Sharing a Difficult Diagnosis – Listening With Love

My great-great grandparents

My great-great grandparents

The other day I read an interesting post from Health Care Chaplaincy.  As synchronicity would have it, I had earlier that day responded to an online friend’s sharing of a very grave diagnosis.  You can read the Health Care Chaplaincy post entitled “Dying to Be Heard” here.  Sometimes it seems odd that so much of our inward searching and striving toward meaning and purpose in our lives must rightly involve sharing with other people, family and loved ones as well as relative strangers.  I think it is the simple fact of recognizing that we are human and that we each have very different ways of being in the world but there are several important ways in which we connect as humans and by connecting, restore our own humanity as we recognize it and honor it in others.

Ease and dis-ease.  What is the real distinction?

Here is a nice YouTube video about one man’s journey through a diagnosis and into the rest of his life.  So managing that solitude and intimacy divide is an essential struggle that we face no matter where life’s twists and turns take us.  One struggle that a chronic debilitating condition or a terminal illness places in front of a person is the question about how to spend the limited space that is the rest of life.  There may be a shift from quantity to quality.

How one’s world begins to shrink or congeal as a result of a diagnosis or a disease progression (in the case of debilitating physical losses or mental or cognitive impairments) is a uniquely individual thing.  Shrinking can sometimes bring clarity and freedom.  What is a person’s life story and how does it change, if at all, as the result of a life-altering diagnosis? One type of active listening that I learned about during my mediation and facilitation training (and maybe also from reading a few parenting books) is reframing.  It can be based on among other things, a listener’s ability to restate what a speaker has said, and to reflect on the feelings and values communicated by the speaker’s words and often their gestures.

I think it is a good idea to not underestimate the power of listening and of being heard.  There are many lists, tasks, processes and other guideposts around negotiating grief in our lives, but each of us experiences it differently.  Just as we all feel loss in our lives differently, the grief which is the feeling of attending to the grief is unique.  The opportunity to be heard and to listen to others is a way of extending compassion to another and recognizing our common humanity in this uncertain thing we call life.

I liked this recent post from SciAm entitled “A Happy Life May Not Be a Meaningful Life.”  And no, I didn’t like it just because the authors began the post with a quote from Viktor Frankl, but also because some of what they observe is about happiness as a thing that one gets, something material, defined outside of us.  Its relation to meaning in our lives, which is about quality – not quantity, stands in contrast.

What is it that makes sense in our lives and of our lives? I think paying attention to mortality can be an excellent teacher.  I will quote from The Prophet by Kahlil Gibran:

You would know the secret of death.

But how shall you find it unless you seek it in the heart of life?

For life and death are one, even as the river and sea are one.

. . .

Only when you drink from the river of silence shall you indeed sing.

And when you have reached the mountain top, then you shall begin to climb.

And when the earth shall claim your limbs, then shall you truly dance.

The Prophet (1976: Knopf) at 80, 81.

The power of telling and listening to a story is a power to heal.  It only requires two of us – a speaker and a listener.  Compassion is a core value, fundamental to our interdependence on one another.  Life goes on after a difficult diagnosis, but the terms on which we engage often change, sometimes dramatically and other times by degrees.  The terms most certainly can change as we reach farther in our lives and deeper.  Confronting our own mortality is never easy, but sometimes people do so with incredible grace.  You can listen to the late singer Lorraine Hunt Lieberson’s rendering of Bach’s Cantata 82 “Ich Habe Genug”  here on youtube.  At the time of the recording she knew that her time was limited, due to the progression of breast cancer.

As we learn to approach and embrace the spiritual side of our mortality and attend to dying as a natural event and not as a medical problem to be managed, we can provide the care from the heart.  As that quote attributed to many different persons goes “the longest distance known to man is the distance between the head and the heart.”  We may be solitary travelers on our own paths, but we are not alone in our hearts.

