The Perils of Elderhood: Retirement Insecurity

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Florentine graffiti… what me worry?

The road to elderhood, a successful elderhood at least – relies upon a foundation built on experience.  The experiences of this “newness” to one’s old age or elderhood, implies that in the second half of one’s life we can utilize our experiences of trauma, grief and pain which we all experience in the first half of life and translate them into our own personal form of resilience.  Well, that might be a goal at least.  How many of us get evaluated or graded upon these kinds of things? Hmmm, not many – particularly when many of us who have reached that “certain age” as the French call it, care less about what others might think of us. Retirement insecurity can take on many characteristics including depression due to a lack of a purpose to get out of bed or a place to go, not knowing where we “fit in” in the new world of retirement, determining where we want to live if our grandchildren are far away, and so on.

Change Typically Makes Us Feel Insecure

So, can this story of one’s elderhood be a “new” story for us?  I think the answer is a resounding “yes” – this notwithstanding my lack of reference to a single “self-help” book! Acknowledging the hurts and harms we sustained in the past and being with them to the extent that we neither deny their existence nor do we fixate on trying to heal those hurts.  Maturity here calls forth both a degree of necessary resilience as well as a certain perspective taking which is not “all about us.”  The funny thing about time and our relationship to it is that we are always able to remake and retool that relationship.  I think about the oft-used saying that it is “never too late to have a happy childhood.”

We Can Plan For Some Semblance of Security and Adjust Our Expectations

I will use the quote by Antoine de Saint-Exupery (author of the beloved story The Little Prince) on this topic:

The time for action is now. It’s never too late to do something.

The number of boomers inching into retirement continues to rise, this notwithstanding the changes and insecurity that retirement brings.  I have heard many people say that they can’t afford to retire and they will just keep working. . . but this is often realistic because it ignores some of the challenges that come with aging and assumes that there will be a job or some form of suitable employment.  Here’s a recent Washington Post article about financial insecurity in retirement.

As the U.S. government Accountability Office recently observed in a report – financial insecurity is trending.  I’m not quite sure what that means – but I don’t think it’s a good thing!  Section four of the GAO’s 173-page report examines the need to re-evaluate the nation’s approach to financing retirement.  It notes:

Over the past 40 years, the nation has sought to address the issues facing the U.S. retirement system in a piecemeal fashion. This approach may not be able to effectively address the interrelated nature of the challenges facing the system today. Fundamental economic changes have occurred, as well as the shift from DB to DC plans, with important consequences for the system. Further, it has been nearly 40 years since a federal commission has conducted a comprehensive evaluation of the nation’s approach to financing retirement. A panel of retirement experts convened by GAO in November 2016 agreed that there is a need for a new comprehensive evaluation. The experiences of other countries can also provide useful insights for ways to improve the system.

There are numerous articles about the failed IRA and 401(k) experiments as a replacement for defined benefit (DB) plans, a/k/a pensions, but I will steer clear of those.  These plans have encouraged Americans to save for their retirement, but about half of Americans aged 55 or older have NO retirement savings in an IRA or 401(k).  But here is a link to a Forbes article which disputes the dire findings of the GAO report for its failure to account for valuable pensions.

It’s Not Too Late to Plan for Or Scrutinize Our Retirement Budget Expectations

So, retirement saving and planning is both an individual and a collective phenomenon, that’s nothing new – but what about those factors affecting the sufficiency of our retirement income based on our savings, pension and social security income?  How much money will we need in retirement? The answer is, of course – it depends!

The single biggest expense that faces Americans in retirement is health care and it is under attack once again, this time in the form of tax legislation which the Congress is still working on, but the handwriting was on the wall for Medicare when the 2018 budget was recently unveiled.   We still don’t have any details about the tax package.

How Many Elders Will Be Able to Afford Medicare Coverage in the Coming Years?

Here is a 10/27/17 article from the Kaiser Family Foundation which examines how the loss of the ACA’s Cost-Sharing Payments will affect insurance premiums in 2018.  While the costs of health care in retirement remain largely uncertain and unknown for most of us, an article from last summer estimated that health care will cost couples $275,000 in retirement.  Wow!  What happens to those elders who can’t afford the Medicare premiums, co-pays and deductibles?

It is extremely difficult to anticipate how much coverage will be left in Medicare as well as how much it will cost in premiums. Here is a link to the 10/26/17 AARP’s  “Premium Support is the Wrong Direction for Medicare: Highlights from a New Research Report.”  The Urban Institute’s 10/26/17 Report, on which the criticisms of restructuring Medicare premium support is based, is available here.  The conclusions include several areas of concern around the effects of premium supports, which they conclude would drive up premiums, making better plans much less affordable, along with the prospect that in some areas, private plans may no longer be available.    These effects would not lead to any increase in choice, but would lead to homelessness and hardship among elders, as one source reported only a few days ago.

