Dementia and Legal Capacity Archives - Page 2 of 4 - The Law Office of Barbara E. Cashman

When and How Should Someone Report Suspected Elder Financial Abuse or Exploitation?

Date January 26, 2017

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Safety in Numbers

My posts about reporting elder abuse remain my most popular among readers and since it’s been a while since I’ve written on the topic, I thought it was time! I get regular calls from people about this question, often from adult children who are concerned about what is going on with a parent. Plus, I listened to a webinar put on by the ABA last week about recognizing and preventing these scams. Today I’m focusing on federal programs and resources. Here’s a link to the US Department of Justice (DOJ) Elder Justice Initiative to get started.

Among the presenters at the webinar were a representative from the Consumer Financial Protection Bureau (CFPB) and a prosecutor from the US DOJ Civil Division’s Consumer Protection Branch. I mention these two federal resources because most of us tend to focus only on local or state law enforcement when it comes to reporting suspected financial abuse or exploitation of an elders. One other recent detail popped up on a listserve recently, reporting a scam concerning what was represented to be an “escrow company” to the victim and who told her they were assisting in the sale of her time share in Mexico. Apparently tens of thousands of dollars were cumulatively wired to the scammers, for the purported purpose of covering taxes and transaction fees. I searched online and found several posts about these types of scams that sound like perfectly legitimate businesses. One of these scammers was using the name of a legitimate Colorado business. Couple this with a scammer’s ability to “spoof” a phone number on the recipient’s caller ID, and it’s a pretty dangerously convincing mix!

The scammers are as familiar as the rest of us with the adage “if it’s too good to be true it probably is,” but some of these scams persist, coming in many new and different forms. The more troubling scam scenario however is the much more legitimate sounding scam, which doesn’t purport to be a “sure thing,” but instead rely on a common human tendency toward “in for a penny, in for a pound” behavior, or what economists refer to as sunk cost fallacy and psychologists call commitment bias.

Many of these scenarios involve mail fraud and wire transfers. Read a recent press release from the DOJ about actions concerning mail schemes targeting by foreign nationals. Last March, the CFPB issued an advisory and a report with recommendations for best practices for banks and credit unions on “how to prevent, recognize, report, and respond to financial exploitation of older Americans. Financial exploitation, the illegal or improper use of a person’s funds, property or assets, is the most common form of elder abuse and costs seniors billions of dollars per year.” The Advisory, which contains recommendations concerning the development of internal controls for the protection against and reporting of exploitation, training of staff to prevent , detect and respond to elder financial exploitation and using appropriate technology for the detection and reporting to local, state and federal authorities, is available here. The executive summary of the CFPB’s report begins with an important message:

Elder financial exploitation has been called the crime of the 21st century and deploying effective interventions has never been more important. Older people are attractive targets because they often have assets and regular income. These consumers may be especially vulnerable due isolation, cognitive decline, physical disability, health problems, or bereavement. Elder financial exploitation robs victims of their resources, dignity and quality of life—and they may never recover from it.

You can read more of the report here.

There are many ways that scammers defraud elders and some of these include Medicare, Medicaid and health insurance fraud (which is akin to a form of identity theft), IRS and tax scams, mail fraud and internet scams involving “sweethearts” and online dating, sweepstakes and lottery “winnings” and tech support scam. The Justice Department also has a helpful roadmap identifying what type of scam and which federal agency to which it can be reported.

One valuable thing for people to consider in reporting an incident of suspected elder financial abuse and exploitation is this: a single victim may not have suffered a devastatingly huge loss, relative to their life savings perhaps, and it may even have been a relatively small loss, but if it is multiplied among a range of victims nationwide, what the scammers take can amount to millions of dollars. This is why reporting remains critically important. We are charting new ground here as many facts and figures about the incidence and forms of elder financial abuse and exploitation remain unknown due to underreporting.

That’s all for now.

Dementia and Its Disproportionate Impact on Women

Date January 5, 2017

Posted by Barb Cashman

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Italian Doors

I read with interest Heather Snyder, Ph.D.’s blog post from December 28, 2016, titled “Alzheimer’s Falls More Heavily on Women Than on Men.” She is Senior Director of Medical and Scientific Operations at the Alzheimer’s Association and suggests that effective approaches to preventing, diagnosing and treating Alzheimer’s and other forms of dementia (I collectively refer to these as AD for convenience) will likely be tailored to a variety of factors which include genetics, hormones and lifestyle – which involve gender.

The National Institute on Aging observes that Alzheimer’s disease is currently ranked as the sixth leading cause of death in the United States, but recent estimates indicate that the disorder may rank third, just behind heart disease and cancer, as a cause of death for older people.

Awareness of this important detail is lagging! According to an Alzheimer’s Association blog post, women in their 60s are about twice as likely to develop AD than are breast cancer. That 1 in 6 chance for a woman to develop AD at 65 compares with a 1 in 11 chance for men. A recent study shows that a person with a particular gene variant, ApoE4, which both men and women may carry, poses a markedly higher risk of the disease to women than men.

Observation, as anecdotal evidence, might suggest that because women tend to live a few years longer than men, they are more likely to have dementia, but this doesn’t hold water. Dementia, and AD in particular, is a disease that tends to last a number of years and the majority of person affected by the disease are older, er. . . old – meaning 60 “or better.” The number of people affected by early-onset AD is less than 5% of all persons affected and most of those persons have the familial AD. But what causes AD in the remainder of the persons with early-onset AD and the vast majority of older persons diagnosed by the disease remains unknown.

