The Perils of Elderhood: Retirement Insecurity

Florentine graffiti… what me worry?

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

Change Typically Makes Us Feel Insecure

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

© 2017 Barbara Cashman  www.DenverElderLaw.org

Elder Abuse and Domestic Violence

Elder Abuse Hastens Death

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

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

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

“Domestic violence grown old” 

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

“Late onset domestic violence”

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

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

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

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

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

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

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

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

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

© 2017 Barbara Cashman  www.DenverElderLaw.org

Dreaming Into Retirement Planning

Dreamtime Batik

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

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

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

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

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

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

Who looks outside dreams; who looks inside awakes.

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

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

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

So what to do in the meantime?

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

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

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

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

Happy dreaming!

© 2017 Barbara Cashman  www.DenverElderLaw.org

Boulder Senior Law Day is Saturday, September 23, 2017

Venetian Canal

 

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

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

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

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

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

© Barbara E. Cashman 2017   www.DenverElderLaw.org

New Proposed Federal Legislation to Combat Elder Abuse

Italian Ceiling

 

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

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

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

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

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

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

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

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

© 2017 Barbara Cashman  www.DenverElderLaw.org

 

The AHCA and Elders on Medicaid

Wahatoya Enshrouded

In this post, I am looking at what’s at stake for elders currently on Medicaid.  The AHCA or American Health Care Act (a/k/a Trumpcare) narrowly passed through the U.S. House, with twenty Republicans voting against it.  It faces more hurdles in gaining Senate approval, but the Senate is now considering the proposed law.

Medicaid is of course a government “welfare” program which came into being (along with Medicare) in 1965  when President Lyndon Johnson signed into law the bill leading to the establishment of both programs.  While many people think of the stereotypical mom and kids when they think of Medicaid – they were a primary source of concern for the original Medicaid program after all – there are many elders who are sick enough and poor enough to qualify for Medicaid.

How is the financial stability and well-being of elders on Medicaid threatened by this proposed law?

Colorado has been one of the many states in which “Medicaid expansion” has boosted enrollment in the insurance rolls of elders, the rural poor and other populations.  In Colorado, Medicaid is known as Health First.  The AHCA proposes, among many other huge changes, to move the funding to a “block grant” system in which each state will be given a grant for their Medicaid recipients.  Here’s a recent Denver Post article which discusses the impact of such a grant on Colorado’s budget.  Leaving the states to shoulder more of the Medicaid funding sounds like a good way to offload federal Medicaid as we know it, but it will change the landscape of health care services available to poor elders, particularly in rural areas, in ways we cannot foresee.  And I do not mean for the better!

How has the payment of health care services changed over the years?

I remember my father telling me about the circumstances under which my oldest brother was born in a hospital in Denver sixty-six years ago: the nuns weren’t happy with him because he couldn’t pay for my mother’s delivery (it was a bit complicated) with cash on the spot.  Yes, those were the “good old days” in many ways, when many Americans paid for lots of routine things (including the hospital stay for the birth of a child) out-of-pocket.  I found this colorful graphic from the California Health Care Foundation, which demonstrates how the source of health care payments have changed since 1960 through 2014.  If you want to look at some more color graphs, check out this collection of instructive slides in Louise Shiner’s pdf entitled Understanding the Slowdown in Heath Care Spending Growth.  In today’s “health care” environment, many of us need assistance for paying premiums, with getting needed prescription drugs and related items we couldn’t otherwise afford.  Long gone are the days when we routinely paid out of pocket for medical care!

So – who will pay for the elder’s medical care if Medicaid as we know it. . .  . disappears?

Based on information from the Medicaid.gov website, Medicaid provides health coverage to more than 4.6 million low income elders, nearly all of whom are also enrolled in Medicare.  Medicare has four basic types of coverage:

Part A: Pays for hospitalization costs

Part B: Pays for physician services, lab and x-ray services, durable medical equipment, and outpatient and other services

Part C: Medicare Advantage Plan (like an HMO or PPO) offered by private companies approved by Medicare

Part D: Assists with the cost of prescription drugs

Medicaid can assist low income elders in paying their insurance premiums and out of pocket medical expenses; it can also pay for additional services beyond those paid for by Medicare – like long term nursing care, prescription drugs, eyeglasses, and hearing aids.  Medicaid can often make a difference in providing the needed care or services by covering the shortfall from the difference in Medicare payment limits and the costs to the patient.

Here is a fact sheet from Justice in Aging which identifies what the “block grant” funding proposal would mean for elders on Medicaid.

Bottom line is that poor elders would receive less medical care or lower quality care as a result of the belt-tightening of the states providing those Medicaid services to their recipients.  People who have a period of ineligibility – like if they inherit a sum of money from a sibling or child – would not be able to re-qualify for future Medicaid services.

I don’t usually like to write these kind of “scary” blog posts, but as an elder law attorney I am deeply troubled by what might happen to some of the most vulnerable persons in our country (disabled adults) if the AHCA is passed.  I’m only mentioning in passing that Medicare premiums will rise – remember those tax cuts in the AHCA have to land somewhere!  Under the block grants, states will be free to retool their own stricter rules and I would imagine that some states will be looking to filial responsibility laws for shifting their burden to requiring the children to pay.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

JeffCo Senior Law Day is June 3, 2017!

The Rialto Bridge at night

May is National Elder Law Month! So – for the last post of this month I wanted to mention this important detail.

