Welcome to My Blog

I have a new logo, and I’m pleased to say that the day I purchased it and printed it out, I was able to ask a client what he thought about it, and he immediately recognized it as a tree and made the “tree of life” connection. Yes, that’s the tree I’m talking about! My logo is a tree that also looks like a person who is embracing a community. I think this is particularly relevant to what I do because I work to help my clients put together a holistic plan for their future – one that is consistent with the values a person has lived by and which honors the relationships with family and community members. Holistic planning can also involve peacemaking. The tree of life connection is especially meaningful to me because it symbolizes the transitory nature of our lives and the relationships, in the context of certain unchanging constants. The tree of life symbolizes a simple message of unity, that we are all part of a community and it is represented in a number of different cultures, myths, faiths and traditions across time and geography. It is an important symbol for my practice philosophy because I seek to assist my clients in identifying ways they can maximize the support and connections they need from others during their lives and so they can transmit their legacy after they are gone.

I mention the Tree of Life specifically on my blog page because my blog is the place where the diverse but related interests will converge. We have never before had so many 80 and 90 year-olds on the face of the earth. What are the implications for law, ethics, medicine, philosophy? These are all appropriate aspects of identifying a strategy for clients because a sound plan must take into account the “ripple effect” of individual actions that relate to financial, emotional, medical and physical considerations that are often relevant in the legal context.

 

Medicare and the Midterm Elections?

On the threshold

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!

*Thanks to Professor Rebecca Morgan, a contributor to ElderLawProfBlog for psoting about the Center for Medicare Advocacy’s  website Save Medicare Now changes to Medicare.

©2018 Barbara E. Cashman, www.DenverElderLaw.org

 

 

Memento Mori: Bringing Death Into Conversation

Memento Mori – from Kirkwall, Orkney Islands

Memento Mori: Remember Death, That You Will Die

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.

So, what is conversation anyway?

Definition of Conversation

1 obsolete : CONDUCT, BEHAVIOR

2a(1) : oral exchange of sentiments, observations, opinions, or ideas

… we had talk enough but no conversation; there was nothing discussed.

—Samuel Johnson

(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!

I’ll write more soon about the Symposium.

I’ll close with Emily Dickinson’s Because I Could Not Stop For Death

Because I could not stop for Death –

He kindly stopped for me –

The Carriage held but just Ourselves –

And Immortality.

 

We slowly drove – He knew no haste

And I had put away

My labor and my leisure too,

For His Civility –

 

We passed the School, where Children strove

At Recess – in the Ring –

We passed the Fields of Gazing Grain –

We passed the Setting Sun –

 

Or rather – He passed us –

The Dews drew quivering and chill –

For only Gossamer, my Gown –

My Tippet – only Tulle –

 

We paused before a House that seemed

A Swelling of the Ground –

The Roof was scarcely visible –

The Cornice – in the Ground –

 

Since then – ‘tis Centuries – and yet

Feels shorter than the Day

I first surmised the Horses’ Heads

Were toward Eternity –

From The Complete Poems of Emily Dickinson, Thomas Johnson, ed.

That’s all for now, next time I’ll post about the Phone of the Wind, a.k.a Kaze No Denwa

© 2018 Barbara Cashman  www.DenverElderLaw.org

The Durable Power of Attorney: Of Rights and Relationships

Ancient Italian Stone

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.

In the elder law and estate planning context, taking stock of our relationships with those with whom we are close requires us to examine who we are naming for which “job description” and to ensure the named person is the right one to perform the job.  Choose carefully!

© 2018 Barbara Cashman  www.DenverElderLaw.org

 

 

Denver Senior Law Day is Saturday July 28, 2018!

Entrance to Fingal’s Cave

It’s that time of year again . . .  for Denver Senior Law Day!

In case you aren’t able to attend any of the Senior Law Day (yes, theyr’re statewide) events, you can still download the chapters of the 2018 Senior Law Handbook by going to this link on the Colorado Bar Association website.  It’s an excellent source of information addressing many popular topics in Colorado estate and elder law.