©Barbara Cashman  2014   www.DenverElderLaw.org

Baby Boomers, Longevity and . . . Marital Agreements

 

La Mia Famiglia - Gava e Fornelli

La Mia Famiglia – Gava e Fornelli

You might be puzzling over my title – but rest assured that with the divorce boom among baby boomers, there will undoubtedly be more marital agreements being written for middle class or moderate income couples.  Most marital agreements (a/k/a “prenups”) are relevant for estate planning purposes and so most of them tend to be drafted by estate planning attorneys and not so many by family law attorneys.  And in case you’re wondering, there is no “standard form” for such an arrangement as the circumstances are as varied as the couple entering into the agreement.

Historically, marital agreements were more along the lines of blueprints for divorce. Some still retain that character, but well-drafted agreements tend to address the marital arrangement as it progresses through time, what a divorcing spouse will be entitled to after five years, ten years of marriage and of course – what those inheritance rights are.  The interesting fact about these agreements is that many couples will get them prior to the marriage or soon into their marriage and then will simply forget about the document and often draft other legal arrangements or take actions inconsistent with the agreement.  A will’s provisions can have interesting effects on the marital agreement and marital agreements that are not well-maintained can be problematic on a number of levels.

Last week Jim Bailey, a Denver attorney who litigates marital agreements, presented to the Women’s Estate Planning Council an insightful overview of the new Colorado legislation regarding marital agreements.  You can read the House Bill (13-1204) concerning the Uniform Premarital and Marital Agreement Act here.

In a nutshell, one of the more interesting details for the new law is the specificity of the waiver provision, which states:

If you sign this agreement, you may be:

  • Giving up your right to be supported by the person you are marrying or to whom you are married.
  • Giving up your right to ownership or control of money and property.
  • Agreeing to pay bills and debts of the person you are marrying or to whom you are married.
  • Giving up your right to money and property if your marriage ends or the person to whom you are married dies.
  • Giving up your right to have your legal fees paid.

Colo. Rev. Stat. Ann. § 14-2-309 (West).

Interesting to think about the focus of marital agreements on financial matters as differences over finances is often cited as a major or contributing factor to divorce.  There was also a comment by Jim Bailey about men tending to focus on the assets while women tend to focus on the relationship….

Bottom line to keep in mind is that in the dissolution of marriage context, the domestic relations court will often very carefully review a marital agreement – so if you’re thinking about one, make it good.

      And what about those pesky non-legal considerations for divorcing boomers. . . . ?

Who you gonna call? Who will a divorced person name as their health care agent or agent under a financial power of attorney after they have divorced? Divorce is a death of the marital relationship and while many of us can have amicable breakups and positive relationships, we are made “legal strangers” to a former spouse.  These decisions are important but difficult to consider – who we will choose to help us out in case of emergency?  We will all die someday, but the fact is with increasing longevity, a majority of people – including those youth-glorifying baby boomers – will be disabled or incapacitated for some period during life.  This is one of the biggest reasons to have durable powers of attorney in place – in case you need them.  Estate planning for blended families can be complicated – not the least of which is figuring out what are your individual and common goals and values.  Sometimes the finances are the easy part!

When older adults merge households, there can be a fruitful mix of traditions, with a few challenges mixed in.  If we think of later life as a time of harvest in the autumn, this can assist in imagining what the harvest may hold for us.  I quote from Anam Cara, the late John O’Donohue’s beautiful book:

when it is autumn in your life, the things that happened in the past, or the experiences that were sown in the clay of your heart, almost unknown to you, now yield their fruit.  Autumntime in a person’s life can be a time of great gathering.  It is a time for harvesting the fruits of your experiences.

Anam Cara: A Book of Celtic Wisdom (2008: HarperCollins) at 167.  Bringing in the fruits of harvest, the intended and unintended, the sweet and perhaps the less sweet, can help us understand the aging process not just as the wearing down of the physical being but as the ripening of the soul, as O’Donohue describes so poetically.  Marital agreements and other important documents can help blended families forge a path toward better understanding and maintaining peace.

 ©Barbara Cashman  2014   www.DenverElderLaw.org

The Durable POA: Detecting and Remedying Financial Abuse by an Agent

October 1908

October 1908

Detecting financial abuse or exploitation of an elder by their agent is not always an easy matter.  Recent studies show, however, that the vast majority of principals whose agents are misbehaving are persons who are not incapacitated.  This is good news because it means that the principal generally retains the right to “fire the agent” by revoking the agent’s authority to act.  So what are some things to look for?

