyer here that explains why it is standard practice for elder law attorneys to interview an elder separately.   This may be difficult for an adult child who is involved in so many aspects of a parent’s life, but it is consistent with the attorney’s requirements of acting within the Colorado Rules of Professional Conduct, the ethics rules to which all licensed Colorado attorneys must adhere.

Sometimes the elder who executes a durable power of attorney (POA) may wish to have their agent under the POA– either a general (financial) or a health care POA educated about the duties they will be performing in the event the agent must act on behalf of the elder principal.  a consult with both the principal and agent about the “job description” – fiduciary responsibilities, how the agent will be expected to perform in the financial POA context, as well as the stated and understood desires of the principal as to medical treatment and preferences for an agent acting under a health care POA.  This inclusion of the agent under a POA at a meeting with the elder principal does not mean that the attorney is “representing” the agent as well.  It is the attorney’s responsibility to make clear so that both principal and agent understand the nature of the representation.  Estate planning and many aspects of elder law are relatively nonadversarial in nature, and it is often the stated wish of the principal, consistent with their own interests, to have the agent “on board” with the expectations of how the principal expects the agent to act.  Indeed, educating an agent about their fiduciary responsibilities can be a powerful tool that can make the use of the POA easier and also prevent inadvertent mismanagement or neglect of an agent’s duties.   This is understandably in the principal’s interest, and is often an available option.  In the medical POA context, an elder principal’s clarification of their stated wishes, along with discussion among the adult child or children who will act as agent(s) in the event that a medical professional determines a principal is unable to give informed consent to treatment.

It is the responsibility of the attorney engaged by the elder to explain in these circumstances the nature of the meeting among the principal and the agent(s) so that it is clear to all those in attendance what the nature of their relationship with the attorney entails.

Joint Representation

In some circumstances, it is desired and may be appropriate for the attorney to represent more than one party.  Typically this is joint representation of a couple, but it may also be “multigenerational” representation – which is much less common and generally narrow in scope.

The majority of married couples and committed partners engage in joint estate planning.  The attorney typically explains the potential for conflict in such a representation and obtains written consent for such representation after explain conflicts of interest that may arise in such representation and the circumstances under which an attorney may continue to represent the parties and those in which she may not.

Joint representation may be problematic for some couples, particularly in a second (or later) marriage or blended family scenario.  Sometimes asking the questions about how the representation will proceed may point to underlying areas of conflict.  Here’s a link to a helpful Forbes article by Deborah Jacobs, “Estate Planning for Couples: Should It Be a Solo or a Duet?”  (This is a guest post by Paul Hood and Emily Bouchard, co-authors of Estate Planning for the Blended Family.)

I’ll write more about this topic again.  It is an important one that shows up in different elder law contexts.

End of Year Lists: Don’t Forget the Digital Assets!

Okay, it’s December – and it might even snow soon here in Denver . . .

End of year planning means list-making, right? So here’s a follow up to a post I published on April 30th about passing on in a wired world.

        1. Make a list of all your digital “stuff”

        2. Tell someone you trust where to find it

        3. Don’t forget to update it regularly (new information and changes to existing)

These are the top three things I suggest doing – even if  my use of the term “stuff” is vague.  Why would I use such a vague term here?  Well, there are more than a few types of digital “property,” some of which may look like property but not be property (e.g., a license).   This area is relatively new, evolving and fraught with uncertainty.  This is why I think the better policy is to include all property on a list and have it “sorted out” later on if need be.

Relating to (2), you could consider someone taking care of your online identity/footprint/stuff as your “digital executor.”  I’m thinking  historically, back to the many writers who entrusted their unfinished works or compilations to their named “literary executors.”  In one case with which I’m familiar, a friend of a decedent was previously instructed to “wipe” the hard drive and all storage devices on the decedent’s computer and smartphone.  Not all of us want to live forever digitally or leave a trail for other’s to track.  It’s best to decide these things in advance.

You will want to regularly update the list, which could include ownership interests (like a domain name or a bank account for example), licenses or uses (subject to terms of use contracts), access information for accounts, communication and devices (including computers, external storage, cloud and smartphone).

Only a handful of states have enacted legislation relating to digital assets of a decedent and Colorado has not yet done so.  What is the state of the law applicable to these matters?  Evolving!  There is federal legislation regarding the internet, contract law pertaining to terms of use which govern access to most online accounts, and then there is the unsettled area relating to the application of agency law and decedent’s estates (powers of agents under durable powers of attorney and a personal representative of an estate).   Suffice it to say there are some very interesting legal scenarios about the nexus of these three sources of law . . .   Many estate planning attorneys now regularly ask their clients about digital assets, and some (myself included) have drafted powers of attorney regarding digital access and assets.

