Heads-up everyone – President Trump signed the SECURE Act into law on December 20, 2019. Its effective date is . . . . tomorrow – January 1, 2020. So, what IS the SECURE Act and why are so many estate planning attorneys nervous, or insecure about its ramifications? First off, that friendly sounding but vague acronym stands for Setting Every Community Up for Retirement Enhancement Act. The Act was passed as part of the larger year-end spending package. What I’m looking at in particular are a couple big changes it will have on traditional IRAs and adult child or other non-spouse beneficiaries. So let’s have a look at the big picture.
Death of the Stretch IRA as We Have Known It
What exactly is “retirement enhancement” as envisioned by the Act? Well, it depends upon your perspective! What gets an estate planner’s nervous attention is a “small” provision with big repercussions. The soon-to-be obsolete longstanding IRS rules regarding inherited IRAs have traditionally allowed non-spouse beneficiaries of those inherited IRAs to take distributions over their lifetimes, which is a big deal if a beneficiary is motivated to spread out those distributions which must otherwise be declared as income. This was known as the “stretch IRA” – but all that changes in the SECURE Act. A Forbes magazine article on the House’s bill referred to it as a “hidden money grab.” Bottom line is that there are big tax dollars that the IRS will otherwise be collecting from the elimination of the old stretch rules. This means it will be time for many folks to rethink their strategies. Why?
What will be required now is that the most of those inherited (non-spousal) IRAs (where the named beneficiary is more than 10 years younger than the owner) – which many older adults were using to augment their adult children’s paltry options for their own retirement savings – can no longer be “stretched” over the child beneficiary’s lifetime but must be liquidated within 10 years of the IRA account owner’s death. Ouch! There are some limited exceptions to this of course… Here’s a link to the Congressional Research Service’s two-page memo about the House Bill, updated October 24, 2019. But it’s not all bad.
A Bit of Good News
You might also like to read MarketWatch’s article about the new law, as it discusses an upside to the SECURE Act, namely the removal of the age restriction (70 ½ years of age) after which a contributor could not add to their traditional IRA. Starting with the 2020 tax year, an IRA contributor can continue to make contributions – so that’s a bit of good news. Also of note is that the old required minimum distribution age – which was also 70 ½ – has been raised to 72.
Security Is Like Beauty, It’s In the Eye of the Beholder
I have previously blogged about the precarious nature of
what we Americans call “retirement
security” – I don’t think this SECURE Act will allow many of us to feel
more “secure” about the precarious state of retirement and planning for it.
Yep, it happens every year – when May rolls around or rather – bursts out of nowhere and then gets covered in snow briefly! Many elder law attorneys participate in workshops, radio programs, elder or senior law day presentations for the public. On April 16th, 2019, I presented a talk on elder law/estate and disability planning and participated in one-on-one meetings with folks at the Ask-a-Lawyer day event for the Third Judicial district in Trinidad, Colorado. Next month I will be speaking about the End of Life Options Act at the Adams County (Seventeenth Judicial district) Senior Law day on Saturday, June 8, 2019. Registration details are here.
In many ways, it’s never been a better time to be an elder in this country.
Notwithstanding the important detail that our life expectancy has dropped for the third year in a row. . . .
Say what? Yes, this is the first time since the Spanish Flu epidemic of 1918 that our life expectancy has dipped, now for the third year in a row. We are ranked #43 in the world for life expectancy! The information on the PBS News Hour’s page points out that while heart disease and cancer account for about 44% of deaths, the deaths from the opioid epidemic, coupled with ever-rising levels of suicide in our country. In Colorado, the suicide rate is high – we are ranked tenth in the nation according to 2017 CDC statistics. For many years, city dwellers had higher rates of suicide but this has changed in the last decade. There are more males than females who take their own lives and in rural areas where there is often greater poverty and more difficult access to mental health services there can also be easier access to firearms, the most lethal instrument of suicide.