You might have heard the news in late November about a highly touted AD drug, which had looked promising in clinical trials, showed little promise to significantly slow the decline of dementia caused by the buildup of amyloid plaques as indicative AD. The latest difficulties will certainly move this field forward and trials of another amyloid-targeting medication are due later this year.

Here is a video about a Swedish photographer’s project, Into Oblivion, which shows poignant pictures of French residents (mostly women) living with AD behind locked doors. Yes, there is French spoken in the video, but the pictures speak for themselves. In our country of course, most of us don’t refer to this living arrangement as a “protective unit” or “lockdown,” we choose instead to refer to it as “memory care,” as if living in a secure unit implied care for a failing memory! It raises the ethical issue about whether confinement is care.

I’ll be writing more on those ethical discussions surrounding care of persons with AD.

Dementia and the Growing Prevalence of Elder Abuse

Date December 7, 2016

Posted by Barb Cashman

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Not Winter Flowers

I was reading a list serve post yesterday that told of the member’s father (a retired attorney in another state) who got a call from a scammer claiming to be an attorney working on behalf of a grandchild in trouble with the law. The post was essentially a “heads-up” kind of post to a new mutation on the old long lost grandchild scam. You can read an article about how that scam works from the perspective of the scammer here. Sadly, some other members of the list serve community reported a couple instances of this one when it worked successfully, relieving the loving grandparent of a sum of money. One such scam was traced to a caller in the Ukraine! If it sounds like it might never happen to an elder you know, think again – these folks are quite sophisticated.

This is an introduction to some news that I recently read about our neighbors in the UK: Dementia is the leading cause of death in England and Wales. Read the BBC News article here.

This means that as other health challenges are effectively managed throughout one’s old age, dementia remains in the background so to speak, a silent killer. It’s no surprise that the bulk of these dementia deaths were of women, as women tend to have a longer life span than men. What I thought was particularly interesting was this figure: Dementia, including Alzheimer’s disease, accounted for 15.2% of all female deaths, up from 13.4% in 2014. Is this due to more effective means of diagnosing Alzheimer’s (which ordinarily must be done with a brain autopsy or at least a slice of that organ’s tissue to identify those amyloid plaques)? Or is it due to an actual rise in the number of persons afflicted with the disease, as demonstrated in the graph in the article which shows it steadily overtaking heart disease since 2012?

Dementia is a leading side effect if you will – of our longevity. This news doesn’t just impact our health and longevity of course, factors mightily in the need for further raising the awareness of elder abuse. Folks with dementia are likely to be victims of some form of elder abuse, neglect or exploitation. The burden on the rest of us to be able to detect elder abuse is crucial to our collective well-being. The community plays a foremost role in the detection of elder abuse in its many forms and so community members – through meals on wheels volunteer, peers at a community center or members of a faith community, can play a major part in this effort. I don’t want to minimize the importance of prevention, but I think our awareness needs to focus first on the detection of the myriad forms of elder abuse.

My introduction to this post was about a scam by someone posing as a person assisting a grandchild – but most of the reported cases do not involve “stranger danger” as it is called in the child welfare context. Sadly, when the abuser or exploiter is an adult child or other family member (as the vast majority of such cases appear to be) the elder is faced with a difficult choice indeed because their ability to be maintained in their own home is severely compromised. We have some battered women’s shelters, but no emergency housing for abused elders. We simply must be able to move forward with the development of services for at risk elders and design some kind of basic architecture of supportive services. Right now, everything is dependent on where an elder lives. How many community resources there are largely depends on local and state funding because whether the detection resources, such as law enforcement and adult protection services, are adequately informed to detect elder abuse – makes a huge difference.

Here’s a link to a very informative program from Nashville Public Television. Especially as we tout “aging in place” as the best kind of living arrangements for most elders, we must face what that can mean for them and the risks it can pose. We must respond to this call for being present to our elder community members! I will write more about what looks to most of us to be a challenging landscape of familial relations and unfamiliar ethical territory.

Successful Elderhood, Autonomy and Driving

Date September 28, 2016

Posted by Barb Cashman

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Columns of Support

Last week I was driving from my office in Littleton to my dental appointment in southeast Denver. I took a familiar route, proceeding down the twists and turns of Monaco Parkway as I proceeded north of the Denver Tech Center. I’m not in the habit of recounting my driving experiences in these blog posts, but that afternoon was different because I called 911 while underway. . . . There was an elderly driver who was driving in the parallel northbound lane alongside me for several blocks and then he moved over (negotiating the median in a sort of left turn) to the southbound side of the parkway as he proceeded northbound (at 30 mph or better). Luckily there were no cars for the four or so blocks he drove down the wrong side of the parkway, so a head-on collision was avoided. He corrected himself and ended up driving behind me for several more blocks before turning off from Monaco Parkway. I didn’t think it was a drunk driver – I suspected it was a confused driver. Just a couple days before a colleague from one of my listserves had asked me about what could be done regarding contacting someone about an elder he knows who has much difficulty operating a motor vehicle. This is a tricky matter! He forwarded me the email he received from the commander of the metro district for the Colorado State Patrol, which advised him to

Dial *CSP(277) from a cell phone if you observe dangerous driving behavior. Of course, if the situation rises to the level of an emergency, you can always dial 911. These situations are particularly difficult as pro-actively requiring a person to submit to a re-exam for their driving privilege can only be initiated by a family member or a physician. Law enforcement can make the request but only after observing driving actions that would support the need.