Perhaps elders still have some voice in stating preferences about how they will be affected by changes to Medicare. . . .

© 2017 Barbara Cashman  www.DenverElderLaw.org

Elder Abuse and Domestic Violence

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Elder Abuse Hastens Death

October is domestic violence awareness month.  I have previously explored some of the links between these two dangerous expressions of violence -elder abuse and domestic violence, but I thought it was time to delve into this topic a bit more deeply.  The National Committee for the Prevention of Elder Abuse identifies domestic violence as

an escalating pattern of violence or intimidation by an intimate partner, which is used to gain power and control.

Two broad categories of domestic violence against the elderly can be identified:

“Domestic violence grown old” 

is when domestic violence started earlier in life and persists into old age.

“Late onset domestic violence”

begins in old age. There may have been a strained relationship or emotional abuse earlier that got worse as the partners aged. When abuse begins or is exacerbated in old age, it is likely to be linked to: events such as retirement, disability, changing roles of family members and sexual changes.

Many people might find it curious that some elders would enter abusive relationships late in life, but there is a strong connection between elder abuse and family violence.  Family violence can manifest in a variety of ways, from callous and violent actions toward a pet or other animal which can often lay the groundwork for the “power over” relationships with others, particularly those who are in low power positions such as elders.  Following on this thread, the American Humane Society has identified connections between animal cruelty and human violence.

Effort is Needed to Improve and Streamline the Collection of Data and the Study of Elder Abuse

The study of elder abuse – encompassing its variety of forms and definitions – is still in its infancy.  The Urban Institute’s research report from June 2016, What Is Elder Abuse? A Taxonomy for Collecting Criminal Justice Research and Statistical Data, notes that there is no uniform, national-level definition of elder abuse because the response to elder abuse has occurred primarily at the state and local level.  The report’s proposed taxonomy seeks to grapple with the disconnect between estimating the incidence of elder abuse nationwide when there is such a wide variation in definitions of elder abuse among the states, not to mention how these incidences of such events or crimes is reported among the states.  The report looks at the many layers of elder abuse in terms of what types of acts constitute elder abuse; what kinds of people are the victims; what is the relationship between the perpetrator and the victim; when is elder abuse a crime or not a criminal offense, and why it is important to collect data concerning reports which fall below the threshold of elder abuse.

The fact that the study of elder abuse  – as a form of interpersonal and often domestic or intimate partner violence – is in its infancy does not mean, however, that there are not valuable and helpful resources available, such as these resources from the National Center for State Courts’ Center for Elders and the Courts, which offer educational information for laypersons as well as proposed standards for state courts to improve the courts’ ability to recognize and effectively respond to victims of elder abuse, as well as offering guidance to guidance to and effectively prosecution of these offenses by law enforcement.

The Troubling Intersection of Domestic Violence and Elder Abuse for Elder Women

One of the troubling intersections I came across in research for this post was the element that the elder woman victim may need to pay close attention to which state “system” she enters to report the abuse, as the domestic violence and adult protective service agencies operate independently and define causes of abuse differently.  I found a very helpful article on this topic published by two faculty members of the School of Social Work at Loyola University Chicago.

Fortunately, there is a developing approach to the challenge of identifying, reporting and prosecuting elder abuse which is multidisciplinary in nature.  Not all elder abuse is criminal.  For most of us practicing in the field of elder law for more than a “few years,” there was often a refrain from a law enforcement agency that the alleged abuse was not serious enough (or not a large sum of money involved) to warrant prosecution and so was “a civil matter.”  I remain concerned that there is a wide gulf between what is sufficient to activate the criminal prosecution of elder abuse and how the civil law (including probate proceedings) can provide applicable and appropriate relief to the fullest extent appropriate.

I believe the best policy is to have persons unsure about reporting suspected elder abuse to make the call to law enforcement so that the appropriate government authority can determine the scope of the investigation of the suspected abuse and whether it is appropriate for prosecution.  This reporting, even if it results in no investigation or subsequent prosecution, remains important for data collection purposes.  In this context, as in so many others. . ..  information is power.

© 2017 Barbara Cashman  www.DenverElderLaw.org

Dreaming Into Dying: A Practice for Letting Go

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dreaming-into-dying

Patience

I thought since last week I wrote on the topic of dreaming into retirement, well – why not take it a step further and look at dreams of the dying or dreams of death?