There are many nuanced issues relating to digital versions of the familiar world (at least to those of us like me, a “digital immigrant”)  – a good example is the book.  Let’s say Decedent leaves his library of Mark Twain works (published in 1903) to his son, and the impressive digital collection of the same complete works to his daughter.  Whoa! The first bequest is simple and straightforward, but in the bequest to daughter of the digitized versions of the works (which may include versions of audio, video, CD, eBook, etc.) each of the assets would need to be considered according to federal copyright law, any terms of use or terms of service the decedent agreed to when the purchase was made, and whether any kind of intellectual property protection may additionally apply (like under the federal Digital Millenium Copyright Act of 1988).

Okay, what about your Facebook account – maybe you’ve heard there are memorial pages available . . . .  This access depends on many factors as well.  For example, a coroner investigating a suspected suicide may not be able to access the deceased person’s Facebook account to help with the investigation.  Read Jim Lamm’s Oct. 11, 2012 blog post that discusses this very issue in the context of the Stored Wire and Communications Act (part of the Electronic Communications Privacy Act of 1986).

This area of law, like the rest of life – is uncertain.  If you want to ensure that everything is accounted for (or erased) – be sure to provide some instructions and make that list of your digital assets.

©Barbara Cashman     www.DenverElderLaw.org

This Week is National Estate Planning Awareness Week

Estate planning “awareness” week – really?!   I know at least one person who would respond “hmm. . . .  sounds like about as much fun as colonoscopy awareness week, but it takes longer!”  Okay, the fact is that many of us don’t think about planning because, well – we’re procrastinators.  I liked this Scientific American Mind article from 2008 about kicking the procrastination habit.   The fact remains that the majority of people don’t make any plans for their “estate” or many preparations for their demise.  Some folks would observe “estate? I don’t even have an estate!”  I can assure you that even if you don’t need to be concerned about the drastic change in the estate tax, there are sound reasons to at least consider estate planning.  I find that many people come in to see me for their own planning after they have lost a parent, sibling or friend whose affairs were not “in order.”  A little bit of planning can go a long way here.  I remind people at the close of an estate planning engagement that it is important for survivors to be able to locate important information and location of items (I give my clients a letter of instruction to accomplish this goal, but they are the ones responsible for completing it at home.  It allows survivors to focus on grieving and not scrambling to locate important documents that they may or may not be aware of, and these include digital assets. . . .

So what are the basics for estate planning?  Well, the kind folks at the National Association of Estate Planning Councils (the Women’s Estate Planning Council, to which I belong, is a member) have a nice overview available here.

Sometimes I also hear, I need a will because I don’t want the state to get my stuff . . . . The state rarely “inherits” a person’s estate (this is called escheat), but if you don’t have a will, the law of intestacy, inheritance without a will – is how the distribution of your (probate) assets will be determined.  It is up to you to plan your estate, otherwise Colorado law will make it for you.   So, do you need a will?  If you know who will be able and willing to take care of your affairs after you pass away, how the law of intestacy will divide up your probate assets and you have all of your beneficiary designations for your nonprobate (as distinguished from probate) assets going to the right people or institutions, well maybe you don’t need a will . . .!

Most of us (me included) aren’t prepared to make that conclusion.  For example, we want to be able to pick the best person (who we have previously consulted) as our personal representative, the individual responsible for wrapping up the affairs of our estate.  If we have minor children, kids in college, or a disabled adult child, we will probably want to have a testamentary trust, otherwise there can be the “lottery effect” to contend with – most of us don’t want that!

This is a reminder that estate planning is about much more than money and assets! It is also about ensuring that your family members are taken care of in ways that benefit them and don’t cause undue conflict.  This may crop up around a home, personal property or business interests.   Here’s another NAEPC document about this.   If you are a single parent, part of a blended family, a small business owner or solo attorney like me – you especially need to look into estate planning so that there can be arrangements made in the event of your disability or incapacity and a smooth transition in the event of . . . . the inevitable.  Yep, I’ve got a will and powers of attorney that cover my law practice so that it (and my clients) won’t be left in the lurch if/when something happens to me.   But don’t get me started about many of my “shoeless cobbler” colleagues. . .  There’s lots of great information available to become more “aware,”  – isn’t that the first step after all?

 

What is Elder Law and How is it Different From Estate Planning Law?

 

Elder law is a practice area that started out as an outgrowth of the more traditional trusts and estates field, but is essentially a general practice area that is concerned with the needs and legal challenges of older people (elders) as the American lifespan continues to increase.  With medical advances and relative affluence, people are living longer, and periods of incapacity are more common, along with a greater incidence of cognitive and physical disability.