Suicide by elders is not normal or to be expected and is often the result of depression
But what about elder suicide rates? These are disproportionately high and, with the baby boomers age-wave continuing, seem likely to increase. Based on this post from 2017, more than 70% of the elders (65+) who take their own lives do so by using a firearm. Loneliness, grief and social isolation can contribute mightily to an elder’s depression. Couple this with the fact that many of us have become accustomed to not becoming alarmed on hearing an elder’s statement “I just want to die” for any variety of reasons. This statement would cause red flags and alarm bells when uttered by younger persons. Many of us would simply agree, without asking any questions, that we wouldn’t want to live with what is often perceived by others as a lessened quality of life. But what if the cause of the depression was elder abuse?
The simple act of being present and listening can change things
Sometimes listening to another’s pain involves asking questions to clarify. Regardless of its “outcome,” the simple act of listening is a potent antidote to social isolation among elders. There are many resources available to elders who have been abused financially or exploited. Bloomberg’s calculation for 2018 puts elders’ loss of money to fraud at $36 billion annually. This type of loss can obviously contribute to an elder’s sense of shame and resulting isolation, so please, remember to ask questions if you note a change in an elder’s behavior – making assumptions can be deadly!
This is the third and final installment of my series on the dementia specific advance medical directive. This one is about the nuts and bolts of the contents of the dementia directive. And yes, it’s on the long side. . . .
Rule 1: Remember that simply filling out a form will not make your wishes magically known to the world and automatically enforced according to your intentions.
You have to tell people, like your health care agent,
the successor agent and maybe others as well – what you want. You can’t make them enforce the document if
you are cognitively compromised or incapacitated – this is why you must be
selective about whom you select to carry out your wishes.
If you want to go through with executing the
dementia directive, you must know that you need to have detailed discussions with
loved ones and decision-makers(like health care agents) so that you can clearly
communicate your wishes as well as answer questions about an agent’s and/or a
loved one’s ability or willingness to make such difficult decisions.
Don’t pretend you can take the easy way out on this downhill run – the simple act of filling out a form will not accomplish your goals. Over the years I have talked with more than a couple adult children who found or became aware of their deceased parent’s living will after the parent passed away. I think that people who wish to have an “aggressive” dementia directive followed must be prepared to ask that their health care agent go to court on their behalf to uphold its provisions. Why? The states which currently allow for medical aid in dying (including Colorado) do not have provisions which would extend to patients suffering from dementia (they must be a hospice patient) nor do they allow for a health care agent to obtain life ending medication on another’s behalf.
Question: Would an aggressive living will provision allow a health care agent’s direction that a care facility discontinue spoon feeding a person with advanced dementia be enforceable?
Answer: It depends or . . . I don’t know.
The doctor-authored forms highlight the importance of giving a copy of the directive to your loved ones and your doctor, but keep in mind that your doctor is not going to be the person responsible for enforcing the provisions of your dementia directive. That is the job of your health care agent, so this is why it is of paramount importance to choose the right person for this important job and make sure you have answered questions about how the person is to perform that job. Keep in mind that a number of physicians I have spoken with over the years feel that only a “fresh” advanced directive is worth following and the dementia directive – due to the typical years-long cognitive decline and long period of a patient lacking decisional capacity – could make for complications with medical practice.
Rule 2: Provide just enough details, but not too
“Dementia” is a broad condition or disease where
mental ability declines and is severe enough to interfere with an individual’s
ability to perform everyday tasks, including managing finances (often evident
in early to mid-stage dementia) and providing informed consent to medical
treatment. Dementia includes dementia as a disease process
and its related disabilities, Alzheimer’s disease, mixed dementia, Lewy body dementia, vascular dementia, frontotemporal dementia, as well as other types of dementia and can include a “behavioral” expression
This link contains Dr. Barak Gaster’s Dementia Directive form. That form goes into quite a bit of detail about quality of life issues related to self-determination along a continuum from mild to moderate to severe dementia. From my perspective and experience, I like the detail the directive provides but the details could also create ambiguity and potentially produce guilt on the part of family (members or caregivers) in that it provides direction to not receive medical treatment such as antibiotics.
Question: Can I include the dementia directive as an addendum to my Colorado Living Will?
