Monthly Archives: June 2014

Elderhood as a Life Stage: The Power of Naming (part 2)

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Roses of a Certain Name

Roses of a Certain Name

Where is this place – old age?  In the first post I looked at the power of naming and how we often use and misuse it in the context of challenges presented by aging.  Here in the second post I will explore the individual and collective means of naming in the context of old age, vulnerability,  elder abuse and other kinds of naming and identity. Did I mention there will be a part three?

One of the losses many elders face is a loss of place, of the previously recognized or accustomed stature and home  – at least in the generally recognized sense of the term (if there even is such a thing).  I have blogged about Eric Erikson’s stages of the life cycle (psychosocial) development and his wife and collaborator Joan Erikson’s addition of the ninth stage when it became apparent that the eighth stage didn’t really cover the breadth of longevity in the context of all the physical challenges and responses to those that an old (80’s-90’s) person and body often faces.  I find it interesting that the ninth stage also denotes a shift in the trust/mistrust pole, where a physically and socially vulnerable elder can come to mistrust their own abilities and capabilities as well as those of the environment in which the elder finds him or herself.

So, instead of asking oneself “what do I want to be when I grow up?” a related question may still be forward-looking – as distinguished from backward-looking, but it involves our continued functioning and capacity.

            •           – Which parts of our selves (including our bodies) and our relationships still work and which don’t?
            •           – What awareness do we have or are capable of having over these losses or compromises?
            •           – Well, what if old age is simply too depressing?

A recent article in The Times of India referred to efforts  by HelpAge, an Indian nongovernmental agency, to identify abuse of the elderly in that country, noting that when the study commenced ten years ago, even elders living with families were very lonely and sad.

So where do we as individuals look for guidance to navigate the terrain of Elderhood?

How do we chart the course collectively and collaboratively as a culture and within the bounds of our legal system?  Well, it depends of course.

I think a big part of it concerns how we address these questions involves our perspective on them  Do we look at elderhood  as a window or elderhood as a mirror?

I will note that the either or setup above might just as easily be a “both and” lineup.

The Mirror.  What is the story we already know of ourselves as we approach that officially recognized age of retirement, 65?  Can we manage to arrive at or transport ourselves to Erikson’s eighth stage which begins at 65?  BTW, the eighth stage – the virtue of which is wisdom, represents in Erikson’s “psycho-social crisis” category that of ego integrity versus despair, the significant relationship here is “mankind, my kind” and the existential question for this stage is “is it okay to have been me?”  But I would ask, do we really need to wait that long to get to “wisdom?”  What of those of us who might be stuck in some continuous loop of an earlier stage – maybe the “intimacy versus isolation” stage. . . .

There is also the question of regret, depression and other negative emotions can have on that backward glance at our lives.  But what of those who are still looking forward – perhaps in recognition of Kierkegaard’s observation that while life can only be understood backwards, it must be lived forwards?

The Window.  One of the hallmarks of Erikson’s ninth stage – whether it is an extension or an additional category, is a term which Joan Erikson has provided: gerotranscendence – you can read more about it in this article from the Journal of Aging Studies.

Geotranscendance (yes, I’m spelling it with “dance” on the end, it’s been done before!) is about building on that strength of wisdom from the eighth stage and looking forward and beyond oneself, hence the transcendence.  I thought of the tee-shirt I’ve seen a few times: “old age is not for sissies” when I was reading about Joan Erikson’s description in the ninth state of the daily dystonic element of despair.  Perhaps this means of transcendence is in this respect a means of survival, of going beyond the despair and dis-integration, to look beyond the self for broader meaning.  Maybe I’m straying off-topic. . . .

So how do the eighth and ninth stages factor into the socially-acceptable and praiseworthy paternalism of mandatory reporting statute regarding elder abuse?  Well, I’m afraid they go back to that death denial and youth glorification temple that is such a fixture in our daily modern life.  When we look in the mirror – who is it that we see?  When we look at elders, who is it that we see?  What is our relationship to the world and how do we make sense of it?  First, we give it a name.