Other factors that impact the growth of elder law are the outsourcing of some of the care that families have traditionally provided elders, which has resulted in no small part from the number of women in the workforce, along with family members living apart from each other geographically.  There have never been so many octogenarians on the face of the planet, and  this has important implications for attorneys practicing law, particularly for those of us who are baby boomers.

 

What are some of the “legal problems” associated with longevity relevant to elder law?  Here are some to consider:

      • Wills (especially important if part of a blended or nontraditional family, or if no children)
      • Durable Powers of Attorney (preventive tools used, among other things – to keep people out of guardianship or conservatorship proceedings in probate court);
      • Longevity  Estate (financial and tax) Planning;
      •  Elder Abuse and Financial Exploitation: Prevention,  Detection and Redress;
      • Age and Disability Discrimination in Housing;
      • Marriage, Common Law Marriage; Divorce and keeping the peace in a blended family;
      • Health Care Power of Attorney and  Advance Directives (living will);
      • Guardianship and Conservatorship probate litigation;
      • Capacity Issues in a variety of contexts (especially troubling financial concerns for someone who is starting to “slip” cognitively);
      • Probate Decedent’s Estate or Trust  Administration; and
      • Medicare and Medicaid planning.

Because elder law is a practice area defined by the client served, which means the representation of older people (elders), this sometimes involves the presence or participation of family members or other persons who are involved with caring for or supporting the elder. Elder law has developed from a relative niche practice when it was first recognized as such about thirty years ago – to more of a general practice area. As a practice area elder law is constantly developing,  and will continue to do so as we see the number of baby boomers age.   The durable power of attorney for health care is probably the most recognized symbol of the rise of the number of elders in our population. Our society will continue to grapple with many longevity and bioethics issues, and quality of life questions will loom larger as baby boomers age and the number of elders rises.

So how do elder law attorneys help their clients?  I like to say that the law in this practice area is “a healing profession.”     We help individuals, who are often supported by and rely on family members and other loved ones manage disability – negotiating the short term and long term measures to assist an elder in financial and health care decision-making.  We can also identify the legal requirements for maintaining an elder’s safety net (aging in place in community, what is effectively “social security”).  An elder law attorney with some EQ (emotional intelligence)and empathic skills can also have frank conversations and  look at legal problems in the context of financial, medical, emotional , and autonomy factors and values important to the individual.  Many elder law attorneys have a wide and deep network of allied professionals who perform work for elders as professional guardians, professional fiduciaries, money management and bill paying services, geriatric care managers, among others.

A big part of elder law is about counseling clients about how available options and alternatives can serve their identified strategy and  goals.  Each of us who has attained “elderhood” has done so in an individual way, based on certain values, attitudes and approaches to life.  You may not think that an attorney would be asking clients about these personal matters, but they are often a substantial part of how an elder law attorney approaches a client’s problem.  Why would this be beneficial to the client and his or her family or community? I think it is because many of us – me included – take a big picture approach to our client’s problems, applying helping principles in a multidisciplinary way and with a focus on empathic listening.

Here I would also offer an insight from  a favorite book of mine – Daniel Pink’s “A Whole New Mind,”   which talks about “high concept, high touch”  and in terms of the elder law attorney’s work, it takes us from being a document preparer to being a symphony conductor.   A symphony conductor . . . . really Barb?!    What I’m talking about is an ability to do my work for clients with sensitivity to the big picture of creating something unique for them  that is beautiful, an artistic expression of legal craftsmanship.  What Pink writes about is a shift from IQ alone to include also EQ (emotional intelligence), an increased value placed on creativity, and the importance of meaning-making in our work lives.  All of these are important considerations for solo attorneys, particularly those working in elder law where there is often chaos, loss, grief, and high levels of emotionality among clients and their family members.   I know that focusing on how I am helping people in creative and compassionate ways makes all the difference for me – it is why I love doing the work I do for clients.

Legal and Financial Considerations for Nontraditional Relationships

 

 

This post is the first of a series about estate planning and unmarried couples.  By “unmarried couples,” I mean both heterosexual couples who choose not to marry and same sex couples whose unions or marriages are recognized by some states.

Being in a nontraditional relationship presents a number of challenges about which people need to be aware.  These challenges vary from state to state but tend to be uniform in the federal context (IRS, social security, veteran’s benefits).  The legal challenges stem from the fact that (unless there is marriage, civil union or in Colorado – a designated beneficiaries agreement) the couple are legal strangers to each other, with limited or to-be-determined rights regarding the other or their relationship.