Research Into Dreams of the Dying

Here’s an interesting article from the New York Times February 2, 2016.  The story is about some work from a team of researchers led by Dr. Christopher Kerr at Hospice Buffalo.   The study was conducted with fifty-nine terminally ill patients, nearly all of whom reported having dreams or visions, most of which were comforting.  The article noted that

The dreams and visions loosely sorted into categories: opportunities to engage with the deceased; loved ones “waiting;” unfinished business. Themes of love, given or withheld, coursed through the dreams, as did the need for resolution and even forgiveness. In their dreams, patients were reassured that they had been good parents, children and workers. They packed boxes, preparing for journeys, and, like Mr. Majors, often traveled with dear companions as guides. Although many patients said they rarely remembered their dreams, these they could not forget.

Reading about “traveling companions” reminded me of a dream my father related to me some weeks before he passed away.

Dreams and Dying as Part of Life’s Process Toward Completion

The article and the research it discusses are remarkable because it addresses one of the taboo subjects around dying as a life process – is there preparation for it with our psyche’s assistance (through dreams or visions) and whether persons sometimes know in advance that death is imminent (notwithstanding the lack of knowledge of an illness).  Our cause and effect, materialist-objectivist obsession with measuring what we can know (or pretend to know, if enough people are in agreement) generally simply denies outright the mystery of the end of life.  But as more people die at home or with hospice and palliative care providers who are not leading a pitched against the “enemy” – collectively disease and death – it seems that we are gaining more personal experience with death and dying.  It might represent a gradual questioning or moving away from the model of technocratic dying in hospitals, where expressions of our relationship with and compassion for dying loved ones generally had to be subjected to the intrusions of our medical-industrial establishment and its protocols administered by “experts.”

A Scientific American Mind article entitled “Vivid Dreams Comfort the Dying” also explored Dr. Kerr’s work, which was published in the American Journal of Hospice & Palliative Care.  It seems that the conclusions are likely to be consistent with dreams of dying and deathbed visions and visitations recorded throughout history: that most of the time the person is comforted by the dream or vision of their impending demise, as if Psyche were assisting with the transitions as a kind of midwife.

The Experience Is More Likely to be Labelled a “Vision” if it is Comforting to the Dying Person

If the experience is upsetting to the person, typically a patient receiving hospice care, it might otherwise be termed a “hallucination” or “delirium.”  But I like the unequivocal language of this post from Crossroads Hospice about end-of-life visions:

These visions are not hallucinations or a reaction to medication. The most important thing to do if your loved one is seeing visions or having visitation dreams is to acknowledge and support them. Do not argue with your loved one about the experience, correct them, or try to explain the vision. Do not panic as that can upset your loved one. Instead, take them at their word and encourage them to share the experience with you.

“As a caregiver, it is not our job to prove, disprove, or do experiments,” says Carolyn. “We are there to provide support and comfort.

In most cases, these end-of-life visions are indeed a source of great comfort to the person experiencing them.

It’s reassuring to know that as more people are able to die at home with support from hospice care provided, this aspect of the death taboo is losing more of its sting.  A link to one last resource guide is in order, this one McGill University called “Nearing the End of Life: A Guide for Relatives and Friends of the Dying.”

© 2017 Barbara Cashman  www.DenverElderLaw.org

 

Dreaming Into Retirement Planning

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Dreamtime Batik

I recently ran across an article by financial “coach” Chris Hogan  about the importance of having a dream to inspire us to plan for and to carry out our plan for retirement.

Hogan’s tactic is to motivate, not intimidate or strike fear. His book “Retire Inspired: It’s Not an Age, It’s a Financial Number” and if you’re interested in listening to one of his podcasts, here’s a link to that.

I liked this idea and of course it wasn’t new.  I thought of Richard Leider, the author who penned the book “Life Reimagined” in 2013 and has championed risk-taking for folks over 50 while cautioning us against being a “former” anything in retirement.  You can watch his Ted x talk about the importance of finding your purpose, particularly to motivate retired people to get out of bed in the morning.

Can we dream into our purpose when we are facing retirement?

Dreaming can, at any time or stage of our lives, help us find our place in the world and to help identify the challenges which face us.   Dreams can help us construct our own personal mythology, our story in terms of what we are here to do and how we are meant to be in this world.

I suppose it depends on how you define “dreaming “of course  – and whether we work on the dreams or they work on us.  I am rather fond of Dr. Jung’s quote from Dreams, Memories, Reflections, which he wrote when he was eighty-one:

Who looks outside dreams; who looks inside awakes.

