Springtime in Colorado: The New Colorado Civil Union Act – Part I of II

Here is a picture of some physical evidence of springtime from my front yard.  It’s a new home I moved into in the late fall, so I am very happy to see these neighbors!

 

As I walked around Ketring Lake late yesterday afternoon, I was pleased to hear the familiar sound of the red-winged blackbird.  I knew spring had officially arrived.   This spring brings important legal changes in Colorado.

We are reformers in spring and summer; in autumn and winter,

we stand by the old; reformers in the morning, conservers at night.

Ralph Waldo Emerson

Last week (on the first day of spring), Governor Hickenlooper signed SB 13-011 into law.  The new law is titled the Colorado Civil Union Act, and same gender couples can get “hitched” as early as May 1, 2013.  Read the text of the new law here .

Colorado is the fifteenth state to recognize same-sex marriage or civil unions (in which partners are treated as spouses) and is evidence that we have come a long way since Amendment 2 in 1992.  This post will be split into two installments – the first one to take an overview look at the new law, and the second to explore it  in more detail and look at the impact on the designated beneficiaries law.

With the passage of SB 13-11 and its signing by Governor Hickenlooper last Thursday, same gender couples will be allowed to become partners or parties to a civil union (I prefer to use the term “get hitched”), and these partners will be treated as “spouses” for all intents and purposes under the law of Colorado.  The statutory language of the Civil Union Act is careful to not create or be construed to create a “marriage,” which is defined by the Colorado constitution (this was Colorado Constitutional Amendment number 43, voter approved in 2006) as the union of one man and one woman.  Yes, you can guess that we estate-planning lawyers who get together for our monthly Probate Day at the Colorado Bar Association will be working on revamping our forms.  There is a recently formed subcommittee of the Orange Book forms committee that will be looking into revising our Colorado estate planning forms book so that the meanings and usage of the term “spouse” are consistent.  Persons who get a civil union license certified by the clerk and recorder will also be subject to the same procedures for dissolution as spouses.  Taxes are another matter, however – the statute does not contain authorization for the filing of joint state taxes and federal law does not allow such joint filing.

This is really a sea change for same-gender partners, who previously had to forge their own legal relationships to provide evidence of their relationship and protections for each other and their family because the law in many respects treated them as “legal strangers.”  The Civil Union Act changes all of that.

Another important development is taking place right now.  Oral argument in the Windsor v. United States case before the U.S. Supreme Court has concluded.  You can read SCOTUS blog coverage about it here.  That suit challenges the federal Defense of Marriage Act (DOMA), and the Supreme Court’s decision can impact the rights of same gender couples under federal law in many important ways.  I mention the DOMA law because Colorado was one of the states to amend its constitution to recognize “marriage” as between one man and one woman.  Colorado Const., Art. II, sec. 31.  This was as a result of Colorado Constitution Amendment 43, voter approved in 2006.  Its definition of marriage precludes use of marriage and necessitates “civil union” and also allowed for Colorado to decline to extend full faith and credit to a same-sex marriage from another state.  The DOMA accomplished this by allowing states to choose to not extend full faith and credit to another state’s legally recognized marriage.

Let’s take a look at the Civil Union Act for an overview.  It authorizes any two unmarried adults, regardless of gender, to enter into a civil union.  In order to accomplish this, parties wishing to enter into a civil union will apply to the county clerk and recorder for a license, and once the license is obtained, it must be certified within thirty-five days and returned to the clerk and recorder within sixty-three days of certification.  This is the same timeline as applies for marriage licenses and recording time solemnization.  The persons qualified to certify a civil union are the same as those qualified to solemnize a marriage and include the partners themselves.  With regard to dissolution of a civil union, the laws of Colorado will apply to civil unions entered into in Colorado as well as to those recognized by this state effective May 1, 2012.  Partners will have to follow the same rules of dissolving their marriage as married persons.  Indeed, the third stated purpose of the Civil Union Act is to offer same-sex couple the equal protection of law and give full faith and credit to recognize relationships that were legally created under another state’s law – similar to a civil union but which would not otherwise be recognized under Colorado law.  Important legal principles of extending full faith and credit to another state’s laws as well as comity factor importantly in this new law.