Denver’s Senior Law Day will once again be held at the PPA Events Center at 2105 Decatur Street, Denver, CO 80211. Registration begins at 7:30 and the speakers’ programs and the “ask an elder law attorney” sessions run until 12:00 p.m.  Attendees will take home a copy of the 2018 Senior Law Handbook, published by CLE in Colorado.  Preregistration can be done by calling (303) 757-4342 or emailing SLD@DenverProbateLaw.com.  Here are some of the workshop topics:

  • Medicare / Medicaid Benefits / Social Security
  • When Someone Dies: What to Do During the First Days
  •  Estate Planning: Wills, Trusts & Your Property
  •  Safely Living in Your Own Home: Aging in Place
  •  Advance Directives and Guardianship
  • Colorado’s End of Life Options Act

I will be co-presenting once again with my colleague Carl Glatstein and we will be talking about advance medical directives and guardianship in Colorado.  I hope to see you there!

 

More about Preventing Elder Abuse With Prosocial Behaviors

Who You Callin’ Stubborn?

 

This is a follow-up post about WEAAD.  Elder abuse is a phenomenon that affects not just the victim of abuse, but threatens the fabric of our community.  Besides mandatory reporting, prosecuting perpetrators and enforcing existing laws prohibiting elder abuse and exploitation, there are prosocial behaviors which can serve as powerful and effective preventive interventions to guard against the isolation and vulnerability which often lead to elder abuse.

What Are Some Examples of Prosocial Behaviors?

The term was coined as an antonym of the more prevalent term “anti-social” behavior.  It comes in many different theoretical forms, but they all recognize that we humans are social beings and depend upon one another, notwithstanding many of our “atomistic” beliefs about who we are and how we interact with each other.  In this respect, prosocial behavior is tied to our very survival, but a functional approach is what I’m concerned about here because I’m looking at ways to foster elders remaining visible members of our community.  The basic behviors might include: demonstrating concern for others, sharing time and resources, caring for others and active empathy.

Isolation as a Precursor to Elder Abuse, Inclusion as the Antidote

It may not occur to many of us that someone’s ability to live independently in the home – a/k/a aging in place, can have disadvantages and drawbacks.  From my experience, I see plenty – but don’t get me wrong, I am definitely not against aging in place!  I am concerned that sometimes it gets glamorized in unhelpful ways.  I have seen some elders dig in their heels at the suggestion by loved ones that they bring in some help to perform household chores or share in meal preparation.  In its worst expression, it becomes a vow by the elder that they will only be removed from their home “on a gurney.”

How Our Focus on a Rights-Based Approach to Elderhood Often Overlooks the Prosocial Activities of Inclusion and Participation

Most elder abuse occurs in the home.  Many elders face abuse and abusive situations in skilled nursing facilities or other facilities and these tend to be the attention grabbers.  I think of this fact when I read the ruling on appeal issued by the U.S. Tenth Circuit Court of Appeals last May, which upheld a jury verdict of $1.21 million in damages against an operator of an Oklahoma City, Oklahoma nursing home for abuse of one of its residents by nursing home employees. Keep in mind that nursing home administrators have many resources to assist them in training and supervising staff, one of these tools is known as TPAAN and here’s more information about it.

Our Collective Fear of Dementia Often Means We Shun People Affected by Dementia

When we’re talking about elders aging in place, we have to consider folks with dementia.  People with dementia have trouble thinking and sometimes their loved ones in particular (most of whom have no special training in communicating with people with dementia) or other community members have a difficult time not correcting those errors in thinking, cognition or memory impairment.  But what if we looked at those “errors” not as errors but simply as a different way of being in the world?  How could we get through to see and listen to someone in that different world the person with dementia inhabits?  Remember, there is still much opportunity for communication, which can and does still happen.  The more challenging question is how we can facilitate it.  I think of music and its use in Alive Inside and I recently learned from a Canadian friend of the Butterfly Model, a new version of person-centered care that recognizes that

for people experiencing dementia, feelings matter most, that emotional intelligence is the core competency and that “people living with a dementia can thrive well in a nurturing environment where those living and working together know how to “be” person centered together”

We Can Still Be in Relation With A Person Whom We Struggle to Understand

This person-centered care is a relational way of engaging with a person affected by dementia. It also reminds me of Naomi Feil’s validation therapy, which is also relational.  So, this leads me to the inevitable question, can people engage in this type of relational work without specific training and/or outside the context of institutionalized care?  I will write more about this soon….