I was reminded of the 14-year-old boy who was killed in southeast Denver by an 81-year-old driver with a history of driving problems. This issue of when it is time to turn over the car keys is a difficult one for many elders as well as their family members because alternative transportation arrangements are required to get the elder to the grocery store, appointments and other places. Many elders will not willingly give up their car keys and sadly, it often takes a crisis or an accident for the elder and family members to realize driving is no longer a safe option for the elder.

One of the other factors (besides requiring alternative transportation for a car-less elder) contributing to the difficulty of determining when driving is no longer safe is the challenge of getting a diagnosis of dementia. This fear of such a diagnosis is shared by elder and family members – which is why I have referred to dementia as being “contagious” in the sense that we are all afraid of it – for the elder and for ourselves as family members.

So when do we decide and how do we decide, as individuals, families and communities – when we are no longer able to safely operate a motor vehicle? Do we tenaciously cling to our badge of independence? A Rilke quote comes to mind here:

The transformed speaks only to relinquishers. All holders-on are stranglers.

From: Uncollected Poems by Rainer Maria Rilke, translated by Edward Snow, 1996.

What part of our identity as autonomous persons is our ability to be able to drive? This concern with safety is a distinct one because it involves operating a car and all the dangers that poses to the drivers and others on the roads (or sidewalks). Here is a recent article which addresses the challenges to driving a car which are faced by the growing number of persons diagnosed with Alzheimer’s Disease. How do we negotiate the changes in our lives and our ability to manage for ourselves as we age? These questions do not have easy or even simple answers, but we must nonetheless grapple with them! I think another poem is in order. . .. this one entitled “Sunset:”

Great carnal mountains crouching in the cloud

That marrieth the young earth with a ring,

Yet still its thoughts builds heavenward, whence spring

Wee villages of vapor, sunset-proud. —

And to the meanest door hastes one pure-browed

White-fingered star, a little, childish thing,

The busy needle of her light to bring,

And stitch, and stitch, upon the dead day’s shroud.

Poises the sun upon his west, a spark

Superlative,—and dives beneath the world;

From the day’s fillets Night shakes out her locks;

List! One pure trembling drop of cadence purled—

“Summer!”—a meek thrush whispers to the dark.

Hark! the cold ripple sneering on the rocks!

E. E. Cummings (or e.e. cummings, if you prefer)

I will write more on this topic soon.

Let’s Raise Awareness About Elder Abuse!

Date June 29, 2016

Posted by Barb Cashman

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Moonlight Near Westcliffe

For this last post of June, I wanted to circle back on the importance of raising awareness of elder abuse. You can read the Presidential Proclamation on June 15, 2016, for World Elder Abuse Awareness Day right here and if you’re curious about the language of the Elder Justice Act, passed as part of the Affordable Care Act (as Title VI subtitle H, §§6701 et seq.), read this link.

In Colorado, as in nearly all other states, adult protection units are responsible for the reporting and investigation (along with law enforcement agencies) of elder abuse. The Elder Justice Act is federal legislation which requires the U.S Department of Health and Human Services “to oversee the development and management of federal resources for protecting out seniors from elder abuse.” Additionally, the U.S. Department of Justice is charged with taking action to prevent elder abuse.

The effective coordination of these county, state and federal efforts is of course a work in progress. What we do know about raising awareness of elder abuse and exploitation is that it will lead to more reporting of such abuse. Here is a link to a recent article in the Sacramento Bee which links the raised awareness of such abuse to a dramatic increase in reports to local law enforcement. This is important to bear in mind as the baby boomers begin to become a greater proportion of the cohort affected by elder abuse and exploitation. In my practice, I have unfortunately become familiar with national and international internet scams which relieve elders of their hard-earned retirement money. This is a particular area in which the federal government might play a unique role as so much of our law of the internet is based in federal law.

Another tragic side effect of the victimization of elders, besides the shame, victimization and impoverishment which results from financial exploitation is that these elders, along with elder victims of all types of elder abuse – including physical and sexual abuse – are likely to die much sooner than their peers who were not victimized. But many pieces of this puzzle remain unidentified due to the lack of long term studies which collect valuable statistics about elder abuse of various types! This is of course another aspect of the importance of raising awareness. Because so much of elder abuse still remains unreported, this is a major quality of life challenge not just for elders and their loved ones and community, but also for those of us of “a certain age” who might be looking forward to a safe and meaningful elderhood. How can we make things better for elders at risk now and in the future?

What is elder abuse and who are its primary victims of such elder abuse? By the numbers, they are largely women and the “old” of the elder population – meaning folks over 80. Sadly, the vast majority of the abusers are family members of the elder or trusted friends or advisors. Because most elders live in the community – not in institutions – this is a particular challenge for all of us who are community members to become familiar with the signs so that we can report concerns about safety, suspicious behaviors and the like to local law enforcement.