Every Judgment is a naming, and every judgment is (or more precisely, potentially is) a name, can become a name.

                                                        Sergius Bulgakov

More about naming and unnaming in the mirror and through the window in my next installment. . . .

 ©Barbara Cashman  2014   www.DenverElderLaw.org

 

Inherited IRAs in light of last week’s US Supreme Court decision (Clark v. Rameker)

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Ralph Carr Justice Center Colorado Supreme Court Courtroom

Ralph Carr Justice Center Colorado Supreme Court Courtroom

Everyone knows what an IRA is – right?  We think IRAs have been around a really long time, but they only came into being in 1975 with ERISA legislation, and Roth IRAs came in 1997.  IRAs are classic nonprobate property that someone can pass to others without probate in many circumstances.

Q: What happens if I complete the beneficiary designation form?

A: Your beneficiaries will have much more flexibility and protections (especially on the tax front).

Q: What happens if I don’t bother with the beneficiary form?

A: Well, you won’t be around to find out – right?!  Here’s a link to a Colorado Business Magazine article about the importance of designating a beneficiary to maintain that flexibility.

Some handy IRA vocabulary words:

  • RBD – required beginning date (701/2 years of age), after which you are required to withdraw the
  • RMD – required minimum distribution, an annual distribution.

Here it is important to consider whether the decedent died after his or her RBD.  If she or he was already receiving RMDs, you will want to determine whether the distribution for that final year needs to be paid. Be sure to check with the account custodians to determine if the distribution was made before the date of death.  There are two basic types of IRAs that can be passed along to survivors:

Spousal IRA

This is generally the simplest to accomplish and a spouse will want to consider among several choices –  to roll them over into an IRA, start receiving benefits, have them paid out in a lump sum, or disclaim some portion to minimize estate taxes in the spouse’s estate.

Inherited IRA

There is an important distinction initially regarding whether the beneficiary designation was made out to the beneficiaries or left blank. . .  There is generally much more flexibility when the designations are completed.

So here’s a question . . . . Whether inherited IRAs are generally exempt from creditors depends on where you live! Are these funds still qualified and exempt, or are they just another inherited asset?

In an inherited IRA scenario, a beneficiary (often an adult child) will need to take out the RMD in the parent’s IRA every year and declare that as income.  In addition, the IRA cannot be added to by the inheritor.  You might be wondering what types of protections are afforded inherited IRAs from the creditors of the inheritor.  Well, I can say with all lawyerlike confidence . . .  it depends.  Under Colorado law, specifically Colo.Rev.Stat. §13-54-102(1)(s) there is an exemption from judgment creditors for certain types of retirement accounts and benefits.  The definition includes IRAs “as defined under Section 408 of the Code” (this would be 26 U.S.C. §408(d)(3)(C)(ii).  Under the Bankruptcy Abuse Preventive and Consumer Protection Act of 2005 (BAPCA), many states opted out of the federal bankruptcy exemptions in favor of state law exemptions.   Read more on this topic here from my learned colleague Laurie Hunter.

It is important to consider that there are at least three different layers to the inherited IRA treatment: federal tax law, state law relating to bankruptcy and what creditors can collect, and bankruptcy.  Until just a few days ago, when the U.S. Supreme Court ruled on a writ of certiorari on the U.S. Court of Appeals for the Seventh Circuit’s 2013 decision, In re Clark, there was a split among the federal circuit courts of appeal – you can read more about it here.