To conclude this first installment, let me focus on the estate and elder law implications – here are a few things to note:  Title 15 of the Colorado Revised Statutes  (Probate, Trusts and Fiduciaries) references to spouse will include partner or party to a civil union; note that “spouse” will include partner in the Colorado Medical Treatment Decision Act (Colo. Rev. Stat. 15-18-101 et seq.); the spousal privilege under evidentiary rules will extend to partners to a civil union; a child born during a couple’s civil union will be the child of both partners; and partners may enter into marital agreements (commonly referred to by the slang term “prenup” – but Colorado recognizes such agreements after becoming spouses – which would also include a “postnup”).

©Barbara Cashman     www.DenverElderLaw.org

Health Care Power of Attorney, HIPAA and Hospice

 

When someone asks me what a health care power of attorney or MDPOA (medical durable power of attorney) is for, it usually takes a bit of an explanation.  Sometimes I will talk about the roots of “informed consent” in medical treatment deriving from the Nuremberg trials.   World War II tragically produced many sound principles of international law.    In our country, we sometimes speak about rights and autonomy in the context of medical care, but longevity and medical advances have provided a new proving ground for patient autonomy.  We have the right to decide alongside the right to not decide.  Beyond the advance directive, which seems to have its own well-run PR department, few people are aware of the MDPOA and its significance and utility in today’s world of medicine.  Making treatment choices in advance becomes particularly important when a frail elder and family members face difficult decisions about treatment choices.  These matters are often made more difficult by the way our health care “system” works in this context, the Medicare context, where doctors are paid per intervention, often leading to worse outcomes for patients  those patients who tend to be over treated.  Indeed, when people make their wishes known to family member and empower another to decide for them in a MDPOA , that empowerment alone can often lead to better outcomes.    So empowerment about health care decisions, considering the “what happens if. . . “ along with the “what happens when. . . . “ can help give our lives meaning by considering the end of our lives – not just as a cessation of life but in the context of its meaning.

I’ll quote Ralph Waldo Emerson here

“The purpose of life is not to be happy. It is to be useful, to be honorable, to be compassionate, to have it make some difference that you have lived and lived well.”
Whatever your purpose is, make sure that you have the difficult conversation in advance.  It will ease your mind and the minds of your dear ones.  They will know what you want and will be much less inclined to select by default the heroic and futile medical interventions that are so often based on guilt, guilt flowing from the lack of knowledge of what the person would have wanted for themselves.

On the less philosophical and more practical front, whatever the documentary source of your MDPOA, you will want to ensure that it contains an effective HIPAA release.  Learn more about the Health Insurance Portability and Accountability Act of 1996 here.    Otherwise, your appointed agent may have all the authority to make decisions for you but effectively no access to your federally protected health care information.  I was reminded of this a few years ago when I visited a client in the hospital.  I asked one of the nurses at the desk if they had a MDPOA form available and they gladly supplied one to me.  It did not contain any HIPAA release. . . .

Just because you are a family member doesn’t mean you have HIPAA authorization.  You might be familiar with the codes that many hospitals now use regarding access to information.  The best policy is to have a MDPOA with a HIPAA release.  An interesting detail on the HIPAA front. . . . .  This is a recent development that is interesting as it involves digital health information, also known as “electronic protected health information” or ePHI.  It is the first settlement on record of a breach involving a provider with fewer than 500 patients.   The hospice involved was fined as a result of the theft of a laptop containing ePHI on which it had not adequately adopted or implemented security measures to ensure confidentiality of ePHI it created, maintained and transmitted using portable devices.  You can read the entire Resolution Agreement here .   Hospice providers generally make home visits to their patients and this is a cautionary tale about the threats of portable medical care and home visits.