First – what are the kinds of elder abuse that we’re talking about? Here is a helpful listing from the U.S. government’s Administration on Aging website, which also has many helpful resources:

Physical Abuse—inflicting physical pain or injury on a senior, e.g. slapping, bruising, or restraining by physical or chemical means.
Sexual Abuse—non-consensual sexual contact of any kind.
Neglect—the failure by those responsible to provide food, shelter, health care, or protection for a vulnerable elder.
Exploitation—the illegal taking, misuse, or concealment of funds, property, or assets of a senior for someone else’s benefit.
Emotional Abuse—inflicting mental pain, anguish, or distress on an elder person through verbal or nonverbal acts, e.g. humiliating, intimidating, or threatening.
Abandonment—desertion of a vulnerable elder by anyone who has assumed the responsibility for care or custody of that person.
Self-neglect—characterized as the failure of a person to perform essential, self-care tasks and that such failure threatens his/her own health or safety.

And what about the warning signs of elder abuse which we can be more aware of?

Bruises, pressure marks, broken bones, abrasions, and burns may be an indication of physical abuse, neglect, or mistreatment.
Unexplained withdrawal from normal activities, a sudden change in alertness, and unusual depression may be indicators of emotional abuse.
Bruises around the breasts or genital area can occur from sexual abuse.
Sudden changes in financial situations may be the result of exploitation.
Bedsores, unattended medical needs, poor hygiene, and unusual weight loss are indicators of possible neglect.
Behavior such as belittling, threats, and other uses of power and control by spouses are indicators of verbal or emotional abuse.
Strained or tense relationships, frequent arguments between the caregiver and elderly person are also signs.
Changes in the elder’s personality or behavior, especially if the elder becomes withdrawn or despondent, questions to her or him can be very important in identifying a situation which may be the cause of the elder’s silent suffering.

Lastly, here is another helpful self-help resource specifically for Colorado residents – from Colorado Legal Services. That’s all for now – but don’t forget . . . . Denver’s Senior law Day is coming up on Friday July 29, 2016 and will be held at the Denver Police Protective Association’s Event Center. More details later.

Competency and Longevity: A Brief Look at the Sorensen decision

Date March 11, 2015

Posted by Barb Cashman

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Yesterday morning I attended the Colorado Guardianship Association bimonthly education program at Porter Place. It was an excellent panel on a very interesting topic: The Sorensen case and issues related to capacity and competency in the context of different types of litigation (domestic relations, probate, criminal and general civil matters). The three well-versed presenters were Ginny Frazer-Abel, Tammy Conover and Rick Spiegle.

The Sorenson case (In re Marriage of Sorensen, 166 P.3d 254 (Colo. App. 2007) is an important case relating to the protection of a person’s rights in a dissolution of marriage proceeding. The case concerned the limits of the trial court’s discretionary authority to appoint a guardian ad litem (GAL) for a spouse allegedly suffering from a mental illness during a domestic relations proceeding.

Let’s dispense with a definitional detour first – what is a GAL? Black’s Online Law Dictionary (2nd ed.) defines guardian ad litem (GAL) as follows:

“The party the court deems responsible for an incapacitated, handicapped, or minor in court.” Black’s goes on to defines “ad litem” as meaning “for the suit; for the purposes of the suit; pending the suit.” Thus, a GAL is responsible for an incapacitated person during a suit or case. A GAL can work on behalf of an incapacitated adult, someone deemed incompetent, or a person under a legal disability, like a minor.

Back to Sorensen. . . .

After going through two different attorneys in the dissolution matter (wife’s first attorney moved for appointment of a GAL based on mental health concerns) and a third retained for post-decree proceedings, the Colorado Court of Appeals held that

A court should appoint a guardian ad litem for a litigant when the court is reasonably convinced that the party is not mentally competent effectively to participate in the proceeding. People in Interest of M.M., 726 P.2d 1108, 1118 (Colo. 1986); see C.R.C.P. 17(c). That rule states, in pertinent part that “[t]he court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.”

In re Marriage of Sorensen, 166 P.3d at 256. The decision noted the exceptional circumstances and also discussed Colorado Rules of Professional Conduct 1.14 in such a scenario, noting that the rule permits an attorney to seek appointment of a GAL where an attorney reasonably believes that the client is unable to act in his or her own interests.

The procedure and circumstances under which a GAL is appointed vary according to the circumstances in which the appointment of a GAL is sought and the nature of the proceedings affecting the person about whom there is concern for competency or capacity to make decisions. The legal context is important because it often has direct bearing on the extent to which a person is able to fully participate in and comply with legal proceedings affecting that person’s rights. When an attorney represents a client, many duties are owed to that client, and our ethics rules, the Colorado rules of Professional Conduct, provide the rules of reason for the appropriate minimum standards for attorney conduct. This makes it a bit tricky when an attorney represents someone who, the attorney may come to learn and reasonably believe, lacks the ability to understand the choices presented by the legal proceeding involved as well as the consequences of such choices.

As described in the quote from Sorensen above, when an attorney suspects that his or her client is lacking in capacity or competency to make decisions, there are a number of difficulties which must be overcome, including the duty of confidentiality, which looms large in any revelation by a motion to a court that a client (or party to a proceeding) needs an appointment of a GAL to represent the person’s best interests. Ginny Frazer-Abel insightfully observed that when an attorney suggests that their client needs a GAL, the attorney usually gets fired! This is indicated by the Sorensen case as well.