 The Federal Circuit Courts of Appeal Were Split Over the Meaning of the Phrase “Retirement Funds”

Two federal courts of appeal – the Fifth and Seventh Circuits (whose decisions were binding in the regions that they cover – Colorado is part of the Tenth Circuit) had come to opposite conclusions, while interpreting the meaning of the same term. In 2013, the Fifth Circuit decided that the phrase “retirement funds” in the bankruptcy exemption statute quoted above means any funds “set apart” in anticipation of “withdrawal from office, active service, or business” and that the statute does not limit “retirement funds” solely to funds of the bankrupt debtor, so long as the funds were originally “set apart” for someone’s retirement. In re Chilton, 674 F.3d 486 (5th Cir. 2012). Once the funds were set apart for retirement, they maintained that same character for bankruptcy exemption purposes. The court thereby permitted the debtor in Chilton to exempt all of a $170,000 IRA inherited from her mother.

In Clark, the Seventh Circuit expressly disagreed with the Fifth Circuit, adding that it “do[es] not think the question is close.” The Seventh Circuit observed that, while inherited IRAs do shelter money from taxes until it is withdrawn, they lack many of the other attributes of an IRA. That court noted in particular that the beneficiary of an Inherited IRA is prohibited from rolling those funds over into his or her own IRA and from adding her own funds to the Inherited IRA. The beneficiary must take distributions from the Inherited IRA within a year of the original owner’s death and complete those payouts over a defined period, often as little as five years, whatever the beneficiary’s age and whatever her employment status. In short, once the original owned died, “the money in the [I]nherited IRA did not represent anyone’s retirement funds.”   That court of appeals declined to extend the character of a decedent’s retirement funds into the inheritance context and therefore decedent’s daughter could not then use that money as her own retirement savings, and it became no different from an inherited certificate of deposit or money market account: non-exempt and available to distribute to the daughter’s creditors.  That was the essence of the split in the circuits.

 Just a few days ago, the Supreme Court ruled unanimously in Clark v. Rameker that inherited IRAs are not protected in bankruptcy.  Here’s a link to the SCOTUS blog coverage of the decision.  The USSC followed the line of reasoning of the bankruptcy court and of the Seventh Circuit, disallowing the attempt by petitioner in bankruptcy court, Hedi Heffron-Clark, to exclude the funds in the IRA from the bankruptcy estate using the “retirement funds” exemption under Section 522 of the Bankruptcy Code, which exempts tax-exempt retirement funds from a bankruptcy estate. Just in case you are an insomniac and want to read the entire decision, rendered June 12, 2014, here it is in pdf format.

I still think that, notwithstanding the USSC’s ruling, inherited IRAs are  an important legacy for a parent to leave an adult child, and it is important to not underestimate the “emotional” value of the money from a deceased parent’s retirement savings for the use of a child’s retirement.  But beware, they won’t be protected from an adult child’s creditors in a bankruptcy proceeding.  So please remember that an IRA and an inherited IRA are not really the same animal!

 ©Barbara Cashman  2014   www.DenverElderLaw.org

 

Elderhood as a Life Stage: The Power of Naming (part I)

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My Mom, the Nurse Cadet

My Mom, the Nurse Cadet

 

In this first post I look at the power of naming and how we often use and misuse it in the context of challenges presented by aging.  In the second post I will explore a collective means of naming in the context of elder abuse and reporting of it as a kind of naming and identity.

Ageism, like all forms of discrimination, limits the respect and dignity afforded to a group of people and likewise, reflectively, diminishes the same qualities on those persons who are projecting those judgments and limitations onto others.

With great power comes great responsibility.

Voltaire (1694-1778), Spiderman (2002)

Each of us has the power to understand, see, respond to, have compassion for, and be with another person.  The problem is many of us don’t often see it as a “power.”  Sometimes we view compassion as a weakness!  If we think of it – that power – as a way of acting, we often see it in the context of “power over” in the social hierarchical and “currency” context of our interaction, like when someone asks themselves before responding to a person before them “how important is this person to me, to my agenda?”  Another kind of power is the power with others, which can be as simple as a small family unit or a work group agreeing on the desirability of getting a common problem solved or a challenge effectively managed in a way that will work for everyone.   This is where the naming comes in (I know you were starting to wonder)….