This is an option in Colorado because you can include a reference to “other directions” in the Colorado form. You can find one here on the Kaiser website, the website from which the form was taken (the Colorado Advance Directives Consortium) is no longer operative. Here’s one suggestion for additional instructions:
If I am conscious of my surroundings but have an
advanced stage of dementia, as defined below, that will likely be fatal, and I
am consistently and permanently unable to do any of the following (_____)
communicate verbally or in another meaningful way, (_____) swallow food and
water safely, (_____) care for myself, and (_____) recognize my family and
other people, and, in my physicians’ judgment, it is very unlikely that my
condition will substantially improve, I now direct that:
a. ____ I not be fed, through the assistance of another person, or by other
b. ____ I not be given fluids if I cannot swallow on my own.
c. ____ I not be given medicine other than pain-relieving drugs, which may be delivered intravenously if deemed necessary.
Here’s the final bits…
Here’s a link
to Kaiser Health Network’s article from last year about an
“aggressive new advance directive” which would let people express in advance their
preference that, in the event they experience dementia which progresses to
late-stage (and can last for many months and sometimes years) they be allowed
to refuse food.
Note that the New York directive allows two options: (1) a refusal of
all oral assisted feeding; or (2) feeding assistance focused on comfort only. You can read more about this “New Advance
Health Care Directive Developed For those Who Fear Dementia” and find a link to
download the NY directive here.
Finally, there is yet another form for Washington state, which is
known as “End of Life Washington’s Alzheimer’s Disease/Dementia Mental Health
Advance Directive,” which is specifically NOT an advance medical
directive but is rather a “mental health advance directive.” Notwithstanding the fact that AD and other
forms of dementia (Pick’s disease, Lewy body dementia in Parkinson’s etc.) are
neurodegenerative diseases are medical in nature and not “mental” or behavioral
health disorders. I find this document
confusing for this reason. How could anyone
be expected to distinguish between the provisions of two separate advance directive documents – one
medical and the other mental health – when the affected person has advanced
While the Death
With Dignity folks have put their support behind the Washington
form, it is unlikely that such a mental health advance directive for dementia
would be recognized in other states. One
of the interesting aspects of AD is its challenge to modern medicine’s boundary
between neurology and psychiatry, and AD remains a neuropsychiatric disorder. It
in the DSM-V as a neurocognitive disorder, If someone is but AD remains a medical illness
and not a psychiatric one. Happy planning!
If you’re reading this post you might be one of the
few people willing to talk about dementia – specifically about YOUR dementia. You may have determined, regardless of
whether you think you will suffer from some sort of dementia or significant
cognitive impairment in later life, it’s a good idea to express your wishes
while you can.
Making decisions for a person with advanced dementia is difficult at best, and at its worst, making the decisions in a vacuum – without any idea what the person with dementia would have wanted – is exponentially more difficult.
Do you have strong preferences about how you wish to
be treated if you suffer from dementia?
Perhaps you have been around long enough or have simply paid attention to witness the challenges and difficulties we have with dying in America, particularly with the kind of dying which appears to play out in slow-motion – which often accompanies advanced dementia.
Who will be your care partner?
Some years ago I wrote a post with a link to a “bill of rights” for dementia patients and here is a current link to a trademarked bill of rights for folks with dementia. These documents tend to be focused on dignity, maintaining a person’s “right of association” with people and places where they are valued and having a trained “care partner.” The people I have worked with who have been diagnosed with early stage dementia and who participate in research studies have usually identified a “care partner” because that is part of the preparation for the advancement of the disease.
The dementia directive’s choices: freedom from and
These older types of dementia directive tend to be
centered on holding to a person’s traditional preferences. In civil or human rights terms, these types
of statements are positive human rights and many are aspirational in
nature. But these statements also have
an important place in reminding all of us of our inherent dignity, regardless
of our cognitive abilities. But many
people want to take things further….
How much further? I received a call from someone whose sibling was gravely ill and in hospice care. While he had been expected to die some days or weeks prior to the phone call, the illsibling was hanging on by a thread while in hospice care.
The question posed to me was straightforward: can a
health care agent for a dying person arrange for getting a prescription for
life-ending medication for the terminally person?
The answer is “no”.
