Colorado’s New Law on Mandatory Reporting of Abuse or Exploitation of Elders

 

An Irish Bridge

Like every other state in our nation, the population of Colorado is getting older.  Longevity and independence can have a price for some of us, and there are many people in our population who are elders and are at risk of exploitation and abuse.

Gov. Hickenlooper signed this act into law on May 16, 2013.  It makes Colorado the 48th state to have such legislation in place. Click here  to read the Act.   Prior to this law, there was no mandatory reporting of elder abuse.  Elder abuse, as defined by the statute, includes physical and emotional abuse as well as financial exploitation.  The new law will provide additional protections to at-risk elders.

So here’s a bit of background:  In 1991, Colorado enacted the Adult Protective Services (APS) system, which is designed to protect vulnerable or at-risk adults who, because of age or mental or physical ability, are unable to obtain services or otherwise protect their own health, safety, and welfare. Under current law, an “at-risk adult” is any person over the age of 18 who meets these criteria.  Prior to Colorado’s new mandatory reporting  law, members of certain helping professions were encouraged to make reports of known or suspected abuse and provides a telephone hotline for all citizens. Among its many provisions, this bill creates a new class of protections for “at-risk elders,” who are defined as any person age 70 or older. The law also makes a number of changes to the APS system.

So – how does it work? Starting July 1, 2014, members of helping professions listed in the statute as “mandatory reporters” are required to report known or suspected abuse of at-risk elders.  (You can read a follow-up post about mandatory reporters here.)  The report must be made within twenty-four hours and the penalty for not reporting is a class 3 misdemeanor.   A person who files a report in good faith is immune from civil or criminal prosecution.

Here’s a brief Q&A on this new law…

What else does this new law provide?

The bill also makes applicable existing penalties for theft-related crimes, caretaker neglect, and making a false report for offenses against at-risk elders.

What about changes in how law enforcement handles these matters?

Law enforcement agencies are required to complete a criminal investigation when appropriate and to provide a summary of investigation reports to the relevant county department of social services and district attorney.

How about training for law enforcement personnel?

The Peace Officer Standards Training (P.O.S.T.) Board in the Department of Law is required to develop and implement a training curriculum no later than January 1, 2014. Training is to assist peace officers in recognizing and responding to incidents of known or suspected abuse and exploitation of at-risk elders. On and after January 1, 2015, local law enforcement agencies are required to employ at least one officer that has completed the new P.O.S.T. training. The board is authorized to charge a fee to participants for the training.

And how will the mandatory reporting be implemented?

The Colorado Department of Human Services  (something about APS and county) is directed to implement, beginning  January 1, 2014, a program to raise awareness among both public and the mandatory reported about mistreatment, exploitation and self-neglect among at-risk adults, including at-risk elders.

What about the work that county departments of social services (typically through APS) have been doing so far with their investigations?

County departments of social services are mandated under Section 26-3.1-103, C.R.S., to investigate all reports of abuse, exploitation, or neglect of at-risk adults. Reports are evaluated and investigated according to the rules established by DHS. DHS rules currently classify responses as a referral, no response needed, urgent and requiring follow up, requiring a response within 24 hours or requiring a response within 3 days, followed by appropriate services as needed. Services can range from assisting persons with obtaining public benefits and providing case management to seeking emergency placements and guardianship of the at-risk adult.

Colorado data shows that in FY 2011-12, a total of 11,000 new reports were filed. Of this number, 4,733, or 43 percent, required an investigation. In addition, a total of 1,750 investigations were carried forward from the prior fiscal year. Overall, cases requiring investigation have increased by an average of 2 percent per year.  You can read more important information about the new law here .

I will be blogging more about the topic of financial exploitation of elders, as I have previously.  It will be interesting to see how the approach of law enforcement agencies toward the financial exploitation of Colorado elders will change with this new law – with the reporting requirements as well as with the training that law enforcement will get.  I am optimistic that this law will help soften the bright line distinction that many law enforcement agencies have drawn between what constitutes exploitation which warrants criminal investigation and prosecution and that which is otherwise civil in nature, meaning that the victim must undertake his or her own civil remedies.