So what does an attorney need to demonstrate to a court to get a GAL appointed for someone who needs assistance (but may not realize it or may reject such help)?

For a client or potential client who is incapacitated, that special rule of professional conduct (1.14) applies where the attorney may need to take measures to protect the person’s interests. One of these measures might include seeking the appointment of a GAL or it could include a range of other protective actions when a client or prospective client appears to be unable to act in his or her own best interests. Some of the ways in which incapacity and competency are addressed in different areas of law include in the probate context:

Incapacity such that it is appropriate for the appointment of a guardian for an incapacitated person;

Inability to manage ones finances such that the appointment of a conservator is appropriate;

Both of the above considerations consider a person’s functional capacity to perform various activities of daily living.

Competency also factors into criminal proceedings in which a defendant may suffer from an impaired mental condition which prevents (prevented) the person from forming the requisite “mens rea” or culpable intent that is an essential element of a crime. This is addressed in the article pertaining to insanity under the Colorado Code of Criminal Procedure, at Colo. Rev. Stat. §16-8-102 et seq.

What kind of report does it take to get a GAL appointed for someone? Here I am talking about an adult, a person presumed to have legal capacity, who may be demonstrating to their attorney or a party to a matter that the person is in need of protection because there are difficulties in processing information or otherwise behaving in ways that indicate they are making their own considered choices.

The kinds of evaluations performed by medical and mental health professional vary considerably and typically depend on the context of the court as well as the type of proceedings in which a person is involved. For example, a person who is the subject of a guardianship proceeding will typically undergo an exam that is much different from one performed where a person is a defendant on a criminal charge. It is crucial to note that there are many problematic issues around mental illness, and there may be other domestic relations proceedings (like Sorensen) in which there is a long term marriage and the person on whose behalf a GAL is sought stands to lose many things to which they might otherwise be entitled. The procedures and presumptions between probate proceedings relating to incapacity or lack of competence to manage financial affairs are often at odds with procedures and presumptions in the mental health context. Stay tuned for more on this particular topic. . .

©Barbara Cashman 2015 www.DenverElderLaw.org

Denver Botanic Gardens

Ballroom Dancing, Delight and Dementia Prevention

Date February 25, 2015

Posted by Barb Cashman

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Dancing With Heart

Say what? You mean that social dancing makes you smarter? Why yes, smarter in the sense of maintaining what we’ve got as we grow older. I liked this article entitled Use It or Lose It: Dancing Makes You Smarter by Richard Powers. Dancing might seem like a frivolous activity, but in fact it is fabulous means for the brain to integrate several of its functions at once. These functions include kinesthetic, musical, emotional and rational. Ballroom dance is what I am focusing on because I am pretty new to it, but other forms of dance are great as well. We’re talking about improving mental acuity by creating new pathways. Isn’t that what we’re after in this whole longevity-obsessed, youth-adoring culture of ours? We don’t really want to do the same exact thing (like crossword puzzles or Sudoku) for the rest of our lives do we? At least a few of us are here to enjoy what we’ve got – I’m pretty certain about that. At least one centenarian has attributed her longevity to ballroom dancing. Another dancing centenarian observed that ballroom dance has kept him young at heart. Finally, there is the 94 year old yogini (a female yoga practitioner) who observed yoga is the dance of the spirit. Ballroom dancing is the physical awareness that comes from the joy within us. I wholeheartedly agree with her about ballroom dance and joy. I can’t imagine having an awful time on a dance floor!

Not that it isn’t fun to engage in your favorite mental or physical activities, like reading, playing golf or working puzzles, but frequent dancing was #1 in a study published in the New England Journal of Medicine about recreational activities and mental acuity in aging and reducing the risk of dementia. Here’s another article about “waltzing your way to longevity and better health.”

You might think that ballroom dancing is predictable patterns . . . that is, if you had never really learned how to ballroom dance! Ballroom dance is a form of human communication that is variable and unpredictable, in addition to being highly personalized. Yes, you may think of the highly choreographed Fred and Ginger dances, but most ballroom dance is “freestyle” meaning it is not choreographed or predictable.

Okay, I should mention this post is in honor of my all day activity last Saturday at the Marriott City Center grand ballroom – the Arthur Murray Colorado Showcase dance competition. Yours truly danced a total of nine dances including a waltz solo, along with fox trot, tango, merengue, rumba and a few more. This is the delight part of the post! I performed (with my partner) a choreographed solo and the rest of the dances were “freestyle” meaning that leader and follower have to pay attention to each other’s cues and make split second decisions. . . . together! Social dancing (like at my Arthur Murray studio in Lakewood) means you have different partners, which means different communication, leading, following and dancing styles. Yes, it keeps you on your toes!

Last week I received my latest issue of Scientific American Mind and it has an article entitled The Healing Power of Music, which discusses new therapies that are using rhythm, melody and beat to help people with brain disorders and injuries to recover language, hearing motion and emotion. Music engages people because it is enjoyable, it makes us happy (read: it initiates changes in the distribution of neurochemicals that can improve mood and calm us, allowing for healing) permits synchronization (by tapping along) and it is, of course – social, meaning it can be a collective and not simply an individual experience. Perhaps this is another key to ballroom dance’s reputation as a means of promoting joy and social connection to others.

