Category Archives: Dementia and Legal Capacity

World Elder Abuse Awareness Day, June 15, 2017

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Face on the Rock of Cashel

This isn’t my first post about World Elder Abuse Awareness Day or WEAAD for short. It’s an annual post for me on this day – last year I looked at the “international” part of WEAAD, as well as the national (federal) focus.  This year I will focus on a local aspect – as in Colorado law that can be used to stop an abuser straightaway.

First let’s revisit the basics of what can constitute elder abuse – keeping in mind that each state has its own set of laws addressing this matter, as does the federal government.  This lack of a common definition is part of the challenge in reporting elder abuse and identifying the numbers of elders involved.  But I think the biggest challenge remains in recognizing that elder abuse is a problem that affects our society, not just individuals taken advantage of by strangers or harmed by their loved ones because they are perceived as old, of little value to society, or as an impediment to an heir’s inheritance…

While there is an unfortunate variety of types of elder abuse – elder abuse generally includes:

Mistreatment – this is the preferred term for the American Society of Aging, which is offering a course on mistreatment as comprising abuse and neglect;

Abuse of a financial nature/exploitation – this includes the unauthorized or illegal use of or access to an elder’s financial resources that covers a range of activities such as theft, undue influence, deception or fraud, misrepresentation or coercion;

Abuse of physical nature – this includes violence of a physical nature, including slapping, hitting, restraining or confining an elder, overmedicating or giving improper medication;

Abuse of sexual nature – includes a caregiver forcing an elder to watch or participate in sexual acts;

Abuse of psychological or emotional nature – can be very subtle when employed by a manipulative or cunning family member or care provider;

Neglect of an elder can occur when a caregiver fails to actively or passively fulfill the role of caregiver (paid attendant or unpaid family member) or when an elder self-neglects.

The Adult Protection Services – APS for short – is part of the Colorado Department of Human Services and they have broken their page into four basic categories: caretaker neglect; exploitation; physical or sexual abuse; and self-neglect.  But this offers a very broad brush approach of what to report!

There are other options available in addition to simply reporting suspected mistreatment, abuse or neglect.  One of these involves getting immediate and direct protection against an abuser by means of obtaining a civil protection order.  A civil protection order proceeding is in county court and is available to persons who elders (and at risk adults, those who have developmental disabilities or some other cognitive impairment) who are victims of abuse to prevent further contact by the alleged perpetrator of the abuse.  Read more about the instructions and forms available on the Colorado State judicial website here.

The JDF 402 form for a complaint or motion for civil protection order specifically lists “abuse of the elderly or at-risk adult,” and cites Colo. Rev. Stat. §26-3.1-101(1) and (7).  That latter section of the statute, which is the definitional portion of the “protective services for at-risk adults,” provides

(7) “Mistreatment” means:

                (a) Abuse;

                (b) Caretaker neglect;

                (c) Exploitation;

                (d) An act or omission that threatens the health, safety, or welfare of an at-risk adult; or

                (e) An act or omission that exposes an at-risk adult to a situation or condition that poses an imminent risk of bodily injury to the at-risk adult.

You can see that there is astatutory provision for mistreatment that comprises abuse in our state.  The term is broad and necessarily so.  Remember that the statistics used by the National Council on Aging indicate that elders who have suffered abuse have a 300% higher risk of death as compared to those who have not been mistreated.

The take-away for this post is that there is an immediately available remedy to stop the mistreatment of elders in the form of a civil protection order.  The county courts have the forms available and magistrates or judicial officers to review the complaints or motions for such relief against an abuser respond quickly.

For elders who are suffering mistreatment at the hands of an abuser, a civil protection order can prevent further harm and help to safeguard the elder’s health.  I believe that raising awareness of available remedies to stop further abuse of elders is an important step toward realizing the goals of WEAAD.

© 2017 Barbara Cashman  www.DenverElderLaw.org

Dementia, Fear and Aid in Dying

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Sunset on an Artificial Lake

 

For this first post of June, I am revisiting a topic that has been discussed in previous posts: Alzheimer’s (or other forms of dementia) and the fear of aging.  Combining that volatile mix with the question of assisted dying presents a long list of novel questions.  The topic  was sparked by a phone call I received from someone residing in another state but who was looking for information about Colorado’s End of Life Options Act.  The specific query concerned the caller’s desire to explore options to end a spouse’s suffering from Alzheimer’s disease.  My response was fairly straightforward and I think the caller was a bit surprised by my candor.  I explained that under the Colorado law a patient or “qualified individual” was required to, among other things, have the capacity to give informed consent to the  receipt of the aid-in-dying medication to end the qualified person’s life.  See Colo. Rev. Stat. § 25-48-102(13) defining “qualified individual” and § 106(e) which concerns more details of the individual’s “informed decision.”