Some financial difficulties include:

1. You have to file your taxes as head of your household, or as a single individual.

2. The state you live in may not provide a divorce-like (palimony or settlement) procedure that gives you your equitable share of assets.

3. You and your partner do not get each other’s Social Security benefits.

4. You may have to sell your house to get long term care benefits under Medicaid. (This is changing, read  this for more information.)

5. You must designate your partner as the person to make your decisions if that is what you would like to see happen (by using a medical or financial power of attorney). Otherwise, the state you live in may default to a blood relative to make those decisions.  See this news release from the CMS website regarding Medicare’s enforcement of equal visitation.

6. You will want to carefully consider creating a will to get around your state’s intestacy laws in the event they do not recognize your union.  Keep in mind that Colorado is one of ten states that recognizes common law marriage, and unmarried couples can execute a designated beneficiaries agreement

7. You are not eligible to receive the transfer of your partner’s exemption like married couples are.

For more information about the financial difficulties, check out Erik Carter’s article “In a Nontraditional Relationship? Beware These 7 Financial Pitfalls,” in Forbes.

The lack of legal and financial protections apply to same sex couples along with unmarried couples who could otherwise get married but have chosen not to get married.  Keep in mind that your relationship may seem like a marital one, but just because you behave the same way as a married couple, the law will not treat your relationship with as a marital relationship.  It’s best to know these things up front and not be surprised by them!

Estate Planning for Someone With a Chronic Illness

A large factor in the burgeoning number of older people in our population is the successful management of chronic conditions and diseases.  Many chronic conditions and diseases are now, thankfully, routinely managed with regular medical care and pharmaceutical drugs.  Some chronic diseases can adversely impact a person’s ability to make a living during the prime earning years of their lifetime, and may cause periods of physical and mental disability and have serious emotional consequences as well.  Many people who are disabled as a result of chronic illnesses or conditions are not “seniors” and they face special estate planning challenges.

I recently had the opportunity to hear Martin Shenkman, a nationally recognized estate planning attorney, CPA and RV driver,  speak to a professional group to which I belong.  He had some very useful insights into legal, financial, medical and tax planning for those suffering from a chronic illness.  Shenkman’s wife Patti (an M.D.) was diagnosed with multiple sclerosis in 2006 and now he and his wife and their little dog Elvis (yes, he’s a chick magnet) spend some time traveling around in an airstream trailer so that Shenkman can deliver insightful and entertaining educational programs to professional planners (lawyers, CPAs, financial planners and insurance consultants) on  tips for advising clients and their families who are living with chronic illnesses including: ALS; Alzheimer’s Disease; Parkinson’s Disease; COPD and others.

Shenkman’s article “Estate Planning for Clients with Chronic Illnesses” is available here.  You can look at his numerous articles helpful for both consumers and professional planners here.  I especially liked his “holistic” or multidisciplinary approach to planning for individuals and individuals relative to their unique family situations,  and which addresses not only the legal issues but also financial, tax, health and lifestyle considerations of those facing chronic diseases and conditions.

In the legal context, chronic diseases and conditions can often impact a client’s capacity to hire an attorney, as well as the capacity to make a will or trust.  This is problematic in some progressive diseases in particular, such as Alzheimer’s and Parkinson’s, but also in MS or COPD, where flare-ups may implicate cognitive functioning.  Parkinson’s may also involve certain forms of dementia, and where there is depression with any of these chronic diseases, it can sometimes be masked in other symptoms.

People facing these diseases may be more motivated to consider planning for their future and to take care of their family.  Clients who are meeting with an attorney may want to make sure that their lawyer asks enough questions and that she or he listens carefully to responses.  What can sometimes happen is that a detail that the client thinks is not important is indeed important from a legal planning perspective. Some elder law and estate planning attorneys are more knowledgeable about and sensitive to medical conditions and diseases and how they impact a person’s life.  The average age of diagnosis for both Alzheimer’s  and Parkinson’s is 60 and over.  Both Alzheimer’s and Parkinson’s are progressive in nature – Alzheimer’s is a brain disease and Parkinson’s is a disease of the nervous system.  Both of these diseases present challenges for persons interested in taking care of themselves and their families while they are living with the disease, so it is important to not wait until the opportunity for planning has passed.  Both The Alzheimer’s Association at http://www.alz.org  and the Parkinson Association of the Rockies at http://www.parkinsonrockies.org have helpful information for the public about legal issues for planning purposes.  Taking an approach to plan for a progressive disease such as Alzheimer’s or Parkinson’s can help people affected by these diseases maintain quality of life and dignity.