One last thing, I promised my dear friend Beth, who got me to try out dancing at her studio a few months back (and I have been hooked since), that I would participate in her fund-raising effort for Team Not For Sale, by making donations for my solo and freestyle dances at the Colorado Showcase as she was to planning to make for her own dances. Team Not for Sale has many professional sports figures (Beth is a huge baseball fan, while I am not a fan of any sports team . . . ) but its focus is to raise awareness of human trafficking, slavery and exploitation and to prepare people affected by exploitation to enter the workforce. It is a worldwide problem and nearly all the victims of sex trafficking are women and girls. I think in this respect dance is a form of freedom, of freedom to express our joy, to raise it and share it with others, while simultaneously recognizing that many of us do not have such opportunities to freely express such joy.

©Barbara Cashman 2015 www.DenverElderLaw.org

Capacity and Incapacity: A Broad Context for Financial Abuse of Elders (part 1)

Date October 29, 2014

Posted by Barb Cashman

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Fall Flowers at Hudson Gardens

Aging is a process. The fact is that most of us, especially my age cohort (the Baby Boomers), really don’t like to think about aging or incapacity or death. Many of us think that if we eat right and exercise, we’ll just be able keep at it until we’re “done” at some appointed time, like an expiration date. This post will give an overview of what is known in the law as capacity and incapacity and consider how these factor into financial abuse or exploitation of elders as it relates to this first installment – testamentary capacity (capacity required to make a will).

Lawyers who practice in the field of estate and elder law need to be prepared to make assessments regarding a potential client’s capacity. The assessment are usually not so simple, but there are many different ways that the assessment can be made. Most of my colleagues are not really happy about this, but the bottom line is our rules of professional conduct require us to get informed consent from our client, which necessitates a determination of (some level of) capacity on the part of the client. A special ethics rule (read 1.14 here) applies where lawyers are dealing with a client with diminished capacity – and it is not an easy one to negotiate!

Let’s start with the basics . . . . We have to begin with a fundamental question when we take a look at the term “capacity” and ask ourselves “capacity to do what exactly?” Sure, I’ve blogged about the importance of a lawyer determining client capacity in the context of elder law ethical issues before, but I’m focusing just on capacity in this post.

This is a fundamental question because like so many other legal questions, the answer begins with “it depends . . . !” Some of the varying standards of capacity in elder and estate law can be demonstrated among these categories of capacity:

To make a will (testamentary capacity) – including a will with a testamentary trust
To designate a health care agent in a medical power of attorney
To execute a general (durable) power of attorney
To execute an advance directive (living will)
To execute a revocable (or irrevocable) inter vivos (living) trust
To make a gift to another person
To make a gift of real estate to another person (via a deed)

Why should we be concerned about capacity anyway? Isn’t there a legal presumption of capacity for any person eighteen or older? Why yes, generally speaking, a person retains capacity unless a court adjudicates a person incapacitated (typically the result of a guardianship under the Colorado Probate Code, and there are guardianships under the Veteran’s Administration as well). In fact, there is case law in Colorado which specifically states that a protected person (under either a guardianship or conservatorship or both) retains the capacity to make a will. The appointment of a conservator or guardian is not a determination of testamentary incapacity of the protected person. Section 15-14-409(4), C.R.S. 2004. In re Estate of Romero, 126 P.3d 228 at 231 (Colo.App. 2005). See also In the Matter of the Estate of Gallavan, 89 P.3d 521 at 523 (Colo. App. 2004). This court distinguished testamentary capacity from a protected person’s ability to make an inter vivos trust, which the Gallavan court held was a right vested in the protected person’s conservator. Id.

A person has testamentary capacity if he or she is an “individual eighteen or more years of age who is of sound mind.” Colo. Rev. Stat. 15-11-501. So if the testamentary capacity standard seems to be the “basement” (the lowest level) as to what level of capacity is required, what measures can be taken to ensure that a will is reflective of the wishes of the deceased testator (will maker)? First off, the attorney needs to be sensitive to capacity concerns of elder or ill clients, particularly to safeguard a later reasonably foreseeable challenge to capacity and also so as not to facilitate an at risk elder from being exploited by another person. This is seldom an easy matter and it requires sensitivity based on information gathered by the attorney about the elder client’s situation, particularly when the elder is sick, in the hospital or otherwise unable to travel to the attorney’s office (elder law attorneys do typically make “house calls” for some clients). And of course, the attorney will be considering what types of services are requested – like changing a living trust, disinheriting a child in a will or gifting real estate to a caregiver.

The evaluations of capacity employed by attorneys vary widely – as do those used by medical professionals. The legal standard for evaluating a testator’s soundness of mind may be evaluated under either the test set forth in Cunningham v. Stender, 127 Colo. 293, 255 P.2d 977 (1953), or the insane delusion test as described in Breeden v. Stone, 992 P.2d 1167 (Colo. 2000). The case law cited here is relevant in the will contest setting – after a testator has passed away and there is a challenge to the validity of the will.