The caller was surprised when I explained that the only legislature which has to date considered expanding the aid-in-dying law to dementia patients was Oregon.  The Oregon Senate Bill 893 would allow for those persons otherwise qualified for administering receiving life-ending medications under Oregon’s Death with Dignity Act, except that the  patient who ceases to have capacity to give informed consent can still be given life ending medication if there is a specific advance medical directive which expressly authorizes an agent under a medical power of attorney to collect and administer the life-ending medication if the incapacitated person previously received a prescription for such medication.

Alzheimer’s Disease and other forms of dementia (here I will collectively refer to them as AD) are typically the most feared diseases of post-modern westerners who privilege their rationality (remember the Cartesian mantra “I think therefore I am”) and perceived autonomy over all else.  Further, our techno-medical way of examining aging, of parsing out different functions of one’s life ascribed to different body parts, leads us to believe that whatever form of cognitive impairment – age related or otherwise – might just be a part in need of fixing or a disease waiting to be cured. This type of reductionist thinking refuses to look outside its own narrow pigeon hole. In the meantime, those of us who do not perish will age in our own unique ways and many of us will struggle with its challenges.

Whose fear is it – and whose suffering?

What do we make of this fear of AD and fear of a person’s – er – a personality’s – disintegration?  I think in several important ways it is the same fear as the terror of dying, just a bit more latent and prolonged, and therefore more menacing than death for some people.  I’ll quote from Shakespeare’s Julius Caesar (III.i. 102-105) here, the conversation between Cassius and Brutus:

Cassius: Why he that cuts off twenty years of life

Cuts off so many years of fearing death.

Brutus: Grant that, and then death is a benefit:

So are we Caesar’s friends that have abridged

His time of fearing death.

There are many ways to respond to one’s own AD and to that of a loved one’s.  One way is to project our own fears onto the other person, who appears a shadow of the former self or as completely incapacitated.   But there is no standard response, even though some “conventional wisdom” (I use the term tongue in cheek here) might be welcomed by many who find the disease and its process most bewildering.  A slight detour here . . .

Bewilder is defined in the Merriam Webster online dictionary as (transitive verb):

1:  to cause to lose one’s bearings (see bearing 6c) bewildered by the city’s maze of roads;

2:  to perplex or confuse especially by a complexity, variety, or multitude of objects or considerations His decision bewildered her. utterly bewildered by the instructions.

And what if we break down that verb into a command – be wilder, wild from the noun wild) to be:

1: A natural state or uncultivated or uninhabited region.

2: (the wilds) A remote uninhabited or sparsely inhabited area.

Now back to my topic. . .

My concern is that there are many faces of Alzheimer’s Disease just as there are many aspects to an individual’s response to a loved one affected by AD.  I am thinking particularly of a recent article published in Kaiser Health News, entitled “How to Help Alzheimer’s Patients Enjoy Life, Not Just ‘Fade Away,’” and you can read that here.  The fact remains that each person is affected by AD is his or her own way and the “preoccupation with the cerebral pathology” (which the psychiatrist Dr. David Rothschild criticized in his 1936 paper on the psychodynamic model of senile dementia) often serves to fan the flames of fear and anxiety over our collective preoccupation with the losses of aging.  There are many other paths to choose here – not just the one of least resistance which is fear based.

© 2017 Barbara Cashman  www.DenverElderLaw.org

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

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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.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Dementia and Its Disproportionate Impact on Women

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Denver Elder Law

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.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Dementia and the Growing Prevalence of Elder Abuse

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Not Winter Flowers

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.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

Successful Elderhood, Autonomy and Driving

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Columns of Support

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.

© 2016 Barbara Cashman  www.DenverElderLaw.org

Let’s Raise Awareness About Elder Abuse!

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elder abuse awareness

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.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

Competency and Longevity: A Brief Look at the Sorensen decision

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Denver Botanic Gardens

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

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Dancing With Heart

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)

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Fall Flowers at Hudson Gardens

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:

  1. To make a will (testamentary capacity) – including a will with a testamentary trust
  2. To designate a health care agent in a medical power of attorney
  3. To execute a general (durable) power of attorney
  4. To execute an advance directive (living will)
  5. To execute a revocable (or irrevocable) inter vivos (living) trust
  6. To make a gift to another person
  7. 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 . . . .

©Barbara Cashman  2014   www.DenverElderLaw.org