Under our End of Life Options Act, only an adult (in hospice care) who
has decisional capacity can seek such a prescription. A person with advanced dementia or someone who
lacks decisional capacity cannot get aid in dying meds. The law does not allow
an agent for an incapacitated person to procure such a prescription
The terminally ill sibling had a form of dementia caused by major organ failure, not Alzheimer’s or another type of dementia which has a disease process of many years and so was not able to assist the dying sibling in this way.
What exactly is an advance directive for health care?
I find this question requires a lengthy answer
because “advance directive” can include a medical power of attorney, a living
will, along with other documents or directives.
An advance health care directive is typically used for setting up the
legal framework for someone to name another person to make health care
decisions for them (a medical power of attorney) and to provide them some
guidance and direction about end-of-life choices (a living will).
This dementia directive has been in the news lately and has been the subject of a couple posts in my listserve communities. A CBA subcommittee has been formed for this topic, with the goal of providing a suitable form for clients, and yours truly is part of the subcommittee.
So, a dementia directive is a medical directive?
The answer here is a bit tricky! Why? AD is a
neurological disease which is generally covered by a medical directive, but
there is also AD with behavioral disturbance.
The dementia directive falls in the rift between neurology and
psychiatry that was created in the last century. For our purposes in Colorado, it appears to
fall under the category of advance medical directive, but in other states such
the dementia directive is a mental health directive.
More about the nuts and bolts of the contents of the
dementia directive in my next installment!
Are you one of the few and one of the brave who is
willing to talk openly about dementia – specifically what kind of care you want
and how you want your health care agent to decide for you in the event you have
dementia? Based on stats from the summer
of 2017, fewer
than one-third of Americans have executed a living will.
So, if you are one of those persons, this series of posts is for you!
By midlife, many of us have had some personal
experience with a family member or loved one with dementia. The disease
Americans are most afraid of is the dreaded Alzheimer’s Disease (AD for
short) or some other form of dementia.
For some of us, it overshadows even the fear of death. Perhaps this is because that dis-integration
of the brain causes us to forget the most basic of things – who we love, what
we like to do, what is our identity, and even how to die.
In our brain-centric culture, which so often takes
a reductionist view of the body as a kind of machine (e.g., the heart is only “a
pump”), to lost one’s mind is the most fearsome of possibilities.
How will you
know whether you might need a dementia advance directive? [Yes, it’s a trick
Over the years I have worked with a couple clients who have been diagnosed with early stage AD. These are typically the folks who are recruited to participate in studies involving the progress of the disease and new therapies. Informed consent for voluntary participation in these studies can be challenging. Here’s a link to an informative background paper from the 2017 Research Summit on Dementia Care, through HHS.
What are our choices?
Do nothing and hope for the best.
This is what most of us will choose by default. “My kids will know what I want,” I’ve heard said with a shoulder shrug. Really? How much more difficulty do we want to add to an already challenging situation?
Can’t I just rely on people I’ve already put in charge who know me to make the right decisions for me?
Yes, of course, as long as you have the
documentation in place. Most importantly
a health care power of attorney, which names a person (an agent) to make
decisions for you in the event you cannot give informed consent for medical treatment. The health care provider is the person who
decides whether a person can give informed consent.
You must rely on others, because dementia is a scenario which will leave many of us very vulnerable and unable to manage things on our own. There, I’ve said it. Is that really a fate “worse than death?” There is an inherent dignity of human beings, regardless of our “cognitive status” or whether we have trouble thinking or remembering.
What do I need to consider to put in this dementia directive?
This is some heavy lifting…. Let me start with a
bigger picture. I enjoyed reading a recent
New Yorker article by the late neurologist and writer Oliver Sacks which recounted
the activities of two different patients with dementia. One was a doctor who had been the medical director
of a hospital where Sacks had worked. Despite
his mid-stage dementia, the doctor had periods of relative clarity where he
believed he was a doctor at the hospital and would write prescriptions. This was intermittent, however and some of
the time the doctor was painfully aware of his predicament and his mounting losses.
The article poses the basic question about how to treat someone with AD, do we
honor the persons dignity and support them, to the extent feasible and appropriate,
in the belief that they can still perform the job that served as the cornerstone
of their identity?