So what is it that an attorney can do to make the will she has prepared as “water tight” as possible? Colorado law no longer requires witnesses to the signing of a will (just a notarized signature), but for those of us who focus in this area of law, most agree that the best practice is to have an “execution ceremony.” I often joke about this at my final meeting with estate planning clients – that my execution garb (hooded black robe, blindfold, etc.) is at the dry cleaners . . . ! Inappropriate humor aside, an execution ceremony with witnesses is helpful because it converts the will to a “self-proving” will. The questions I ask the testator in front of the two witnesses are based on the Cunningham test referred to above, to demonstrate a person has testamentary capacity when the person (1) understands the nature of the act they are performing (making a will), (2) knows the extent of his or her property, (3) understands the proposed disposition of the property in the will, and (4) knows the natural objects of his or her bounty, and (5) the will represents the person’s wishes. Making a will “self-proving” helps because once a proponent of a will has offered prima facie proof that the will was duly executed, any contestant has the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation by a preponderance of the evidence. In re Estate of Romero, 126 P.3d at 231. Section 15-12-407, C.R.S. 2004; Breeden, supra, 992 P.2d at 1170.

There is scant Colorado case law detailing what specific knowledge is required for a testator to be deemed to know the extent of his or her property. However, the cases which touch upon this issue, including the Cunningham decision itself, indicate that it is sufficient that a testator comprehend the “kind and character of his [or her] property” or understand, generally, the nature and extent of the property to be bequeathed. Cunningham, supra, 127 Colo. at 300, 255 P.2d at 981; see also Columbia Sav. & Loan Ass’n v. Carpenter, 33 Colo.App. 360, 368, 521 P.2d 1299, 1303 (1974), rev’d on other grounds sub nom. Judkins v. Carpenter, 189 Colo. 95, 537 P.2d 737 (1975). The amount or value of the assets tends to be merely a detail. In other words, “A perfect memory is not an element of testamentary capacity. A testator may forget the existence of part of his estate … and yet make a valid will.” 1 Page on Wills § 12.22 (rev. 2003). In another installment I will continue this discussion about capacity.

To be continued . . . .

Dementia and Memory: Out of Time, Out of Mind II

Date October 15, 2014

Posted by Barb Cashman

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Mount Hope Angel

This second part of the post focuses a bit more on the qualitative aspect of memory – memory as meaningful life activity, not just a necessity of daily functioning and detail management that holds together moving parts. I will include the quote from James Hillman I used in my first post:

Why do the dark days of the past lighten up in late recollection? Is this a subtle hint that the soul is letting go of the weights it has been carrying, preparing to lift off more easily? Is this a premonition of what religious traditions call heaven, this euphoric tone now coating many of the worst experiences, so that there is little left to forgive? At the end the unforgiveables will never be forgiven, because in old age they do not need to be forgiven: they simply have been forgotten. Forgetting, that marvel of the old mind, may actually be the truest form of forgiveness, and a blessing.

Hillman, The Force of Character at 93. In case you’re wondering about whether I am promoting some Romantic view of memory or denying all the recent advances in neuroscience, I would unequivocally state “no.” In fact, a favorite of mine in that discipline is Dr. Norman Doidge’s book published in 2007 entitled The Brain That Changes Itself. Particularly instructive for purposes here is his chapter entitled “Turning Our Ghosts Into Ancestors,” about psychoanalysis as a neuroplastic therapy that helps a sixty-year-old man recover long-buried memories of the death of his mother (when he was a small child) so they could be transformed and improve his relationships and life.

I think part of what Hillman is talking about is that quality of memory, which often gets neglected in our present culture that glorifies the person as a right-bearing agent of our own destiny, valued for capacity, independence and measurable productivity. This makes me think of Massimo Cacciari’s book The Necessary Angel. I find intriguing what he says about our space-filling tendencies of this modern obsession we have with chronological time, especially where he observes that “the greatest idolatry is the cult of the has-been of the irreducible it-was.” Cacciari at 51.

If this obsession of the factual, objective or “forensic” memory is idol-worship of the “cult of the has-been,” and indeed widely and universally worshipped indeed as “chrono-latry,” then might the recognition that letting go of details that do not serve life review and accumulation of wisdom be an appropriate response to that greed, of releasing the power of the idols? If we as human beings are more than our personalities accumulating and exchanging our experiences as a form of “currency,” then recognizing this and getting past the worship of the idols of chrono-latry would look like progress!

One very important aspect of the quality of memory for many elders is as a part of life-review, of integration and wisdom acquisition and consolidation. Another of the qualities of memory is kairos. It strikes me that our generation’s dependence on smartphones means that many of us need to memorize fewer of the important operational details of our lives. This is of course liberating, but it is also a trade-off. No, I won’t go astray here to discuss that issue! Suffice it to say that the term “memoria” in the Western classical tradition is based on the Latin term for memory. Memoria was one of the five canons of rhetoric, which grew out of oratory. The classical orators used no notes, let alone Power Point slides! I add this point to draw the connection between memoria and kairos – I’ve blogged about it previously. Kairos being the right time, the opportunity, based on an attunement to the right time to recall memory – memory being identified in the Ad Herennium as “the treasury of things invented.” So perhaps we might come to more closely examine and question our relatively recent and very narrow definition of what is memory and look at the historical notion of memory in its broader context. This broader view of time in both qualitative and quantitative aspects will certainly diminish the power of the idols of chronolatry.

Yes, this reminds me of the Steely Dan song, Time Out of Mind – you can listen to it here. This is life review, traditionally a province of poets to write about the letting go at the end of a life and there is thankfully much wisdom from that quarter.