It’s a rather slippery slope, isn’t it?  Particularly for us Americans who have always felt so strongly about being in charge of our lives.  We who know such boundaries and demarcations flowing from our sense of autonomy. Retirement forces us to think differently about what we do with the rest of our lives.  We often thing about this as a sad, backward gaze, held and nurtured for its lost glory.  But it can be a time for us to lighten our load of our thinking about our lives and about its doings.  Perhaps it can be liberation.

Leider talks about the three “M’s” of money, medicine (health) and meaning – the fundamental things that help us identify what we really need so we can be free to leave behind the other things that may simply distract us.

I think for many of us the fear of retirement, and why we are loath to plan for it, is that we don’t want to allow ourselves the space to dream because, well, it might not be what we think we “always wanted” or what was expected of us.  I think it also has a lot to do with our fear of aging in general as the run up to the inevitable end of our lives.

So what to do in the meantime?

Start dreaming, particularly your own dream, not someone else’s!  And if you don’t want to dream because it sounds too silly, then take Leider’s napkin test and see if you can pull that off!  Get together with a loved one or colleague and take “the napkin test” to discover what is really important to you, what gives you joy and allows you to feel connected to others.  Stop and reflect.  You can watch (on Daniel Pink’s website) a one minute and twenty second video featuring Leider explaining how to do this

I’ve condensed a bit of Hogan’s advice here from that Washington Post article above:

  • A secure retirement isn’t accidental;
  • Dream your dream and make a plan that will get you to that dream;
  • Execute the plan with a commitment to do what is necessary to bring it to fruition.

Lastly, here is another article by Hogan about  What do you need to do to retire with $1 million?

Happy dreaming!

© 2017 Barbara Cashman  www.DenverElderLaw.org

The Dreaded “O” Word and Aging Into Wisdom

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Old

 

I recently attended an educational lunch program put on by a financial advisor at a restaurant downtown.  It was geared to attorneys and their retirement planning needs. Most of us in attendance were “old enough” to be planning for retirement already and we had a number of questions answered.  A latecomer to the program arrived after we had finished our lunch.  He proceeded to ask our host a question about a “hypothetical 75 year old” but I suspected this colleague’s age to be well in excess of 80 years.  What really struck me however, was his use of the expression “O word” as if to acknowledge some common implied cultural unwillingness to use the term “old” as if it were a pejorative term.  I was both puzzled and troubled by this use of the term which I had never heard before, let alone from the mouth of an octogenarian!

So maybe there’s more than a few of us who simply refuse to accept this aging thing that we do, but I insist that there is a bright future for wisdom in elderhood. . . Here’s a link to a New York Times article  from 2014 about the science (from a psychological perspective) of “older and wiser” and  a short article from last month in Psychology Today entitled “Are Older People Wiser?”

Wisdom is one of the very few positive stereotypes of elderhood, but it’s of course not necessarily true.  A passive aging focused on the denial of age and eventual death does not lead to a ripeness of wisdom in one’s elder years. The jury is still out on this “older and wiser” issue, but while elders’ brains generally slow down, an elder’s experience and knowledge can make up for the shortcomings in processing speed and distractibility.  But getting to elderhood requires one to accept and even embrace our aging, learn from experience and to grow one’s knowledge along the way.  If we’re busily engaged with denying our aging, resenting that we’re “not who we used to be,” then that wisdom piece will remain elusive because we are failing to come to terms with a most basic premise of this life: the length of a life is uncertain and all we truly have is the present.

So, what is wisdom?  I liked these two definitions found at the Collins dictionary:

Wisdom is the ability to use your experience and knowledge in order to make sensible decisions or judgments; and in American

the quality of being wise; power of judging rightly and following the soundest course of action, based on knowledge, experience, understanding, etc.; good judgment; sagacity

There is also the wisdom tradition, which is synonymous with Perennialism, defined in Wikipedia as “the idea that there is a perennial or mystic inner core to all religious or spiritual traditions, without the trappings, doctrinal literalism, sectarianism, and power structures that are associated with institutionalized religion.”

So I turn to a favorite classic of literature here, Aldous Huxley’s The Perennial Philosophy, finding particularly relevant his quote of Francois Fenelon (at 257 of the Harper Perennial Modern Classics edition) to the subject of wisdom as an outgrowth of embracing the aging process as part of our experience of our selves:

Faults will turn to good, provided we use then to our own humiliation, without slackening in the effort to correct ourselves.  Discouragement serves no possible purpose; it is simply the despair of wounded self-love.  The real way of profiting by the humiliation of one’s own faults is to face them in their true hideousness, without ceasing to hope in God, while hoping nothing from self.