©2018 Barbara E. Cashman, www.DenverElderLaw.org

Observing World Elder Abuse Awareness Day, June 15, 2018

A Wee Highland coo…

WEEAD is Friday! If you want to show support in social media for this day, try this Thunderclap link to add your voice.  I write this post after a move to a new office, which is comfortable and spacious, where I am nestled amidst tenants who are friendly and engaging.  It has happens to be just a few blocks from where I attended junior high school.

Community has many definitions depending on the various contexts of our interactions with each other and where we are interacting with each other.  A big part of community is seeing the other person and being seen by another. Being seen is something we take for granted.  Last week, a man hid himself under the front of a public bus, which then dragged the man’s body nearly half a mile until coming to a stop.  This took place on the street where my office is located, right in front of my office window.  But I didn’t see it happen.  The bus driver obviously didn’t see the man, which ended in the man’s tragic death.  It seems that our ability to see one another is becoming increasingly more difficult.

WEEAD – Prevention of Elder Abuse Begins with Seeing Elders as a Contributing Part of Our Community

In our world, seeing is a precursor to engaging with the other.  Engagement can lead to effective participation.  Take a look at this link to The Road to Elder Justice Virtual Art Gallery with many beautiful expressions of what elders contribute.  On this WEEAD, events are scheduled in nearly every state to raise awareness.  Check out this event organized by the Boulder County Area Agency on Aging.  Here’s a link to a Facebook Live broadcast today at 5:00 p.m. MDT about how the Office of the Inspector General at the Social Security Administration detects and prevents suspected elder financial exploitation  and how people can protect themselves and others from mistreatment.

A question follows: what do we see about elder abuse and how do we see it?

One helpful resource has identified the beliefs about elder abuse as “the swamp:” which includes limiting beliefs (often mistaken for conventional wisdom…) such as:

modern life is the problem – we simply don’t care enough about older people so caregivers are pushed to the limit and older people are devalued;

there are not enough resources for any solutions – there is not enough money for prosecution and surveillance of perpetrators, or raising awareness and education about elder abuse to help recognize it or for providing support for caregivers and as a result, nothing can really be done;

the individuals affected are really the problem – perhaps these elders had it coming as payback, many older people are difficult to deal with or have personal weaknesses, the perpetrators are greedy, lazy, opportunistic, or bad people who cannot be deterred, and we’re either all responsible for it or no one is;

elder abuse is vaguely defined and hard to recognize for many people – elder abuse as such is not acceptable, but many forms of neglect don’t qualify as abuse, including sexual abuse of elder women.

This ”swamp” thinking described above is hardly “thinking”, as these represent only relatively common types of limiting beliefs like: universalizing a problem to inflate its significance and make “solving” it impossible; personalizing elder abuse to make it only about certain types of individuals who are affected; catastrophizing it so that the only “response” can be hand-wringing; and making unrealistic or false distinctions about what is acceptable behavior and what is not so as to make identification of the real problem impossible.

We Must Refuse to Accept That Elderhood is Only About Loss and Marginalization

Like the “swamp thinking” above, many of us have unexamined beliefs about what it means to be “old.”  These beliefs can reflect scarcity beliefs and thinking about the world each of us lives in.  Those beliefs can dictate what we see in elders and how their role in society is marginalized. In this respect, the marginalization of elders as a kind of “lesser than” or “has been” segment of our culture and economy becomes a kind of collective self-fulfilling prophecy.  Sociologist Robert K. Merton coined that phrase in 1948 with these terms:

The self-fulfilling prophecy is, in the beginning, a false definition of the situation evoking a new behavior which makes the original false conception come true. This specious validity of the self-fulfilling prophecy perpetuates a reign of error. For the prophet will cite the actual course of events as proof that he was right from the very beginning.

Looking at the relationship between our diminished expectations of what is possible in elderhood and what we expect to see, based on our expectations, generally leads to …  These expectations become the self-fulfilling prophecy, for ourselves and for others.  But, this challenge becomes an opportunity to change our perspective and change our minds.