©Barbara Cashman 2013     www.DenverElderLaw.org

Disabled adults, Special Needs Trusts and Medicaid: the Importance of Planning

Storm near Barr Lake, August 2013

Life can be complicated, especially if you are a parent or guardian of a disabled person who receives government benefits.  If you don’t make any plan or make an estate plan which fails to adequately address a disabled beneficiary’s receipt of government benefits, an inheritance can jeopardize a disabled recipient’s qualifications for needs-tested (income or asset-based) government benefits.  Sometimes a parent’s estate plan will effectively disinherit the disabled adult child, leaving a request encouraging a nondisabled adult child to “do the right thing.”  At the other end is a devise or inheritance left outright to a disabled beneficiary.  This post-mortem planning can create a lot of stress for everyone involved, and it can interfere with the grieving process and put strains on the ties between siblings and other family members.  In my estate administration practice, I have seen both of these scenarios play out.  I don’t recommend either as a viable choice for a thoughtful planner.  So – what are the alternatives?

I recently read the June 2013 issue of Bifocal (a really interesting e-zine published by the American Bar Association’s Commission on Law and Aging), which had a good article about pooled trusts.  These types of special needs trusts offer flexibility for families of modest means in planning for disabled family members.  Read it here.

So what would “modest means” be for purposes of a pooled SNT?  I recently spoke with Megan Brand, executive director of the Colorado Fund for People with Disabilities.  (CFPD is the longest-standing, locally administered pooled trust in Colorado.)  Her rule of thumb for a disabled young adult is to encourage a pooled SNT where there is less than $150,000 set aside for such person’s benefit.  If you’d like to learn more about the different types of trusts and planning for the needs of disabled family members and loved ones, I encourage you to attend the Colorado Guardianship Association’s  next educational presentation on Tuesday, September 10, 2013 at Porter Place,1001 E. Yale Avenue from 8:30 am – 10:15 am.  Megan will present on Pooled Trust, Individual Trust, Supplemental Needs Trusts, Disability Trusts, Special Needs Trusts Income Trusts,  1st Party, 3rd Party… What does all of this mean?  How do they differ? How are they the same?  What trust is the best fit for my client or family member?  Once they have a trust, what can it be used for and how do we actually make the purchase happen?   To register online for this program, click here.

Here’s a link to another helpful article about the importance of planning and considering the impact on SSI and Medicaid qualification of the disabled person.  But don’t be fooled into thinking that special needs planning involves merely trusts!  Trusts are important documents but it is a good idea to look at the big picture and talk with someone (like an elder law attorney) about how best to devise a plan assist a disabled person with financial, medical and personal care planning.  Another good resource is Hal Wright’s 2013 book entitled “The Complete Guide to Create a Special Needs Life Plan.”  I checked it out from my local library.    This book is a thoughtful approach (by a Certified Financial Planner) about how to devise a plan for a disabled child to ensure access to services to meet those special needs to maintain emotional, financial and other important resources.  At the top of his list of importance are the following three components of an estate plan: preparation of appropriate legal documents; establishment of an SNT; and getting guardianship and/or conservatorship status in place.  If you’ve been thinking about what you need to do to put a plan in place for a disabled adult – please don’t wait until it’s too late to plan.

©Barbara Cashman 2013     www.DenverElderLaw.org

Fear and Boredom in Retirement

Okay, at first blush you might think this is some kind of takeoff on that Hunter S. Thompson novel, but no, not at all (just the same number of syllables) – it’s just my sometimes warped sense of humor.  I’m on a roll – I delivered documents to a client for signing today and made jokes about my lack of appropriate “execution” attire to my two witnesses.