Here’s a link to an interesting 2012 report from NAELA (of which I am a member) that responds to an inquiry by the Consumer Financial Protection Bureau’s request for information discusses a number of topics relating to elder financial exploitation and abuse.  The NAELA members’ responses cover several topics, including:  inadequacy of existing accountability controls to deter the misuse of senior advisor credentials; elders’ effective use of financial resources in their ability to select a financial advisor with the appropriate knowledge to address their specific financial needs (and an advisor who won’t sell them inappropriate instruments like high commission annuities) ; misuse of financial POA by family or friend was cited as the most common scenario for exploitation; maintaining eligibility for all government benefits – e.g., knowing the landscape where Veteran’s and Medicaid benefits overlap; and, fortunately one of the recommendations in the report was to establish mandatory reporting laws, which Colorado now has on the books.

Here’s a link to a recent article that cites to a major study of financial abuse. A few items worth noting from this include–

  • Bills are left unpaid and notices of eviction or discontinued utilities arrive.
  • Unexplained withdrawals from bank accounts or transfers between accounts.
  • Bank statements stop coming.
  • Care is not commensurate with the size of the estate.
  • Belongings or property goes missing.
  • Suspicious signatures appear on checks or other documents.
  • The elder or the caregiver gives implausible explanations about financial matters.

Other behaviors that are sometimes apparent in an exploiter’s behavior relative to an elder include when a new caregiver, friend, or relative distances the elder from their support system, to isolate the elder. Another scenario is where the agent convinces the principal, sometimes the agent him- or herself, and anyone else who will listen, that agent is the only one who is “looking out for” or “taking care of” the principal.  This can involve alienation of the elder principal from friends and other resources who could come to principal’s aid.  I think some of these behaviors are akin to those in the domestic violence context. Scary!

What are the options for action after sufficient evidence of abuse of the agent’s authority is uncovered?

  • Report suspected criminal activity or abuse to law enforcement authorities (keep in mind that these instances of abuse are underreported, according to law enforcement authorities)
  • Contact county adult protective services or care facility ombudsman
  • Take steps to protect and minimize continuation of damage
  • Take steps to repair exploited elder’s damaged sense of self

One of the major factors in underreporting is the shame associated with being taken advantage of by a close family member.  For further reading, here’s an interesting post from the American Banking Journal entitled “Elder Financial Exploitation Compliance Issue Matures.

Finally, there are important ways that an elder law attorney can help with assessing a situation, referring to authorities where appropriate, and taking steps to stop the continuation of the financial abuse and toward remedying the situation.  The principal-agent relationship is defined by the Colorado Probate Code in the Uniform Power of Attorney Act.  The agent is a fiduciary on behalf of the principal, which means that the agent’s ability to act on the principal’s behalf means the agent is held to a higher standard of care, to act for the principal’s benefit, and with reasonable care, among other duties.  The fiduciary duty of an agent owed to a principal is just one kind of a number of fiduciary relationships.

Agents are generally prohibit from “self-dealing” or giving the principal’s assets to themselves.  Sometimes this self-dealing is due to the agent’s ignorance of their legal duties as agent or otherwise the mistakes are inadvertent or due to sloppy bookkeeping.  In other contexts, the agent can get a bit too comfortable with using the principal’s money as their own and the actions are intentional, to steal from the principal or otherwise improperly benefit the agent.  In both of these scenarios, proceedings can be brought in probate court to review an agent’s actions.

The probate court is a court of equity, which means they will generally look at surrounding circumstances – not just the technical compliance issues.  Judicial review and relief are available in the probate court, and because the Colorado Probate Code allows for a single proceeding for related matters involving a principal and an agent, this can considerably streamline a strategy to recover money misused or misappropriated by an agent, including the return of personal property.  Actions for accounting, fraudulent misrepresentation, undue influence and theft (I’ll be writing more about a 2014 Colorado senate bill that distinguishes further the crime of “use of influence to take advantage” of individuals aged seventy and older) can also be brought against the agent.  It’s important to distinguish here that an older person can still have capacity to manage their own affairs, but that surrounding circumstances can make the person vulnerable.  Besides monetary relief and return of property, a court can impose a constructive trust to benefit the exploited elder principal and other measures. In short, there are many useful tools that a privately retained elder law attorney can use to remedy a bad situation with a misbehaving agent under a POA.