If we can avoid becoming overwhelmed with the discouragement of old age and its changes to us and in us, perhaps we can exercise that sagacity referred to above.  There a number of resources in the wisdom of aging category, including the late Reb Zalman Schachter-Shalomi’s book From Age-ing to Sage-ing which led to the founding of the Sage-ing International organization, which hosts workshops, webinars, conferences and other forums for fostering “spiritual eldering.”  Their website states that moving from age-ing to sage-ing involves the following:

  1. Developing a willingness to deal with life completion and overcoming the desire to stay in denial of aging.
  2. Coming to terms with our mortality.
  3. Acquiring the skills for working on the inside by practicing journaling, meditation, imaginal exercises, and spiritual intimacy by creating safe and sacred space in dyads.
  4. Paying attention to our body, feelings, mind, and spirit, being guided by them and maintaining them in the right tone, mood, and attitude.
  5. Giving  a real hearing to the inner voices – allowing all the minorities within the whole person their witness.
  6. Beginning to do life repair:
  • in health
  • in practical matters with wills and testaments
  • in relationships and between generations
  • by reaching into the past and offering release and healing
  • through forgiveness work with release from vindictiveness
  • by finding the pearls in the anxious memories
  • 7. Doing the philosophical homework by raising questions about the purpose and the meaning of our lives.
  • 8. Serving as elders to others as guides, mentors, and agent of healing and reconciliation on behalf of the planet, the nation, and the family by being wisdom keepers.
  • 9. Preparing for a serene death and afterlife, furnishing our solitude with God.
  • 10. Doing this nobly in connectedness with the inner, actualized self,  already realized, individuated, and complete.This is a formidable list, but fortunately there is assistance in the Sage-ing community for these efforts.  There are also other excellent resources which may involve a bit less introspection and life review.Jane Barton (of Cardinal Life LLC), an excellent local speaker with whom I am acquainted, has a program she has entitled “The Journey of Aging.”  Part of her programming covers the denial of death and the aging process and how that unwillingness to engage with our mortality adversely impacts our present abilities to consciously and deliberately plan for our future.

© 2017 Barbara Cashman  www.DenverElderLaw.org

Boulder Senior Law Day is Saturday, September 23, 2017

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Venetian Canal

 

The Boulder County Senior Law Day will take place this Saturday at the Plaza Event Center in Longmont, CO.  Here is their website if you are interested in registering for the event or would like more information.  There will be 20 different presentations on topics ranging from how to serve as a fiduciary or health care agent for another person; the basics of Medicaid and what you need to know; what’s “trending” in elder fraud (presented by Jane Walsh, Deputy DA from the 20th judicial district); special needs planning and many other interesting topics.  I have been asked to present on ethical wills and leaving a meaningful legacy.

I have written several blog posts on this topic, but I find something new to write about each time I return to this topic!  Most of us estate planning attorneys need to have a sharp eye for identifying potential minefields in a client’s choice of beneficiaries.  It goes without saying we must be vigilant to find ways of minimizing conflict and potential conflict among fiduciaries (agents under powers of attorney, trustee, and the like) as well as beneficiaries in assisting a client in putting together a comprehensive estate plan for managing disability or incapacity (using durable powers of attorney) and for post-mortem planning (by using a will and other available tools suited to the client’s situation).

The estate planning documents we draft for clients are legal documents and we lawyers tend to draft them in ways that are free from language regarding the testator’s (the legal term for a person who makes a will) thoughts or feelings about particular persons or things, but some important documents can help fill in the gaps or empty spaces.  One of these is an ethical will.

Another related document is what is known as a “side letter” which is focused more closely on fleshing out and providing the context for a testator’s intent concerning the rationale for distribution in a will or other estate planning document.  These “side letters” are not without risk and they will likely not be effective in swaying contentious beneficiary who holds to the belief that they have been cheated out of a larger share of an estate.

What I will be talking about Saturday are the benefits of drafting an ethical will or legacy letter to “bequeath,” if you will, the intangible legacy and values of a person’s life.  This writing can also greatly benefit the writer of the document to provide an opportunity help establish one’s own meaning of existence and to weave together the pieces of one’s life into something one might call purpose.  In today’s always-on age of constant chatter, busy-ness and noise, such an exercise of reflection can be priceless!