There are good resources available that help us to reframe the story of elder abuse from one based on inevitable decline, vulnerability and victimhood to a story from a different perspective, reframed to tell of empowering ourselves and elders to engage with and participate in pro-social activities designed to strengthens the ties which already exist – instead of disowning them because of some of the difficulties we have come to experience.

I will write more about pro-social behaviors we can nurture and support to prevent elder abuse – as individuals and collectively.

© 2018 Barbara Cashman  www.DenverElderLaw.org

May is National Elder Law Month!

Italian Door

Did you know that the first recognition of this month was in 1963, when President Kennedy declared it to be Senior Citizens Month to honor those 65 and older?

I am observing it in my way by continuing to post about topics relevant to elders and the rest of us who aspire to become “senior citizens” …  Today’s post is another in my series on guardianship reform.

I recently read a new publication by Thomas Lee Wright, The Family Guide to Preventing Elder Abuse (2017: Skyhorse Publications). Wright also produced Edith and Eddie,” the 2018 documentary short Oscar nominee, which you can watch here.  I watched this poignant short film about a newly married nonagenarian couple.  There were many things in the short that were left out of the film which concerned Edith’s dementia.  The film could have gone into detail about the legal wranglings relating to Edith’s guardianship, but it didn’t.  To my mind, the beauty of the story was its simplicity: their love for each other.  I don’t want to give a spoiler alert concerning the sad ending, suffice it to say it had to do with Edith’s guardian’s decision-making authority.

Back to the book.  Many aspects of Wright’s book I found to be informative and helpful, but one of the shortcomings I sometimes find about books of this nature which originate from an author’s personal experience, is that its scope tends to be narrow and somewhat reactive to the situation with which the author unfortunately was made familiar.  I did like that many of the chapters are written by others with expertise in the field about which they write and provide different perspectives.

Are the Probate Attorneys and the Guardians of Incapacitated Elder Adults Part of the Solution or Part of the Problem?

As an attorney representing clients involved in protective proceedings or related matters, I work in an imperfect system.  Sometimes I struggle to explain to clients why things work the way they do.   Sometimes they ask me why it is so hard, why it has to be so difficult to take care of a parent.  My answer is always the same: if it were easy to do the right thing, we would live in a vastly different world. There is no black/white or right/wrong in our legal system, even fewer in probate matters as there are many perspectives and viewpoints of someone’s “best interests” in probate court.  A colleague once referred to it as “like a divorce except with five people involved.”  It is in this sense a branch of domestic relations court.

Why is this observation important? Each of us – attorney, client, as well as the other involved in proceedings (and there can be a rather large cast of characters) always need to keep in perspective that we have our own perception of what is happening and why, our own beliefs about what is in another’s best interest, and our probate court system tries to account for these things while respecting due process rights of the elder involved who is not able to make or communicate important decisions relating to the court proceedings.

But I digress, so back to the book… of interest to me were chapters 7 “Working with Professionals” (doctors and lawyers) and chapter 8 “Abusive Guardianships.”  Chapter seven addresses how to work with doctors and lawyers.  Many of my clients with whom I work have not previously hired an attorney.  There are many things to consider in hiring a lawyer in the elder law context, but I think the most important considerations are working with someone you feel you can trust, he uses clear and effective communication skills and answers your questions and provides guidance.

As for chapter eight, I found the co-authors’ very brief “history” of guardianship law to be not helpful and its broad statement concerning the standard of proof in guardianship proceedings is misleading and could easily have been corrected with fact checking.  In Colorado, the standard of proof for establishing a conservatorship is a preponderance of the evidence, while for a guardianship the standard is clear and convincing evidence.  There is no “one size fits all” preponderance of the evidence burden of proof in civil proceedings.

I also found their use of the term “predatory attorneys and guardians” to be vague and misleading.  I was not sure whether the term was used to refer to professional guardians and there were few details to flesh out the use of these terms.  As an attorney in Colorado, I can say that in a Petition for Guardianship or Conservatorship, I must alert the court as to the existence of a medical or general (financial) power of attorney and will typically explain in the Petition why the agent is unable to perform their duties as anticipated.  The advance planning in the form of POAs is not just summarily chucked out the window!