Hurray – this is my 101st post on my DenverElderLaw blog!

©Barbara Cashman  2014   www.DenverElderLaw.org

Personal Property in Estate Proceedings

Ancient Arches

Ancient Arches

Many people have heard about the “small estate affidavit” but in fact it’s not an estate at all.  It’s an affidavit that can be completed by a successor of the decedent in order to collect probate assets which do not exceed $64,000.  (This is the 2014 year of death amount.)  A successor can be a surviving spouse, a child or other family member, and also a personal representative named in a will. Besides the limitations on the amount which can be collected using an affidavit, it cannot be used if there is real property involved.  The Colorado State Judicial website has the form and instructions here.  You can’t use an affidavit and also have an open probate for a decedent.  The Colorado probate code sections applicable to the affidavit are found at Colo. Rev. Stat. 15-12-1201 and 1202.  An affidavit can be used to simplify the collection of probate assets, or those assets titled solely in the name of the decedent.  Ten days must pass before the affidavit can be signed.  There are good public policy reasons for this waiting period.  The time period for an application for informal probate with a will, however, is only five days after the decedent’s death.

Okay, I mentioned “probate” property . . .  what’s the difference between probate and nonprobate property?  In a nutshell, nonprobate property passes automatically to a survivor by the way the asset is titled (as in joint tenancy) or if it is an asset that has a beneficiary designation.  Probate property, very broadly, is property that was held by the decedent that didn’t pass to a survivor via nonprobate means (or those means failed) or was titled solely in the decedent’s name.  There are many assets now that are commonly held that are nonprobate assets like IRA accounts, real property held in joint tenancy, and so on.  The lines that distinguish between probate and nonprobate property or assets can change or be modified by the asset’s owner – either by action or inaction.  When people come in to talk to me about estate planning and we draft a will, it is after a process of identifying assets and categorizing them as probate (which typically pass via a will) or nonprobate.

So back to the affidavit . . . the person making the affidavit, known as an affiant, is treated much like a personal representative in their presentation of the affidavit to third parties.  The personal representative is the person who is in charge of administering a decedent’s probate estate.  The challenge here is that the statutory language is silent on how someone goes about recovering property that was improperly distributed by an affiant.

Sometimes it is best, given all the circumstances at play, that an estate not be opened for a decedent.  The affidavit to collect assets can be very helpful in this regard.  But remember that the Colorado DMV prefers that you use their form available here and not the one in the state judicial website if a car is involved in these circumstances.

So, what about your personal property,- your stuff – in the probate context when there is a will and an estate opened? Colorado law, like that of many other states, provides something called a “memorandum disposition of tangible personal property.”  Okay, so what’s the difference between tangible and intangible personal property?  When you think tangible, think stuff – like china cabinet contents, mementos that hold emotional value (many people tend to fixate on the financial value of the item.  Intangibles are things like digital assets, and those are a bit more complicated.  The nice thing about the memorandum disposition is that is a document that can be easily changed and updated and can be incorporated by a person’s will be reference to it.  This allows for flexibility in deciding to whom your personal property will be given as what you have, get rid of, and acquire changes over time.

In addition to the memorandum disposition, there are creative ways in a will to divide up personal property.  Personal property can of course be mentioned specifically in a will as a devise of a particular thing to a particular person, and it can be given as a gift to a class of people like children or grandchildren, and there are many other ways of dividing the property if a division isn’t made prior to the person’s death.  These could include a private or a family auction, depending on the nature of the property and considering the emotional value of the items in relation to the financial value.  Many people writing an estate plan focus on the financial value of  the property when it is more often the emotional value that is most dear to the surviving loved ones.  Just another reason for a person to share the stories that go with those mementos, so that the stories get handed down along with the particular item.

Making plans for the disposition of your personal property can make a personal representative’s and your surviving family members lives much easier.  Don’t forget to include those plans as part of a comprehensive estate plan.

©Barbara Cashman  2014   www.DenverElderLaw.org