This can be a tricky conversation, but of think of a relative who died in a facility from AD. After she lost most of her ability to speak and communicate with others, she retained a decent command of her fine motor skills. She had been an expert seamstress and embroiderer and my cousin reported how happy and occupied she was when she was given a knotted up necklace chain to untangle.
Okay, back to the response to the third question. There is a big difference in a dementia directive between expression of a “freedom to” in terms of what a person wants provided for them in the type of dementia care, and the right to express preferences which are a “freedom from” a statement of what is not wanted in advance of a time when we may no longer be able to object to such interventions planned or carried out “for our own good.” How much can we describe and determine in advance and what will actually “stick” in terms of the two competing positive and negative statements? Well, that’s a topic for my next post!
I subscribe to a number of listserves and received a post about a link to a recently published issue of the Department of Justice’s Journal of Federal Law & Policy (vol. 66, number 7, December 2018) which is entirely devoted to elder justice. You can read it in its entirety here.
The issue is chock-full of resources and its article cover a range of topics, including:
Opioid abuse and elder justice.
folks don’t know there is a
strong threat to elders posed by the estimated 1.7
million people addicted to opioids in this country. In Vail last August, a local M.D. presented
on this topic at the 10th annual CBA Elder Law Retreat. Here is the sad fact – many elders who need
their pain meds are being deprived of them by others, often family members, who
steal the elder’s pain meds. Here’s another
link on that
Transnational scam predators and elder victims.
Financial fraud has new and unanticipated expression in new
technologies, and elders are potential
prey for these scammers when elders use the internet to stay in touch with
people important to them. People who are
victims of these scams are at risk of losing their accumulated wealth (often hundreds
of thousands of dollars) and with that loss comes a spike in mortality rates of
these victims. While many of us might
think of the internet as “anonymous” – most of us know better because a
faceless and unknown predator can often inflict more harm than a known and
Elder abuse and neglect in American Indian and Alaska Native communities.
I found a monograph
published in 2000 which had useful information about the prevalence and reporting
of elder abuse in several Native American communities. Sadly, a 2014 publication states
that the prevalence of elder mistreatment in this population is unknown due to
the fact that only smaller studies of certain communities have been conducted.
What I found most helpful and hopeful about this issue of the
DoJ’s Journal however, was the article about the coordination of federal, state
and local partnerships involved in elder justice for the reporting, investigating,
prosecution of perpetrators and the provision of support services and redress
for victims. The two authors of this
article used an estimate that as few as 1 in 24 cases of elder abuse is
reported to authorities (at 138).
The federal government is a key player in assisting state
and local communities to recognize a common definition of elder abuse as well
as to provide guidance for federally regulated financial institutions and
assist in the tracking and prevention of internet and telecommunication fraud
and theft targeted at elders.
In my experience working with elders, communication with loved ones can be fraught with difficulties. Sometimes it can be a dialogue based on relationship and sharing of information, but it can also be a monologue forced onto others by one person (often an adult child) who strives to control the narrative of the family. The “silent generation” needs to speak up!
I draw attention to this because it is part of the “holiday season” that causes many people undue stress during the months of November and December!
Money Smart for Older Adults
With the goal of starting a discussion about empowering better communication by elders, I’m sharing a link to a newly published document called “Money Smart for Older Adults.” It’s a resource guide published by the CFPB, which is known now as BCFP it appears, along with the FDIC. It’s not a short document (weighing in at 100 pages) and would take some time to read – but it’s chock full of lots of resources.
It has some good information about scams, but keep in mind that most scammers are quite sophisticated and tend to “update” theirs tactics as well as tailor their scams to particular communities or individuals they target. Think of the scammer as like a virus in this respect!
I think a most crucial factor, particularly for members of the “silent generation” is to communicate: ask first whether the person you have in mind will agree to help you. This means that an elder should be careful about whom they ask to serve as agent for them under a durable POA. It may seem like a given that an elder would first ask a family member or friend if they would be willing to serve, but when people think that disability and estate planning is just about filling out some forms, disaster can follow! This can be hard for people of a certain age, who may not want to be sharing all these details about which they have remained mum most of their lives, but it is the best policy. Why?