Advance planning does not work 100% of the time.  Complications can arise when an agent is no longer willing to perform because the job is too difficult.  In my practice this typically takes place because of family dynamics and as a result of sibling relationships becoming more fractured and hostile due to an elder parent’s cognitive decline or incapacity.  Sadly, some children readily take advantage of the situation, sometimes out of a sense of entitlement, that the parent “owes” them, or because they have nurtured a lifelong grudge against the sibling who is selected as the parent’s agent.  Sometimes it’s one child with a “misery loves company” modus operandi, these folks are very troubling to their unwitting parent and the adult child the parent has named to assist the parent as agent.

By the time an adult enters the probate court proceedings as a “respondent” named in a Petition for Guardianship or Conservatorship, the elder parent may be in the final stages of advanced dementia and barely rooted in time and place. Court appointed counsel, known as “Respondent’s counsel” may or may not be able to adequately represent the Respondent’s legal interests due to communication difficulties and a court may find it necessary to appoint a Guardian ad Litem to represent the Respondent’s best interests.

No Respondent Goes Willingly to the Hearing on a Petition for Guardianship!

I have yet to hear an elder respondent state, “why yes, your honor, I have really been slipping cognitively and need the court to appoint someone to take care of everything and make decisions for me.”  The cognitive impairment of an elder is often barely noticeable because it tends to happen over time, often gradually.  Some elders refuse to go to a doctor because they suspect they will get a dreaded diagnosis they don’t want.  I sometimes refer to Alzheimer’s as a contagious disease because it often happens that the denial that something is terribly wrong is shared with a spouse, adult child and sometimes others close to the elder with cognitive impairment that puts them at risk to financial predators.  Couple this with the fact that there is no medication to slow the decline or reverse the losses and the result often means waiting until a catastrophe has taken place.  Maybe mom gave away $30,000 of her $60,000 life savings to one of her kids or to a neighbor or to purchase lottery tickets.

There is neither a simple nor an easy solution to this challenge to our legal system.  It will only become bigger and more complicated as the numbers of old and cognitively impaired baby boomers rise and their often fractured family relationships contribute to the dysfunction.

In the next post on this topic I will look at standards for appointing a guardian or conservator as well as the oversight by the court system of these proceedings, which can cover a long span of years.

© 2018 Barbara Cashman  www.DenverElderLaw.org

A Brief Look at the Thinking Behind Guardianship Reform

Help with wings

Those of us who practice in the field of conservatorships and guardianships (this is Colorado terminology; their precise titles vary from state to state) are now struggling to make sense of the many proposed changes put forward by critics.  I am primarily concerned with the proposed legislation from the Uniform Law Commissioners known as the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act (UGCOPAA).  This proposed legislation has been hailed as a modern update to guardianship and conservatorship law.  Where Colorado (in contrast to many other states) has long established uniform guardianship and conservatorship legislations, along with periodic updates, the new uniform legislation is basically “Guardianship 2.0” in that it represents a major and systematic update and overhaul.  The American Bar Association has a good overview of the proposed uniform legislation here.

The Challenges of Reforming Different Systems Among the States

Nationwide, there are many groups and individuals behind efforts to reform guardianship (as the term will be used collectively to refer to both types of legal proceedings).  The different groups have different criticisms and there is no shortage of horror stories about how these “protective proceedings” have gone wrong for many people.  While many people would like to have more uniformity and oversight imposed on the state systems of probate courts, the federal government is neither equipped nor inclined to act as overseer here.  The lack of resources for the much-hailed Elder Justice Act is an example of this unfunded mandate.

There Are At Least Two Different Populations of Vulnerable Persons

Guardianship reform efforts are aimed to assist those identified as the most vulnerable segments of our population: the disabled community (with organizations like The Arc and legal protections like the ADA), along with elder adults with declining cognitive capacity.  This latter population will continue to grow.  The numbers of elders with severe cognitive impairment grows with the numbers of elders, and the Alzheimer’s Association has dubbed my generation of baby boomers “generation Alzheimer’s.”    To my mind, there are two very different “camps” of persons in this proposed legislation.  Suffice it to say that the two segments are generally included as a group together because of the overlapping needs for respect for their rights to dignity and self-determination.