From stanza IV of Dejection: An Ode, by Samuel Taylor Coleridge:

… we receive but what we give,

And in our life alone does Nature live:

Ours is her wedding garment, ours her shroud!

And would we aught behold, of higher worth,

Than that inanimate cold world allowed

To the poor loveless ever-anxious crowd,

Ah! from the soul itself must issue forth

A light, a glory, a fair luminous cloud

Enveloping the Earth—

And from the soul itself must there be sent

A sweet and potent voice, of its own birth,

Of all sweet sounds the life and element!

Dementia and Memory: Out of Time, Out of Mind I

Date October 1, 2014

Posted by Barb Cashman

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Mount Hope Cemetery, Rochester NY

So I’m back to that rather slippery theme of memory again – this is the first of two parts. The online Merriam-Webster defines memory as: (1) the power or process of remembering what has been learned; (2) something that is remembered; and (3) the things learned and kept in the mind. This all sounds very quantitative and linear to me, right in line with most conventional thinking about memory as factual recall, that forensic memory which is objectively measurable. I think the definition of memoria from the ancient Greeks is more useful and inclusive of the human experience. Conveniently, it also encompasses the non-chronological aspect of time about which I’ve written before – kairos. We modern Americans come to think of memory in some fairly odd contexts, like computer memory and we often liken what’s in our heads to our personal hard drive as if it were some kind of data storage system – which it is of course in a very narrow sense. This also accounts for much of our recent “de-mentation” or offloading many of the factual details of our daily lives like calendars, phone numbers and emails to our smartphones. So what is the nature of memory in our minds? Is the memory of our heads different from the memory of our hearts?

The Atlantic Monthly recently featured the article “Why I Hope to Die at 75,” by Ezekiel Emanuel, physician and bioethicist. The message he states is one I have offered to clients many times: longevity has a down side, a dark side potentially in the form of a “gray area” of diminishing cognitive capacity, perceived “uselessness” and for many of us, dementia. I think the article is an important counter point to our death-denying and youth-glorifying mainstream culture that tends to view aging as a long process of descent from some place in the prime of our adult lives, along a journey where things can only get worse. But this article that states emphatically – 75 is long enough. This sounds a bit like some of my Baby Boomer age mates – who having lived through a parent’s dementia – proclaim they want an advance directive that has a box which states something like “if I get dementia and need Depends, just shoot me.” Don’t get me wrong, I applaud Dr. Emanuel’s message on several different levels in which it challenges conventional wisdom and the misplaced faith our culture has in our medical-industrial complex to keep our lives extended (not accounting for quality or purpose), but I think it misses the mark. Because babies are delivered via scheduled Caesarean section, does that mean we can cash in our chips at a scheduled time as well? I think not!

We are re-negotiating the tightrope of what we believe we control and what we do not control as it affects our lifespan in our old age (just as in any other stage of life, but perhaps with less baggage). We have become used to so many answers from the medical establishment that when we have this unprecedented number of elders facing dementia and/or incapacity, we are likely to simply “declare war,” spend lots of money and turn to big Pharma for some “fix” of our “problem.” The drug companies are more than willing to oblige and provide us with a pill to help assuage our fears, and yet another tool to interrogate the one with the slipping memory . . . “did you remember to take your pills today?” It often seems like an elder can’t exist as such without some kind of medical intervention!

Evident in Dr. Emanuel’s insightful article is the denial of the slowing down associated with old age (read the account of the aftermath of his father’s heart attack). I contrast this with what the late psychologist James Hillman wrote about in The Force of Character. In chapter nine, entitle “Leaving,” Hillman describes the conflict between his sixty-six year-old patient and her nonagenarian mother, for whom she supervised care. The patient was continually frustrated with her mother’s inability and seeming unwillingness to be principally concerned with the factual details of forensic-based (often short term because it involves daily functioning) memory. Hillman observes (at 88) that he saw this mother daughter conflict as exemplifying “the difference between short-term and long-term memory. It is as if you cannot have both at once. One has to give way to the other.” The chapter provides useful insight into the “life review” stage of elderhood which is gaining wider acceptance as a part of life, not just a loss of the familiar ways of doing from pre-retirement adulthood. I think it is one of the centerpieces of connected and engaged elderhood. Hillman closes it with the following questions, so often neglected:

Hillman, The Force of Character at 93.

This observation brings me back to the rhetorical or existential question I posed in my previous blogpost about what is remembering and what is forgetting. Hillman weaves that question into a life’s span. I will close this first post with a poem: Walt Whitman’s poem “Whispers of Heavenly Death”

Whispers of heavenly death, murmur’d I hear;
Labial gossip of night—sibilant chorals;
Footsteps gently ascending—mystical breezes, wafted soft and low;
Ripples of unseen rivers—tides of current, flowing, forever flowing;
(Or is it the plashing of tears? the measureless waters of human tears?)

I see, just see, skyward, great cloud-masses;
Mournfully, slowly they roll, silently swelling and mixing;
With, at times, a half-dimm’d, sadden’d, far-off star,
Appearing and disappearing.

Some parturition, rather— some solemn, immortal birth:
On the frontiers, to eyes impenetrable,
Some Soul is passing over.

The Complete Poems of Walt Whitman (1995: Wordsworth) at 328.

To be continued . . . .

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