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Elder Abuse Detection: the Vital Role of the Physician

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Flowers in Stone

Colorado physicians are mandatory reporters under the Colorado elder abuse statute.  See Colo. Rev. Stat. §18-6.5-108(1)(a) – (1)(b).

There is typically a lot of shame and guilt around abuse or exploitation with an elder victim, particularly when the abuse is perpetrated by an adult child or family member of the elder and the elder may be reluctant to take any protective action on their own.  The elder often suffers alone and in silence and will sometimes neglect themselves as a result.  Remember that we don’t really have any firm grasp on how rampant elder abuse or exploitation is in our country due a number of factors which include: the reluctance of a victim to self-report; the variety of state law definitions of what constitutes elder abuse; and a lack of any central clearinghouse for collection of state or federal data concerning reports of elder abuse (in its different aspects).

Financial exploitation, emotional or physical abuse tend to have serious and life-shortening health effects for an elder.  Remember that a 2009 JAMA article on Elder Self-Neglect and Abuse and Mortality Risk stated that elders who have been abused have a 300% higher risk of death compared to their age cohort of those who have not suffered such abuse.  This is most certainly a health issue for at-risk elders and this fact makes it that much more important that doctors, particularly ER (or ED) doctors be trained to recognize the signs of abuse or self-neglect resulting from mistreatment.

The ER doctor sees not just the immediate physical effects or injuries of a physical abuse or emotional abuse (spiking blood pressure, increasing risk of stroke or heart attack) but they also see the effects of depression and other factors which both contribute to an elder’s isolation and vulnerability and are the ongoing results and manifestations of the elder’s victimization.

A recent Kaiser Health news article recently highlighted findings from a study in New York on increasing ER doctors’ awareness of signs of elder abuse.  Some of the training is around going behind the explanation of the injuries – usually from a fall or some other accident, and asking questions which may uncover the abuse which caused the “accident” and its injuries.  We have a long way to go to train more ER doctors to be up and running mandatory reports.  Doctors have made huge strides in recognizing other “accidents” or injuries resulting from domestic violence and child abuse and we need to have the same strides made for the detection and reporting of elder abuse.  It’s time!  We need to connect the ER doctors more effectively with the agencies involved in assisting victims – adult protection services and law enforcement agencies.

Here is an informative pdf from Florida State University’s National Prevention Toolkit on Domestic Violence for Medical Professionals. You might think it has to do with domestic violence, but it is a document that looks at each of the fifty states’ laws on reporting elder physical abuse. It identifies the reporting law for elder abuse, identifies who are the mandatory reporters (especially physicians and other health care professional) and provides some detail concerning the applicable civil and criminal statutes.

Why is it important to empower doctors with this information? An article from 2015 on physician screening for elder abuse observed:

Healthcare workers, more specifically Emergency Department physicians, are in a unique position in which they can not only screen and detect elder abuse in their patients, but also can change the abusive situation and prevent its continuation.

A brief article on emergency department care (filed under elder abuse treatment and management) urges doctors to take the time needed to assess a suspicious situation, noting that elders do not usually self-report and observing there may be concerns around balancing autonomy and safety.  Referral to APS is noted as “vital to decrease morbidity.”

Physicians and other health care professionals can provide important, necessary and perhaps life-saving medical care to victims of elder abuse.  Here is a link to a webinar on the ElderJustice.gov site to a webinar entitled “How EMTs Can Help Identify and Report Elder Abuse.”  When there is widely available training of medical professionals about how to ask and what to ask an elder on this difficult topic and there is also familiarity with available reporting units (APS or law enforcement) and sources for service referrals to assist the elder, elders in our community will be better served and the community will have another valuable resource for reporting incidents of abuse.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Are There Alternatives to Guardianship for an Elder with Dementia?

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Abacus of Glass Beads

I’m taking a look at the alternatives to unrestricted or plenary guardianship as a result of reading my latest issue of the ABA’s Bifocal magazine, in which the ABA’s House of Delegates adopted Resolution 113, urging states and other legislatures to amend guardianship statutes to consider less restrictive alternative to unrestricted or plenary guardianships of incapacitated adults and to require consideration of putting into place decision making supports that would allow a person the right to supported decision making as an alternative to (or reason for termination of) guardianship of an adult. I found the topic thought-provoking, particularly in light of a recently approved uniform law which contains many references to supported decision making.

In Colorado, an Incapacitated adult is defined our Probate Code at C.R.S. §15-14-102(5) as one

who is unable to effectively receive or evaluate information or both or make or communicate decisions to such an extent that the individual lacks the ability to satisfy essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance.