Why the Silent Generation Needs to Speak Up
People should tell others whether they have a POA as well as who is the nominated agent so that others can help monitor things and look out for the interests of the elder. Communication about our weaknesses, shortcomings or frailties is seldom easy for most of us, but when we name people to assist us, it can be helpful for others to know we have made such arrangements as well as who those people are. For example, in case a neighbor knows that an elder is facing a particular health challenge and really needs help, the neighbor will know that the elder has already made plans and that the agent can be contacted and notified of the elder’s need for assistance.
Another reason to communicate wishes is to clarify the wishes in advance so that there are no surprises in the event of some accident or catastrophic event. Sometimes there is an adult child who has a chip on their should or perhaps an overweening sense of entitlement, and this child may be sorely disappointed to learn of the parent’s choice of agent when the elder faces a difficult decision about which they may or may not be capable of deciding. Making one’s wishes known well in advance can often “soften the blow” to such a child, but in the end, it may be of little assistance.
If an agent knows that there are others who might be looking over their shoulder, the agent may take better care of the principal’s interests.
Some Parents Need to Protect Themselves Against a Child Who Wants to Control The Parent
At the other end of the spectrum, I see quite a bit of “misery loves company” behavior as well. In this type of scenario there is one child who has been selected by the now-incapacitated parent who is effectively being punished by a child who feels left out or believes she should be entitled to make the decisions for the parent – this notwithstanding the fact that the parent did not select that child for such a decision-making role, usually for good reason. To my mind, there is a fair amount of litigation that is fueled by the “let no good deed go unpunished” and this is very unfortunate. But I digress….
Over the years, I have only spoken with a few people about including a “POA protector” in the POA document, but it may be that including such a role can be beneficial to a principal and also serve to protect the agent against the hostile actions
I s there anything that can be done about this? Some trusts are written which name a person known as a “trust protector,” and it may be time for a similar type of office to be created for the POA – like a POA protector. This can be a third person who keeps an eye on the agent’s record keeping or bookkeeping.
The Future of Medicare as We Know It Will Be Affected by This Election
Medicare is the federal health insurance program for people who are 65 and older and a small group of other folks. It consists of several parts: Part A (Hospital Insurance), Part B (Medical Insurance, which covers doctors’ services, outpatient care, home health services, and other medical services), and Part D (which covers outpatient prescription drugs). The Congressional Budget Office states that
Nearly all Medicare beneficiaries enroll in the program soon after they become eligible, typically either at age 65 or two years after they qualify for Social Security Disability Insurance benefits. Part A benefits are paid from the Hospital Insurance Trust Fund (funded largely through payroll taxes); Part B and Part D benefits are paid from the Supplementary Medical Insurance Trust Fund (about 25 percent funded by premiums paid by enrollees and about 75 percent funded from general revenues).
I know of baby boomers who aren’t yet able to retire and qualify for Medicare who put off major medical care (to the extent is feasible) until they are covered by Medicare. Medicare, such that it is, is a bright spot for most Americans who are retired. But things are changing!
But Medicare may be under attack – at least according to Save Medicare Now, whose website* lists these good questions to ask our elected officials and candidates:
•What specific steps will you take to preserve and strengthen Medicare for all beneficiaries, whether they are in traditional Medicare or a Medicare Advantage plan?
• How will you make Medicare more affordable for all the people who rely on it to make sure they get access to the care they need?
• Will you fight attempts to privatize Medicare by unfairly favoring private Medicare Advantage plans and/or by turning it over to big insurance companies?
• Medicare is a popular program, but there are significant gaps in what it covers, including most oral health, vision and hearing care. Do you think Medicare should cover these things? If so, how do we get there?
• Most people want to remain in their own homes as long as possible, but Medicare makes it hard for people with chronic conditions and longer-term illnesses to get home health care. Will you help ensure that all people who qualify can get home health care under Medicare?
• Some hospitals pretend people haven’t been formally “admitted” and are just “under observation” so they must pay out-of-pocket for nursing home care after they leave. Would you support pending legislation that would count all time a Medicare patient spends in the hospital toward the 3-day requirement to get nursing home coverage? What about removing the requirement altogether?