My central concern with the proposed legislation is the point where the two groups interests and needs for protection diverge.  Keep in mind they are very different populations.  I’m using a broad brush here, but we’re talking about needs and protections of a developmentally disabled adult who may be relatively high functioning in some aspects of living and need substantial assistance in others.  They may be able to live independently with assistance.  Contrast this with the large numbers of elder adults who, as a direct result of our unprecedented longevity, have amassed resources, established relationships and lived their own lives prior to succumbing to dementia.  When does one lose the ability to manage one’s own affairs?  That simple question has no simple or easy answer!

Among those who call for guardianship reform in the context of elders, there are a couple groups, those associated with celebrity children of fathers who suffered from Alzheimer’s Disease.  These daughters were not allowed sufficient visitation with their fathers due to restraints placed on such visits by their stepmothers, specifically Kasem Cares and the Catherine Falk Organization, who have zeroed in on a right to association as part of guardianship reform.

The Guardianship Reform Movement Is a Diverse Group with Many Diverse Interests Represented

Suffice it to say that some of the diverse interests conflict with each other.  Many of the calls for guardianship reform are in response to the inherent failings of a particular state’s system of oversight.  Nevada’s system in Clark County was the subject of Rachel Aviv’s New Yorker article “The Takeover,” and it documented in horrifying detail how elders were systematically stripped of their civil rights as well as their property, with hardly a nod in the court system to any due process rights.

That reform is needed is not the issue, but the where, how, why and what of that reform should be examined closely, instead of trying to overlay a “fix” for a problem which may not exist or by creating new problems by reforming a system in its entirely when there were parts of it that were working fairly well.  If you take a poll of attorneys in this field, you would be hard pressed to find people who don’t have concerns about how our system works and most of us could list an array of its shortcomings.  Does this mean the system is broken? I don’t think so. Does it need improvement? Yes.  Our legal system is a functioning part of our government that must respond to the diverse array of interests, pressures and fiscal priorities and realities.

What I find disturbing about all of this is the clamor to “fix” a broken “system” – as if all we needed to do was pass some new legislation that would magically transform the adult protective proceedings system into a streamlined, dignity-honoring and civil rights protecting regime. In our obsession to fix a problem and then move on to the next thing, we overlook the opportunity for thoughtful change and typically neglect the big picture of looking at the entire system – both the working and the failing parts, with an eye to improving particular outcomes.  This takes longer obviously, but avoids the throwing the baby out with the bathwater approach.

Next time, I will look more deeply into the criticisms levelled at attorneys and fiduciaries working in the field of conservatorships and guardianships.

© 2018 Barbara Cashman  www.DenverElderLaw.org

The Dead Girl Who Continues to Live

Death Upside Down

Four years ago I wrote a post entitled “When Death Is Not Death: Stumbling Over the Parameters of “Brain Dead” about brain death and other medical-intellectual curiosities.  Turns out that one of the young women whose “brain dead” status I described is still. . . not dead, er… rather alive.  Alive for some people, seems to mean “brain dead” for others!  I read with interest Rachel Aviv’s Feb. 5, 2018 New Yorker article  about Jahi McMath, the teenager who suffered complications from a December 9, 2013 tonsillectomy at an Oakland, California hospital.  Some of the story is about our “health care system” and its values – about whose life matters, what condition of life passes for death.  The biggest challenge I see for all of us and this predicament we find ourselves in with health care in this country – is the dogma of the medical-industrial complex and its insistence on getting everyone “in line” about what passes for death and training us to simply not question the information we are given by the professionals reading the diagnostic screens.

Acting “As If” Death Had a Clear Legal and Medical Definition

To the extent we privilege the measurement of brain activity as a measure of our consciousness, as an indicator of the proof of our existence, we deny the underlying philosophical problem of defining or delimiting life and death (and consciousness).  Our present obsession with the measurable quantification of our biological activities is a major component of our current health care system.  We love the pictures of our insides and their operations in “real time.”  As long as we continue to collectively pretend that one’s existence can be verified by a particular type of brain scan, we will remain in denial.

But that denial is often a safe place, based on the “safety in numbers” type of thinking and as a result of the unquestioned power that doctors have and wield over us with their technocratic medical delivery system.

The Audacity to Think – or Rather Believe – That Our Technology Alone Can Be Used as a Means of Extending Someone’s Life by Prolonging Rudimentary Bodily Functions.