A few weeks back I was talking to a retired teacher who lives in my neighborhood.  She mentioned in an offhand sort of way that retirement was boring.  I didn’t really know her well enough to ask a deeper question in response, and the conversation proceeded to other topics.  I think boredom is a big problem for many retired people.  I think of my favorite high school teacher who died several months after retirement.  I know that death soon after retirement is an extreme example of what I ‘m talking about here, but the bigger questions is – what do we do with our time that is remaining?  What is boredom anyway – is it a psychological or emotional phenomenon, a cultural phenomenon – could it lead to an early demise?  I think the answer is “yes” to all of the above.  In the July/August 13 issue of Scientific American Mind article by James Danckert entitled Descent of the Doldrums,  the author (a professor of cognitive neuroscience)  identifies two types of subgroups for the study of boredom in people: (1) agitated boredom in which people tend to rely heavily on external stimulation, where the expectation is that the world is to deliver their entertainment rather than attempting to amuse themselves; and (2) apathetic boredom, which goes by the colloquial term “couch potato” which is essentially disengagement.

The first type, which can include ADHD and traumatic brain injuries tends to be more troubling at least externally  because it can manifest in risky behavior that can lead to disastrous consequences.  But I wonder about the second type of boredom and elders.  Asking oneself “is this all there is?” after reaching the promised land of retirement – only to find it isn’t what it was cracked up to be . . . .can also lead to an early demise but is probably driven more by internal factors.  A 2009 article in the International Journal of Epidemiology concluded that “those who report being bored are more likely to die younger than those who are not bored.” . . . . Finding renewed interest in social and physical activities may alleviate boredom and improve health, thus reducing the risk of being “bored to death.”

So lumping these two articles together, I make the connection that the higher degree of boredom, the greater likelihood that a person would show depressive symptoms and low motivation – an interesting boredom and depression link here – and the increased risk of cardiovascular disease and premature death.

I also found a 2007 article with a similar title interesting   and it discusses the individual differences as well as gender factors (men are more likely to be bored than women) that contribute to the wide gulf of feelings  that are or flow from boredom.  I tend to think (as a mother of teenagers) that the always on, networked environment that surrounds young people and those of us who identify as “digital immigrants” contributes to boredom as an inability to entertain ourselves.  Its implications for being able to relate to other human beings on an emotional level is a topic I have blogged about previously in a GriefLink   post  .

So we can think of many behaviors associated with the state of boredom and many reasons that can contribute to a sense of boredom – but what is it and why should we care?  On a big picture level, boredom is essentially a disconnection from the present tense, being engage in your life as a purposeful activity.  Many of us suffer through jobs we don’t like or find meaningful and we might look forward to that far away notion of our retirement like a ship on the horizon coming to rescue us.  Funny thing is that once many people transition to be retirees, it is as if something flips – our orientation to the present is still distant from our perception and experience of life, even as that ship takes us away from the island, the island becomes the backward-looking focal point against which experiences are measured.  A good recent literary example of this phenomenon is found in the 1983 book “The River Why” by David Duncan.  He writes of a “lifelong dream” that turns out to be hollow and meaningless.

I liked what Robert Sardello wrote about soul boredom and fear in his book Love and the World:

One feels boredom when there is a desire for new experiences, while at the same time new experiences are not allowed to enter.  I feel bored when I want to do something but do not know what to do because the prospect of doing something really threatens old conceptions.  Boredom may be the primary malady of the age.

R. Sardello, Love and the World (2001) at 103.

In some ways, certain forms of dementia are a process of forgetting who we are in our personal identity.  For some people this can manifest as an inability to remember the past as well as anticipate the future –  which means there is only the present moment, with no other relational context.    So – what to do with the boredom and emptiness, the hollowness of interior when you arrive at a place that looked so completely different when it was a far away goal?  This crisis of meaning is a wonderful opportunity to examine a life’s purpose, the journey so far.

©Barbara Cashman 2013     www.DenverElderLaw.org