• At best you can generally get only 100 days of nursing home coverage if you are on Medicare. Do you think Medicare should include a long-term care benefit? If so, how would you accomplish that?
What Can We Do About Our Ever-Rising Health Care Costs?
This seems to have become something we all expect – that health care costs continue to rise in this country and as the baby boomers age, and these result in greater per capita costs to Medicare. Did you know that the Affordable Care Act helped to reduce Medicare spending? Remember all those tax cuts from earlier this year? Many of the people left behind on those tax breaks are going to start feeling the pinch soon. The midterm elections may determine whether our elected officials in Washington choose to strengthen Medicare or to gut it.
If this is news to you, consider that cutting Medicare is one way that some members of Congress would manage the deficit. This is an interesting development, particularly considering that a “Medicare for all” options is becoming more popular, even among Republicans.
Hmmm…. Maybe we need a health care revolution to stop our bleeding?
I often wonder when the credit agencies will start asking folks not what their monthly rent or mortgage payment is but rather what their monthly health insurance premium is! My monthly premium for my HSA qualified plan (among the cheapest available) continues to rise and for the last couple years it is larger than my mortgage payment!
That’s all for now and don’t forget to return your ballots on time!
Last weekend I attended the International Death Symposium in Toronto, Canada. I went with a friend who is a Canadian death midwife. We both enjoyed it. It was a rather extraordinary place to be, amidst an entire community of folks committed to dispelling the death taboo. The presenters and attendees were Canadians mostly, some Americans and an Irishman who spoke eloquently about his father’s death and wake.
2a(1) : oral exchange of sentiments, observations, opinions, or ideas
… we had talk enough but no conversation; there was nothing discussed.
(2) : an instance of such exchange : TALK; a quiet conversation.
Of course, I couldn’t mention “conversation” without a reference to The Conversation Project, which is a very useful tool to help people (like many of my clients) toalk about the end of their lives and express their wishes and values around that part of life.
In this post, I’ll share a couple highlights from the symposium. One of the “rocks stars” who presented was BJ Miller, a hospice doctor from San Francisco. You can watch a video here about the “problem of death” in our medical delivery system. Part of his presentation at the Symposium addressed the conflict of aesthetics of caring for the dying and the widespread use of anesthesia.
Aesthetic versus Anaesthetic
My late mother, an R.N. who received her nurse’s training through the Nurse Cadet Corps, would have been thrilled to hear an M.D. make reference to the work of a nurse. The nurse was none other than Florence Nightingale, the “mother of nursing,” who wrote about the aesthetics of caring for patients. Miller contrasted Nightingale’s insistence on aesthetics – a set of principles concerned with the nature and appreciation of beauty – with the current widespread use of anaesthesia (or anesthesia in the US) which is the numbing or rejection of aesthetics in favor of
Insensitivity to pain, especially as artificially induced by the administration of gases or the injection of drugs
In this place of intersection between our ability to sense and perceive beauty with the selfsame capacity to sense pain, what do we make of our commonly accepted and pervasive use of drugs in this country (and so much of the west) to numb us down to “ease our suffering” regardless of where in our lives we encounter that suffering? It could be at the end of our life, somewhere in-between for a surgical procedure, or it could become a lifestyle treatment for anxiety and depression. Does it matter where the suffering occurs for which we seek anesthesia?
Our Sense or Capacity to Appreciate the Beautiful is Inextricably Linked to Our Capacity to Feel Pain
Isn’t the pain of dying just the pain of living at a time of greater uncertainty? Why do we pretend we can draw the distinction so clearly – particularly during a time of unprecedented numbers of people dying of drug overdoses? I’m not talking about the present opioid crisis – a recent study has shown that our current opioid overdose epidemic actually began forty years ago and has been increasing – exponentially – since then!
How and why we distinguish between the pain of living and the pain of dying . . . well, that’s a topic for another blog post!
There has been a lot of heat generated in the last couple years by groups protesting abuses of guardianship proceedings in several states. In a couple earlier posts this year, I examined what guardianship reform might look like. In this post I’m combining a reprise of my “prosocial” theme with a popular topic – the general durable power of attorney or DPOA for short.
