Denver Senior Law Day is Tomorrow!

Venetian Shop Window

Yep, Denver’s Senior Law Day is Saturday, July 29, 2017 at the PPA Event Center, 2105 Decatur Street, Denver, CO 80211.  You can register by emailing SLD@DenverProbateLaw.com or by calling 303.757.4342.  The cost is $10 and you get to hear the speakers, eat snacks and take home a copy of the 2017 Senior Law Handbook!

The opening presentation starts at 8:15 a.m., and features Maro Casparian, Director of Consumer Protection at the Denver District Attorney’s office, as well as other attorneys who will present on a number of elder law and independent living topics.

I will be co-presenting with my esteemed colleague M. Carl Glatstein from 11:15 a.m. – 12:00 on the topic of Advance Directives, the End of Life Options Act and Guardianship.  That’s quite the trifecta if you ask me! In particular I will be speaking about the End of Life Options (EoLOA) Act and will also have a bit to say about how the new law meshes with advance directives (like medical powers of attorney and living wills) as well as guardianship proceedings.

That’s all for this post!

When the Decedent Was a Hoarder

Tightrope

What is hoarding? I like this simple definition from the Anxiety and Depression Association of America.

Hoarding is the persistent difficulty discarding or parting with possessions, regardless of their actual value. The behavior usually has deleterious effects—emotional, physical, social, financial, and even legal—for a hoarder and family members.

Hoarding is “officially” a disorder, meaning it was reclassified as such in the Diagnostic and Statistical Manual (DSM-5) in 2013.  Prior to its recent “promotion” to a disorder, it was considered an aspect of obsessive-compulsive disorder, so many folks who suffer from OCD (or OCPD) are also hoarders. Hoarding has also been linked to attention-deficit/hyperactivity disorder (ADHD) and depression. Sometimes hoarding may be associated with an eating disorder like pica (eating non-food materials), Prader-Willi syndrome (a genetic disorder), psychosis, or dementia.

Hoarding for elders can be indicative of depression and/or anxiety and for those elders who may have been “pack rats” in younger years, the compulsive habit can worsen in later life.  Here’s a link to a University of California at San Francisco study that looks at elders’ hoarding as a health concern.  That study concludes that hoarding in elders often seems to worsen and becomes more problematic, but for reasons that remain unclear.

How does hoarding impact one’s life? There seems to be, to a certain extent, an inverse relationship of stuff hoarded to quality of life. The more stuff clutters a home, the unhealthier and more dangerous can be the living conditions. Shame, fear of judgment, distrust of others being allowed in to the hoarder’s living space can contribute to the hoarder’s sense of isolation.

It seems straightforward that an elder who has a dwelling place crammed full of junk is much less likely to allow caregivers into the home or others who might able to otherwise assist an elder with managing the challenges of independent living.

What can be done to help a hoarder while they are still alive?  The answer to that depends on the type of hoarding behavior as the intervention must be tailored to it.  And yes, in case you’re wondering, there is a Hoarders Anonymous, but my antivirus software won’t let me visit their website. . ..

So, this post is about hoarding in the estate context – what does that mean?

It means that the job of identifying the decedent’s assets can be difficult, at best.  Finding relevant information can be extremely challenging or impossible due to the sheer volume of papers collected by the deceased hoarder.  Many years ago, I represented the personal representative of an estate of someone who was a hoarder.  The decedent had died in a skilled nursing facility, but inside her home remained dozens of filing cabinets as well as many boxes of papers.  When I informed the personal representative about some documentation I would need, she informed me that she was fairly certain that the papers I needed were kept in the home, but it would take several weeks to go through those storage places to try and locate them.

What if the deceased was an “organized” hoarder and kept only certain types of items?

Well, that might not be so bad, but I haven’t seen that one yet.  In my experience, there are few “selective” hoarders.  I think that has to do with the fine line between collecting and hoarding!