A couple helpful resources for Coloradoans looking for more education about MDPOAs and advance directives include pamphlets available from The Colorado Bar Association at www.cobar.org and information from the  Colorado Advance Directives Consortium at www.coloradoadvancedirectives.com

©Barbara Cashman     www.DenverElderLaw.org

 

Longevity, Conflict and Meaning

 

I must be on a roll here thinking about conflict at the end of life.  In light of the recent 911 call from the independent living apartments in Bakersfield and other recent things I’ve read – this issue can use much more discussion.  I even posted a link to my Facebook page    about it.     I liked reading Charles Ornstein’s recent article in the Washington Post entitled “I thought I understood health care.  Then my Mom went into the ICU.”  Read it here.    Ornstein’s poignant and personal account of the difficult decision faced by his family after his mother was in a coma and certain decisions had to made is very instructive.  I hear  frequently from clients and family members who are health professionals  that their training makes these difficult decisions much easier.  I am not always so sure.  Some oncologists, for example, are much more focused on a patient’s quality of life at the end of the course of a long and devastating disease, while others prefer to operate in more of a “superhero” mode, vowing to never give up on a patient’s chances for recovery.  There is no right or wrong here – all of these decisions are difficult, even when we have a pretty good idea about the choice and preferences our loved one has previously expressed.  I think of my own experience with my parents’ deaths.  My father died in March 2010 after a long bout with a combination of an undiagnosed neurodegenerative disease coupled with what was later discovered to be metastatic prostate cancer.  I accompanied him to the doctor on many occasions and was his health care agent for the last nine months of his life.  My mother, his wife of 59 1/2 years, worked for many years as a Registered Nurse  – but this set of considerations and +decisions was a whole different ball game.

It is usually extremely difficult to talk with others about death, and this difficulty is lessened somewhat when the conversation is initiated by an older loved one who wants to make his or her wishes known.  This doesn’t often happen.  There are ways to start the conversation though!  It only becomes more difficult in the face of a life-altering illness.    I have worked with many people with terminal illnesses.  It is not any easier to consider end-of-life issues even if they are more “real” in light of a life-threatening disease.  Because I know how difficult it can be for a doctor to raise the issue of hospice care and associated palliative care or quality of life issues with a patient – the patient may believe that their doctor is “giving up” on them – I will often take the opportunity to discuss these issues when appropriate.  I think the questions are much less threatening when you are discussing them with your lawyer as opposed to your doctor.  These involve, after all, legal questions.  Elder law is such a fascinating mix of and intersection of legal, medical, financial psychological and cultural questions.

I also enjoyed reading “Managing Our Miracles: Dealing with the Realities of Aging” in the latest issue of Bifocal, the publication of the ABA Commission on Law and Aging    In this article, Monsignor Charles Fahey refers to “the third age” – the one that is part of human aging that is beyond human reproduction and physical strength – which has become profoundly extended in recent years.  I have blogged previously about Erik Erikson’s developmental stages   and his wife Joan’s extension of  “The Life Cycle Completed” which included her own chapter entitled “The Ninth Stage.”   I think old age and elderhood need to be examined and re-examined in our culture so that we have a more inclusive definition of what is our human “useful shelf life.”  Many of the clients I see, along with assistance from their family members – do an excellent job of meeting the challenges of increased longevity.  As I remind people, this new age of elderhood is something that affects us in a variety of new and sometimes surprising ways.  This longevity can provide opportunities to live parts of a life that had previously been unlived, or not – depending on each of our own unique circumstances and how we find meaning in our lives.   As Hermann Hesse observed:

There’s no reality except the one contained within us. That’s why so many people live an unreal life. They take images outside them for reality and never allow the world within them to assert itself.

Longevity challenges that, and we generally have no frame of reference for today’s longevity.  We can create this new stage of life within ourselves and share it with our loved ones.    Dementia can be a side effect of longevity for many of us or our family members or loved ones.  We make meaning in our lives and others in our ability to “do” often as some kind of proof of our existence.  Dementia can challenge all those beliefs and ideas about who we are, what it means to “be” simply and no longer able to “do” as we did for ourselves and for others before.  This is part of the new reality of aging and longevity.  More on this topic later. . . .