The definition comes from the Uniform Guardianship and Protective Proceedings Act, or CUGPPA in Colorado.  Below I’ll take a brief look at a continuum of less restrictive alternatives to implement in the making of decisions for persons who may be or become incapacitated (but not necessarily determined to be such by a probate court in protective proceedings).

First, I’ll note that each of these aspects of functional capacity and incapacity implicate a person’s rights to self-determination.  Self-determination is a broad topic. The principle of self-determination is prominently enshrined in Article I of the Charter of the United Nations.  It remains a concern under international law due to the fact that there are peoples who are not necessarily represented by the nation in which they find themselves.  For an adult who suffers from a progressive condition or disease process that results in cognitive impairment, there really isn’t such a stretch here to say that a person with dementia is at risk of being “colonized” or have their rights self-determination effectively erased by a legal determination of incapacity.  Here I’m talking about self-determination in the medical, and personal preferences context (concerning levels of care or autonomy, as well as choice of the setting in which one lives). The UN Convention of the Rights of Persons With Disabilities (CRPD), also speaks about supported decision making and you can read more about it here.

The medical or health care POA

I’m focusing on the medical POA here because Colorado’s protective proceeding for a person’s property is known as a conservatorship.  A conservatorship is often not necessary if a person has made effective POA naming an agent and the relationship is working and not otherwise under threat from an interloper.  But. . .  keep in mind that sometimes a non-agent family member or friend can take advantage of a person more easily if there is no court-imposed protection of the person’s property. Ah, there’s that ugly head of patriarchal protection (in the form of parens patriae, the power of the state to act as guardian for those who are unable to protect or care for themselves) again!

Bottom line is that, when people (sometimes known as “patients”) make their wishes known in advance to family members or others and empower another to decide for them as the person’s agent in a MDPOA , that empowerment alone can often lead to better outcomes.  But the fact remains that many of us choose not to choose to name an agent. So what’s next? In Colorado there are also proxy decision makers, which we might consider as “de facto” decision makers under applicable Colorado law.  So, that brings us to the next item. . .

Supported decision making – an intermediate ground . . .  or no man’s land?

This item is specifically included in the newly minted 2017 version of the Uniform Law Commission’s UGPPA, er UGCPAA (Uniform Guardianship, Conservatorship and Other Protective Arrangements Act) at §101(13) where it is listed as one of the “less restrictive alternatives” to guardianship.   In the proposed UGCOPAA, supported decision making means “assistance from one or more persons of an individual’s choosing” (§102(13)); and is added to the end of the above stated definition of incapacity – to read “unable to effectively receive and evaluate information or make or communicate decisions, even with appropriate supportive services, technological assistance, or supported decision making” (§301(a)(1)(A)); is an appropriate consideration for a court visitor to include in the report (§304(d)(2)); for inclusion in the court’s order appointing a guardian (§310(a)(1)); as one of the rights retained by an otherwise incapacitated adult, to “be involved in health care decision making to the extent reasonably feasible. . .  (§311(a)(3)); and in other examples perhaps appropriate for a later blog post. . . .

What are some standards for supported decision making, which is related to “person centered” planning (now part of the Medicare rules, incidentally)?

This alternative sounds all well and good Barb, but what about those elders with dementia whose cognitive impairments are likely to worsen?  Is it realistic to devise a plan for this supported decision making?  After all, those folks are arguably in a situation different from developmentally disabled adults who may can live independently and working in the community, so long as there are community supports.  But I think this is a less restrictive alternative that is seriously underutilized due to the simple fact that people aren’t used to the idea and it is challenging to identify what it might entail and look like in an alternative to probate court protective proceedings or as part of a court’s order granting a limited or restricted guardianship.

Limited guardianship

This one is pretty self-explanatory.  Only certain identified matters are under the authority of a court-appointed guardian and the rest of the rights are reserved to or preserved in the “ward.”  The tricky part with this is an important detail – scarce judicial resources.  Most courts are not anxious to re-examine how supported decision making or a limited guardianship is working and re-tool it as needed.  Most courts have a difficult enough time simply monitoring those guardians!

Plenary or unrestricted guardianship

This is the norm in this country, regardless of lip service in statutes or case law concerning less restrictive alternatives.  But if we are to truly attempt to accomplish guardianship reform, we (courts, elder law attorneys, service providers and other resources) must work together to fashion a viable alternative to what has become the quick and dirty, default request in a guardianship proceeding involving an elder with dementia who may be in the future or already is “incapacitated.”  Stay tuned for more on this topic in the future.