And if the deceased was an indiscriminate or disorganized hoarder? Well, I don’t think there’s a patron saint of the chronically disorganized who happen to be hoarders – but maybe there should be.  You might recall that Dante’s Inferno, in the fourth circle (of hell) to be precise, identifies the twin opposite behaviors of those hoarders and wasters (or prodigals).  That circle is all about greed as the Fourth Circle of Hell is guarded by Pluto, the Greco-Roman god of wealth:

Here, too, I saw a nation of lost souls,
far more than were above: they strained their chests
against enormous weights, and with mad howls
rolled them at one another. Then in haste
they rolled them back, one party shouting out:
“Why do you hoard?” and the other: “Why do you waste?”

Canto VII, lines 25–30, Ciardi translation.

So, it is apparent that the proliferation of stuff and its unceasing accumulation has obvious negative effects on one’s relationships with others and the outside world in general, but. . .

What can we do about detecting the causes of hoarding and helping a hoarder?

It’s a fine line indeed between “collecting” and “hoarding.”  That Depression-era mindset of scarcity, coupled with distrust (anxiety) about the future – the origin of one’s next meal, etc., can contribute mightily to a worsening of an already latent propensity to collect.  Here’s an article about that topic.

And if you think there isn’t an opposite extreme that people can engage in (see Dante’s reference to the “wasters” above), here’s an article about compulsive decluttering.  The root of the problem may be the link between either type of activity and its origin with obsessive thoughts.

In short, there are ways to help a hoarder – and in particular to avoid making the person (not their affliction) a spectacle of ridicule.  If this sounds like self-interest for the family members of a hoarder, as in those persons who will be responsible for going through the hoarder’s possessions – well it certainly is in their interest to help!

© 2017 Barbara Cashman  www.DenverElderLaw.org

Capacity and Incapacity in Context

Maigue Swan

 

Capacity is not some dusty old legal concept! In this post I revisit some implications encroaching incapacity or. . .  the “dark side” of our longevity.

The issue of capacity basically concerns judgement – the ability to reflect on and consider decisions required for daily living.  When one lacks that capacity (or is deprived of it) the validity of some actions taken or decisions made – which have legal implications – can be called into question.  This capacity discussion is likely to become more commonplace as more baby boomers move into retirement years and greater longevity…

Here’s a definition of capacity referring to Black’s Law Dictionary:

Legal capacity is the attribute of a person who can acquire new rights, or transfer rights, or assume duties, according to the mere dictates of his own will, as manifested in juristic acts, without any restraint or hindrance arising from his status or legal condition. Ability; qualification; legal power or right. Applied in this sense to the attribute of persons (natural or artificial) growing out of their status or juristic condition, which enables them to perform civil acts; as capacity to hold lands, capacity to devise, etc.

Capacity includes the ability to behave rationally and exercise one’s own judgment (for better or worse).  Certain matters which typically adversely impact one’s otherwise presumably intact capacity include: mental disorder, developmental disability, intoxication, injury affecting one’s cognitive abilities, or the course of a disease process.

Reference to judgement capacity (or the ability to process information) is a legal notion often coupled with or inclusive of a functional (objective) capacity assessment.  This is because so many of our human “doings” can require distinguishing (as our law does) between when we can manage and when we can’t.  The term “capacity” by nature refers to an ability.  I won’t go into any discussion about the nuances and historical underpinnings in the law relating to capacity as distinguished from competence.  If you want to read further on that topic, check out this entry from the Stanford Encyclopedia of Philosophy on decision-making capacity.

So – how do we move from being presumed to have capacity to being legally incapacitated?

Where an adult has diminished or diminishing capacity, the law makes reference here to the “least restrictive means,” a concept borrowed from disability law.  For Colorado adults who are determined by a court to be incapacitated, there is a finding by the court that “the ward is an incapacitated person and the ward’s needs cannot be met by less restrictive means, including the use of appropriate and reasonably available technological assistance.”  See JDF 848, Order Appointing Guardian for Adult.