Dacher Keltner of UC Berkeley lists one definition of compassion as

the feeling that arises when you are confronted with another’s suffering and feel motivated to relieve that suffering.

We often focus on compassion as including only suffering, but I would submit that compassion also properly includes compassionate joy, the ability to feel and share another’s happiness and joy.  The Buddhists call this “sympathetic joy.”

The power of naming, which contains the secret of our relationship to our world, is not something most of us take the time to ponder.  One of the advantages of conscious Elderhood or second-half-of-life thinking, is that we can take a bigger picture view which doesn’t threaten our position in life.  Still, elderhood presents many challenges for all of us, and it is not always an easy transition from the earliest part of our lives, even if we derive meaning from those three sources identified by Viktor Frankl in Man’s Search for Meaning: purposeful work, love, and courage in the face of difficulty.  I have referred to Richard Rohr’s book in previous posts, but Falling Upward is worth mentioning again in his approach that the loss of certain things as a gain of others.

Old age –  how we look at these things, who is the problem, what is the problem, whose problem is it, how will the problem be solved or remain unsolved, whether we consider ourselves part of the problem or part of the solution. . .   I think it is safe to say that people aren’t fond of thinking more than is necessary, and that we prefer simple words that are easy to pronounce and understand.

Often we find that as soon as a concept is labeled, it changes how people perceive it.  This is consistent with the linguistic version of the Heisenberg effect of the perceiver on the perceived and vice versa.  This is the outward-looking part of the naming.

Naming and unnaming in the context of Elderhood is in part concerned with the losses sustained as one ages, and invariably many of us focus on those exclusively, ignoring the positive and liberating effects of entering into the second half of life (for those of us embracing that stage), a time of meaning, when we realize that all of our life is our life’s path.  In using our power to name – both ourselves and others, we can often misname and unnamed.  Let’s have a look at a couple examples.

How do we name the losses of aging?  Where do these losses take us?  Is it to a place of grief and mourning or is it to a place of understanding oneself as a person who will die one day, or more likely, a mix of the two.  There are many losses in old age, and many opportunities for grieving.  Do we take the opportunity to grieve and move on, to open to new life or do we hold on to what was and will never be again?

How do we misname the challenging aspects?  Where many people suffer from a chronic disease – such as Parkinson’s or diabetes, the answer to “who am I?” can often change so that a person becomes an embodiment of a disease.  I think nearly all of us bristle at such a prospect or practice.

Stay tuned, in my next installment I’ll explore how we often unname an elder or some other person with dementia.

 ©Barbara Cashman 2013     www.DenverElderLaw.org

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

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Wyoming Cowgirls circa 1943

Wyoming Cowgirls circa 1943

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

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

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

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

 

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

Jefferson County District Court

 

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

 

 

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

 

 

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

Jennifer Clark

Joan Stein

District Attorney’s Office

Elder Abuse Unit

 

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

District Attorney’s Office

 

And the second session features:

 

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

Jennifer Ballentine, MA

 

 

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

Jefferson County Public Administrator

 

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

Ayo Labode, Esq.

 

 

 Fighting Back Against Identity Theft Cary S. Johnson

Director: Crime Prevention

District Attorney’s Office

 

 

 Later Life Relationships Christine J. Law, Esq.

Julia Griffith McVey, Esq

 

And the third session:

 

 Medicare Update William B. Kistler, EMBA

 

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

 

 

 Prevention of Fraud and Scams Jessica Beren

Detective

Westminster Police Department

 

 Social Security Dawn R. Hewitt, Esq.

 

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

 

 Lifelong Learning and the Aging Brain Zane Robertson

 

 End of Life Planning Catherine A. Silburn, Esq.

 

 Medicaid Update Claire E. Dineen, Esq.

Kathleen A. Negri, Esq

 

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