I talk to many people who confuse life support with extending one’s life and also with prolonging the dying process.

How do we tell the difference?  Why, ask the doctors!

Can I be kept alive indefinitely against my will? I haven’t heard that question yet, but I suspect there are versions of it being asked.  I am not comfortable handing over my authority to a health care provider who refuses to consider (let alone struggle with) the bigger questions about life – and death.

At a fundamental level, Jahi McMath’s story is about her family members who simply refused to believe what they were being told by the doctors.

One of the neurologists who examined Jahi McMath was the recently retired chief of neurology at Olive View – UCLA Medical Center.  Dr. D. Alan Shewmon was no stranger to cases where patients – many of them children or youths, survived for months or years after being declared brain dead by the medical establishment.  You can read his 1997 article “Recovering from Brain Death: A Neurologist’s Apologia”   here.

No answers in this post, only questions.  How far does the death taboo extend to our thinking or believing (which are often indistinguishable) about what passes for life?  In our brain-obsessed culture that is fascinated with measurements and arriving at the quantifiable, where does the subjective and mysterious show up – or is it simply banished and its existence denied?

© 2018 Barbara Cashman  www.DenverElderLaw.org

What Might Guardianship Reform Look Like?

Sienese Sculpture

 

What would a change in our guardianship law in Colorado mean?  Well, that depends! In my previous post about guardianship reform I looked at it in general as well as its application to Colorado.  In today’s post I’m asking some additional basic questions, which are aimed at making some fine-tuning adjustments where our present law doesn’t appear to suffer any major shortcomings.

How Can We Appropriately and Affordably Assess a Person’s Capacity?

Last month I attended a meeting of the UGCOPAA subcommittee of two Colorado Bar Association sections.   We are tasked with looking over the proposed uniform law’s provisions and we discussed some of the UGCOPPA’s provisions concerning the role of evaluations – like neuropsychological evaluations to assess a person’s functional capacities to perform different cognitive tasks of a person’s capacity.

How can we ensure that a capacity assessment is “good enough” for purposes of a court’s determination regarding whether a person is incapacitated or whether a person could benefit from assistance for particular tasks or function – something short of an unlimited guardianship and what will later be discussed as a kind of “other protective arrangement?

What Are the Implications for Going Beyond a “Physician’s Letter” that Are Currently Used to Support a Petition for Guardianship?

In Colorado, our law presently disfavors the imposition of plenary or unlimited guardianships over limited guardianships.  But – and this is a big caveat – the difficulty, particularly in addressing the circumstances of an elder with worsening dementia, is that it may sound like a good idea to have a limited guardianship but such arrangement may not be workable on a practical level because it might require the court to revisit the person’s needs as they increase and require more support from others which would not be contemplated in a limited guardianship.

Will the cost for getting a “good enough” evaluation make the proceedings too expensive?

The challenge here is how to make the laws accessible but still affordable for states with tight judicial resources. Easier said than done! I don’t think it would be a good idea to have a law which is an “unfunded mandate” in this context!

In case you’re wondering what is going on in the rest of the country regarding “guardianship reform,” there are some recently updated resources from the American Bar Association’s Commission on Aging.

Remember that the “guarding the guardians” theme is nothing new for guardianship legislation.  Over the years, studies have been performed to assess the effectiveness of monitoring and oversight by courts, as well as training and accountability for court appointed fiduciaries (including guardians).  There have been a number of national guardianship conferences (including those known as “Wingspan”) in which specific recommendations have been identified, which have included those concerning monitoring  by courts.

The National Center for State Courts also has a Center for Elders and the Courts webpage, which contains useful resources including an elder abuse toolkit and an elder abuse curriculum.  What we’re really talking about here in guardianship reform is about preventing elder abuse.  But it is complicated because the definitions concerning what constitutes elder abuse are inconsistent among states and federal law.  I do not want to diminish the importance of looking at reforms for state guardianship laws, but in my experience, the detection and reporting of elder abuse is a far more challenging and pervasive problem.  Ensuring that the civil rights of elders are protected requires us to look at the big picture in this regard, so that is what we are doing.  More on this topic next time….

© 2018 Barbara Cashman  www.DenverElderLaw.org