Because my practice focuses on elder law and probate, most of the petitioners whom I represent file petitions for guardianship (or conservatorship) concerning elders who have “slipped” in their capacities to manage for themselves, meaning the individual no longer has sufficient capacity to manage their affairs or make important decisions on their own.  Many of these elders are at risk of financial exploitation as a result.  I have also represented petitioners who are often parents of developmentally disabled young adults.  The distinctions among them, as for elders, are varied and numerous.  Suffice it to say that sometimes, for younger adults, it may be easier to establish grounds for a limited – as distinguished from the much more commonplace unlimited guardianship.  In the former there can be specific references to supports to help facilitate an adult’s capacity(ies).  Unfortunately, limited guardianships remain rare birds for a number of different reasons.

  Capacity in Daily Living

To bring this discussion back to the practical level, I not that one’s capacity to “live independently” or perform the activities of daily living (ADLs) are often part of the incapacity picture as well, but this is generally due to a concern for an elder’s self-neglect.  With regard to an elder who is named as a respondent in a petition for guardianship, the elder’s physical capacity or incapacity is generally irrelevant in determining incapacity unless it substantially affects his or her ability to make or communicate important decisions regarding his or her person, family, property, or results in self-neglect.  Physical impairments alone are often of limited import in the guardianship context, as evidenced by reference in Colorado law assistive devices and technologies and the preference for least restrictive means, but in making the determination of incapacity, reference is made (as stated above in JDF 848)  to those assistive technologies.

Another context for elders and capacity which is receiving more attention is the issue of consent for sexual relations.  I would imagine that the free-loving baby boomers will test their adult children’s tolerance and demand that more attention be paid to this aspect of living in a communal or institutionalized setting. Read a recent study about the generation gap in attitudes and practices of extramarital sex here.  A couple years back I wrote a blogpost on this topic and also about a husband in Iowa who was prosecuted for allegedly sexually abusing his demented wife.

Suffice it to say that this debate is ongoing, particularly as more institutions look to provide more person-centered care for residents who still enjoy physical intimacy.  Some of these folks have dementia or other cognitive impairments which can affect their ability to consent.  Do not underestimate the “eeewww” factor of many of these folks’ adult children who would rather not be informed of mom’s recently contracted STD or consider that an elder parent is sexually active!

We must remember, even when an adult is determined to be incapacitated for purposes of imposing a guardianship, what can still remain intact is that person’s capacity to express a preference as to the person who will serve as guardian.  In In re Estate of Runyon, 343 p.3d 1072, 1077 (Colo.App.Div.4 2014), the court held that

a finding that the respondent is an “incapacitated person” within the terms of the statute does not necessarily mean that the respondent lacks sufficient capacity to express a preference as to a guardian or conservator.   Neither the definition of incapacitated person nor the criteria for appointment of a conservator automatically exclude the ability to make a rational choice as to the selection of a guardian or conservator. Therefore, an incapacitated person may “still be able to express an intelligent view as to his choice of guardian, which view is entitled to consideration by the court. (Citations omitted)

That’s all for now and thanks for reading!

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Capacity and Incapacity Considered

Swirling

As a growing portion of our population continues to age, we are more frequently forced to confront the question of capacity.

What is capacity and why should we care? 

As we continue to enjoy unprecedented longevity, we face greater likelihood of incapacity in our future.  Sometimes this incapacity is short-lived or temporary but for many of us, particularly for elders, it can become an issue that plays out over time and can result in a permanent incapacity.  There are very few “bright lines” to define what is capacity and what constitutes incapacity generally, but there are many useful contextual and functional definitions of capacity to assist us in this effort.

I believe that the more we can learn about how these capacities and incapacities present themselves in the context of our daily lives, the better equipped we can become to help detect and prevent elder exploitation and abuse.  This post is about three particular types of capacity along the capacity continuum.  I use the term “continuum” because it is easy for many of us to think (or rather, wish to believe) that this capacity question is relatively straightforward.  It is not!  Like so many other aspects of human doing and human being, it can get quite complicated.

I’ll look at three familiar types of capacity here to put the question in context.