The DPOA Creates a Legal Relationship
The DPOA is an extremely valuable tool to help us manage our longevity. Each of us will die one day, but many of us will be affected by some incapacity because of an accident, surgery, condition or disease process. We don’t usually know if and when we will be affected by incapacity (unless we have a diagnosis of a brain disease like Alzheimer’s or another disease that implicates our cognitive functioning). It might be temporary incapacity or permanent in nature and worsen over time. When will we know if we need a DPOA? Well, after it’s too late to get one!
Death is a Certainty, Disability is an Uncertainty
Many of us are reluctant to think about our death, and for some just thinking about disability – particularly Alzheimer’s disease – can be more frightening than the prospect of death! For this reason, it is difficult for many of us to think about the circumstances under which a DPOA would be used. But the fact remains that a DPOA is a much simpler, cheaper and less restrictive tool than the alternative faced when one is beset by an inability to manage finances or, worse, incapacity: a conservatorship. Read more about conservatorship in Colorado on the Colorado state judicial website or check out the Colorado Bar Association’s flyer. Both an agent under a DPOA and a conservator act in a fiduciary capacity for the principal and the protected person, respectively. A fiduciary is a person who has a relationship of trust and confidence with another person and the legal relationship is the basis for a duty of a fiduciary to act in furtherance of the other’s persons benefit or in pursuit of their best interests and expressed wishes. There are many types of fiduciary relationship in the probate court context – but only some of those fiduciaries are court-appointed. For purposes here, we are talking about an agent named in a DPOA acting as a fiduciary for the principal.
A DPOA is a very powerful document and when the wrong person is named as agent, the agent can do much harm. But the DPOA is still an indispensable document because of its power to be used “in case of emergency.” As a planning tool, the DPOA helps people avoid much more invasive and expensive legal proceedings which are typically more work for the agent. There are ways to draft and tailor a DPOA to deter exploitation and provide for transparency which can make exploitation much more difficult. Here are several points to consider:
Choose your agent and successor agent very carefully
Many people think getting a DPOA is just filling out a form, but in fact there is lots of counseling which most of us in this field of estate planning and elder law do when we assist our clients in identifying who is the right person for this important job. Is the person named trustworthy? Are they financially savvy? Do they keep good records? Are they careful with money? Will the agent faithfully perform according to the principal’s expectations or desires? Remember that the agent works for the principal – and not the other way around!
Consider naming a “POA protector”
This person can perform a role similar to that of a more commonly known “trust protector” – someone to look in on things from time to time or on an as needed basis to ensure that the agent is performing their fiduciary role adequately. A good way of using such a POA protector is to name a third person to perform an accounting or some other oversight role. This can be particularly helpful in the event the principal loses the ability to manage their own finances or otherwise lose capacity. While this arrangement may sound intrusive, it may help smooth out bumps in the road among siblings after a parent becomes incapacitated. An elder parent’s slipping into advanced dementia can cause a lot of conflict in families and a POA protector can help provide transparency which can result in lowering conflict or distrust.
Take care to limit or otherwise define an agent’s gifting power
Under the Colorado Uniform Power of Attorney Act, an agent does not have the authority to make gifts to themselves unless the DPOA makes such a grant specifically. But keep in mind that this prohibition will not deter bad actors – so it can be helpful to spell out such provisions to make the prohibition more apparent to increase the detection of prohibited self-gifting by third parties – like a principal’s bank or other financial institution.
Make sure the DPOA refers to “hot powers”
What my colleagues and I refer to as “hot powers” are those powers that most agents will not need, and which must be specifically granted – like the agent’s ability to change the beneficiary on a life insurance policy or an IRA account for example.
Remember that A DPOA can be revoked and replaced
Keep in mind that the DPOA is not “written in stone” and can be revoked so long as the principal retains capacity to do so. This is a relatively simple way to take away an agent’s authority, but if the agent has been acting on a principal’s behalf (either with or without the principal’s knowledge) then the principal will need to contact third parties to notify them of the revocation of the DPOA and/or the agent’s authority.