©Barbara Cashman     www.DenverElderLaw.org

Old Age and Longevity as a Source of Family Conflict

Hmmm. . . .  what kind of a title is that?!  Well, it hearkens back to a bumper sticker from The Conflict Center (a local nonprofit  I used to volunteer with) that I have always liked: “Conflict is Inevitable, Violence is Not.” Conflict is natural, inevitable and often quite productive – when it is managed effectively.  Due to advances in health care and an overall increase in longevity, we are living longer than before and in unprecedented numbers.  We have never had this many old people on the planet before . . .  and here come the baby boomers in their “silver tsunami.”  We are all charting a course together on how to structure community that includes older people and values them not just for their “doing” but also for their “being.”  Beyond some basic and fundamental baselines, each of us is free – for better or for worse – to make our own choices about how we structure that community.

In my work I sometimes see people dying with large amounts of funds saved, but more often there is “enough” and in other circumstances people have already run out of money.  These things are rather difficult to predict, as a major factor is health care cost –many of the costs not covered in whole or in part by Medicare, and then there is also the choice about where and how to live (or with whom).  Many of us are facing financial challenges or difficulties as we look at aging in general.  I liked  “No Country for Old People”  – a post that I found thanks to my wills, trusts & estates prof blog subscription – read it here .

On page two of the post, you can watch Sam Waterston’s Saturday Night Live skit selling insurance to senior citizens to protect against robot attacks.  There are many forces coming to bear on individuals and families as we age in longer lifespans and in greater number.  So far, I haven’t had clients coming to me to deal with the aftereffects of robot attacks . . .  but there are the troubling and more subterranean fears about running out of money and losing autonomy.  There are more middle-income Americans aged 55 and older who are carrying more credit card debt (relative to income) on average than younger people.  You can read the recent report by EBRI, the nonpartisan Employee Benefit Research Institute here .

The tricky part about saving for retirement is knowing how much savings will be enough.  Many of us rely on financial advisors to help with managing investments and retirement savings, but the bottom line is that there isn’t really a “rule of thumb” for retirement savings.  While we are generally able to calculate our social security retirements benefits based on credits and retirement age, none of us knows how long we will live and whether our retirement savings will be enough.  For many of us, financial uncertainty is a source of stress during people’s working lives, so why wouldn’t it carry into retirement? Indeed, this can be an ongoing source of worry, with many older people not wanting to be a financial burden on their children.  Sometimes these can become a source of conflict as elderly parents struggle to manage their life activities in the face of declining health and capacities, which may include difficulties managing financial affairs.  One of the early warning sign of dementia is inattention to or mismanagement of finances.  Sometimes this can be evidenced by letting mail pile up, becoming forgetful about check writing, bill paying and handling cash.   For adult children and loved ones, the financial difficulties can be a source of conflict because children don’t often know when and how to step in to assist.  Sometimes this can make for a difficult situation, especially if a person with declining abilities becomes prey to psychological or financial abuse.  The signs of these forms of abuse (as contrasted with physical abuse)  along with neglect, are often missed.  Read the January newsletter from the Colorado Coalition for Elder Rights & Abuse Prevention here – it discusses elder abuse and medical care as a public health issue.

This is new terrain for nearly all of us.  Our grandparents and great grandparents didn’t tend to live that long, so we don’t tend to have a “model” of what a retirement span of 20-30 years looks like.  We mustn’t forget that we are in this together and there are valuable resources to help us.   The National Council on Aging has an informative fact sheet about economic security for elders available here  and their website also has helpful information about healthy aging.

How we deal with conflict – consciously or unconsciously – and whether we handle it in productive or counter-productive ways – is an important facet of aging.  Whether the “aging” we think of is our own or we are coping with losses sustained by age and frailty of a loved one, aging, disease, disability and death are all natural sources of conflict.  They are part of life after all.  How we choose to manage them is up to us.

©Barbara Cashman     www.DenverElderLaw.org