  1. Capacity to Make Medical Decisions

These medical Informed consent issues can include a range of capacities relating to what a patient is being asked to do – there is a range from the “mundane” question of whether the patient give informed consent to medical treatment or to decline such treatment; if the patient wishes to name a health care agent to make decisions for them in the event of their incapacity; and what about the capacity to make end-of-life wishes known with a living will?  Here the functional elements of these capacities can be broken down into four basic parts:

(a) To express a choice: The standard of expressing a choice refers to patients who are seen to lack capacity because they cannot communicate a treatment choice, or vacillate to such an extent in their choice that it is seen to reflect a decisional impairment;

(b) To exhibit understanding: The standard of understanding refers to the ability to comprehend diagnostic and treatment related information and has been recognized in many states as fundamental to capacity.

(c) To appreciate the implications of a particular choice or course of treatment. This aspect capacity has been described as the ability to relate treatment information to one’s personal situation. The standard of appreciation can reflect the patient’s ability to anticipate or infer the possible benefits of treatment, as well as to accept or believe a diagnosis.

(d) To rationally process information. This reasoning aspect of capacity involves the ability to recognize and offer rational explanations or to process information in a logically or rationally consistent manner.

Each of these aspects of medical capacity are interwoven into the ongoing conversation of one’s medical treatment and are of course highly subjective in many ways due to the individual patient’s own preferences or style of communication.

  1. Capacity to Drive an Automobile

This one is big for us Americans who don’t have so many public transportation options! The ability to drive is often one of the last things to go because it can in some ways restrict an elder’s ability to go places on their own schedule.  The AARP has an online defensive driving course and AAA has resources for getting evaluations of one’s driving skills as well as clinical assessments, but the “official” Colorado program is the Drive Smart program – click here for more information about it.  Under Colorado law, doctors (and optometrists) can provide medical opinions to the DMV concerning a patient’s medical condition and the patient’s physical or mental ability to safely operate a vehicle.  For more information about when an examination is required, here’s a link to a power point about it from the Colorado Coalition for Elder Rights and Abuse Prevention.

  1. Capacity to Make a Will

As an estate planning and elder law attorney, I meet with prospective clients and must make capacity determinations as a matter of course.  The ABA has a handy guide for lawyers and psychologists concerning assessment of a person’s capacity.  It is available here.  In order for an attorney to represent a client, an attorney must first establish that the potential client has the capacity to hire the attorney as well as direct the activities of the attorney.  We have a special rule of professional conduct which applies to clients with diminished capacity.

Historically, this testamentary capacity is at the lowest level along the capacity continuum.  In Colorado, the law is a bit less clear since the Breeden case, but  many states still recognize testamentary capacity as a separate and special category.  The Colorado probate code allows for a protected person (a person under a conservatorship) to make a will through the conservator. See Colo. Rev. Stat. §15-14-411.

One of the aspects of this low level of capacity required to exercise our testamentary freedom is that a will can be subject to challenge under some circumstances.  The person’s ability to make a will, or their testamentary capacity, can be the subject of a lawsuit known as a will contest.  Challenges to testamentary capacity often revolve around “undue influence,” in which a person challenges the will (and sometimes nontestamentary transfers as in the recent Colorado Appeals Court decision in Estate of Owens v. Dominguez).  Undue influence depends on many situational factors but generally can require a showing by the one challenging the will that: a person standing to benefit from the new will was in a confidential relationship with the testator (person making the will); that the person received a substantial benefit; from the testator who was suffering some mental, social or psychological impairment which compromised the testator’s mental capacity or independent thinking.

To conclude this post, if we think of capacity not just as a concept but as grounded in a particular context – as illustrated by the examination of capacity to perform a particular task, we can go much further in our examination of how much capacity is required and whether the requisite capacity is lacking.  From this contextual basis, we can then take a look at what type of assistance to “facilitate capacity” is appropriate and what kind of “assistance” is actually interference indicative of improper influence, exploitation or abuse.  I’ll write more on this topic this summer.

© Barbara E. Cashman 2017   www.DenverElderLaw.org