© 2017 Barbara Cashman  www.DenverElderLaw.org

New Proposed Federal Legislation to Combat Elder Abuse

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Italian Ceiling

 

The Elder Abuse Prevention and Prosecution Act (S. 178), passed the U.S. Senate on August 1, 2017.  You can read the text of the bill here.  It was sponsored by a bipartisan group of Senators.  It has moved to the House of Representatives for their review.

This bill has several important provisions which would support more federal involvement in areas of elder abuse and financial exploitation reporting and prosecution.  Some of these include: training federal law enforcement (FBI) in elder abuse detection; coordinating data collection and establishing best practices for data collection and sharing among local, state and federal agencies involved in reporting and prosecuting elder abuse; enhancing the services available under the U.S. Department of Justice’s Office for Victims of Crime so as to specifically include those aged 60 or older; imposing an enhanced penalty for those convicted of the specifically defined telemarketing or email marketing fraud under the federal telemarketing fraud statute; and some efforts directed toward guardianship oversight and abuse prevention.  The only problem with all the great things that this proposed new law could do is that there is no money allocated for its proposed activities.  If the bill makes it through Congress and is passed into law, it will be in a situation similar to the 2010 Elder Justice Act, many substantive parts of which lack funding for its important work.

Notwithstanding the important fiscal detail, it is important legislation in several ways that can help coordinate the woefully inadequate means of reporting elder abuse.  The federal government could help to standardize the definitions of elder abuse for the purpose of getting a clearer picture of its prevalence for reporting purposes.  Every state has its own laws and definitions concerning its elder abuse  detection and reporting  standards and some of these vary wildly, making the standardization of reporting incidents of elder abuse that much more difficult.

The federal government’s involvement here could assist greatly in getting a better idea of just how prevalent are certain types of elder abuse.  At the present time, there are numerous difficulties figuring out these important details and this obviously can interfere with the allocation of resources needed to adequately respond to the worsening problem of elder abuse and exploitation.

The numbers concerning the incidence of elder abuse and exploitation are already sickening to consider and they appear to be rising.  It is of critical importance to have adequate support for prevention and prosecution to combat this.

The bill has been endorsed by the bipartisan Elder Justice Coalition,  the American Bar Association and  the Consumer’s Union, among other groups.

If you think this legislation sounds like a good idea to help elders and their loved ones, then by all means be sure to contact your U.S. Congress member and share your opinion about this important legislation!

Stay tuned for a blog post about another piece of proposed legislation which has been introduced in the U.S. House (H.R. 2505) and Senate (S. 1151) known as the Credit for Caring Act of 2017.

© 2017 Barbara Cashman  www.DenverElderLaw.org

 

Financial Empowerment for Elders

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The Mighty Tiber

I’m privileged to be the invited speaker for Denver City Councilwoman Kendra Black’s “Senior Series” program tomorrow morning on the topic “Financial Empowerment: Planning for Longevity.”  I hope it will be a lively Q & A session with the participants!

So what is this empowerment anyway? Merriam Webster’s online defines empower as:

transitive verb: (1) to give official authority or legal power to; (2) enable; and (3) to promote the self-actualization or influence of.

Empowerment has at least a couple layers here, but for my purposes in educating and assisting elders who are living longer and in greater number than ever before, the most important aspect is the “give legal power to” in the first definition.

What I’m thinking of are documents like durable powers of attorney – both medical and general (financial) as well as other documents like a living will, a disposition of last remains and other similar documents.

Modern estate planning traverses two different “time zones” if you will – both the longevity scenario which covers the incapacity and disability side of life among the living, particularly for a long life, as well as the other side of life, or what happens after someone passes away.  Empowerment can and does often involve both of these time zones, but it is critical that the first time zone be discussed and planned for because the longer we live, the greater our chances of being incapacitated (for short or longer term periods).  Empowerment here means a conversation not just about the inevitable (death) but also about what one’s preferences are in the event one cannot speak or communicate on their own.  But it also means enlisting support from our loved ones and friends, as well as our community, in the event we need help, support or protection.

That is a big part of what I will be addressing tomorrow.  The more we talk about these important matters, the easier the conversation becomes.  Some of these topics, like elder abuse and financial exploitation by adult children or caregivers, are still quite difficult to talk about – but they are necessary conversations!

I’ll be sure to share in a later post about what some of the participants concerns were and what we discussed.  In the meantime, I hope to see some of you at the Eisenhower Recreation Center (4300 East Dartmouth Ave., Denver) tomorrow at 10 a.m.!

© Barbara E. Cashman 2017   www.DenverElderLaw.org