The event I’m participating in to observe elder law month, however, is next month . . . the Jefferson County Senior Law Day is coming up on June 3, 2017.  More information about it is here including registration information.

There will be twenty-four separate presentations on more than twenty different topics, beginning at 9:00 a.m. and concluding at 1:45 p.m.   I will be presenting on the topic “Managing the Challenges of Later Life Remarriage.” Last year at this Senior Law Day (there are a few different locations in the front range area, click here for more details on the Colorado Bar Association website) I presented on a similar topic.  Mine is a relatively new topic but is one about which many people have questions.

If you can’t attend this Senior Law Day and are looking for reliable information resources, you can click here to download the 2017 Colorado Senior Law Handbook, published by Continuing Legal Education in Colorado.

© 2017 Barbara Cashman  www.DenverElderLaw.org

Planning for Aging

Florentine graffiti… what me worry?

How does one assess the value of planning for one’s retirement, potential incapacity and/or eventual demise?  That is a very personal assessment, notwithstanding that the failure to plan has enormous financial consequences – for the individual, their loved ones and society as a whole.  Perhaps a prime and popular example is the failure to make advance heath directives – including appointing an agent under a health care power of attorney and signing a statement of end of life wishes – a/k/a a living will or in Colorado the Declaration as to Medical Treatment.  Read here for more useful information from the Colorado Advance Directives Consortium.  Many of us, perhaps most, would rather not entertain the idea that our lives will eventually change.  Our lives change every day, but whether we mark those changes is up to us!

“In the beginning is relation”

This famous quote by philosopher and theologian Martin Buber is a favorite of mine.  In my line of work relation and relationships are keys to planning and realistically assessing how far one can plan as well as the extent to which we must rely on others to assist us in the execution of our planning.

Aging and planning can give us the space to reflect on our values, what has been and remains important to us, and planning can also take much of the burden off our loved ones in the event we face a health crisis during we might be unable to make decisions.

I recently came across Sharona Hoffman’s 2015 book “Aging With a Plan,” and found it very insightful.  Hoffman is a law professor and, like many of us who practice in elder law, has life experience with an aging and frail parent.  She uses that experience, along with a systematic big picture discussion of a realistic conversation to consider all the alternatives in making plans for one’s aged self.

Many of us assume that, if we have lived in our home independently for 30+, we would never have an intention of leaving that space of storied independence and autonomy.  I note here that many elders (I’m including a number of clients and others) are coming to understand that there are good and workable alternative options for housing and community involvement that can nourish and sustain one’s basic human need to be part of a community and to contribute to that community.

I liked Hoffman’s approach to her book because it is founded on the importance of maintaining relationships, through social interaction and being useful (at whatever level).  The latter, being useful and having something or someone to take care of, is a fundamental premise in the “green house” nursing home alternative.  You can read about that in an article here from the Atlantic Monthly, or more about Dr.  Bill Thomas in a 2016 Washington Post article.  But I don’t want to get off track in talking about “green houses”  . . . .

So what are the components of a plan for aging? We are all familiar with retirement planning (even if the majority of us barely engage in such planning) and its focus on finances.  I think part of the repulsion in retirement planning is the focus on finances, many people simply find the savings part a difficult conversation and so stop before considering other aspects of retirement planning or aging with a plan.  I consider neither of these often heard comments a plan:  “X will never happen to me because my family doesn’t live that long;” or “if I can’t go to the bathroom or feed myself on my own, then just shoot me.”  We still don’t understand the role of genetics and epigenetics on the aging process very well and not deciding this very grown-up matter of “what happens if” means that we are shirking the responsibility be forcing someone else to choose for us…..

I recommend Hoffman’s book – it’s easy to read and its focus on several practical concerns including: finances; elders driving; person-centered (not disease-based) health care; and the importance of an exit strategy; demonstrate that the book is very useful – for an elder or elder-in training, or for an elder’s family member to assist with the awkward place of overcoming years of inertia.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Caregiving is Not for Sissies!

Sideways Sky

 

In my latest issue of Bifocal, the bi-monthly publication of the American Bar Association’s Commission on Aging, I noticed a helpful new resource entitled Ten Legal Tips for Caregivers. Here’s a link to the document.  In case you’re wondering who that “typical” family caregiver is, a recent New York Times article written by a resident physician, identified her as

a 49-year-old woman caring for an older relative — but nearly a quarter of caregivers are now millennials and are equally likely to be male or female. About one-third of caregivers have a full-time job, and 25 percent work part time. A third provide more than 21 hours of care per week. Family caregivers are, of course, generally unpaid, but the economic value of their care is estimated at $470 billion a year — roughly the annual American spending on Medicaid.

The comments section of this NYT article is both telling and heart wrenching, as there are so many stories of people who recount many of the article’s observations that this massive group of volunteer caregivers put themselves at risk in ways from which it may be difficult to recover.  There is the great financial risk, cutting back on work in order to care for an elder parent.  This financial strain is measurable but probably the more disturbing numbers comes from other studies concerning the lingering health effects (like depression, anxiety and chronic disease) of extended caregiving.  A JAMA article from 1999 entitled “Caregiving as a Risk Factor for Mortality: The Caregiver Health Effects Study” quantify the heightened mortality rates of caregivers.

So, enough of this gloom and doom, eh? Don’t let me get started on how this volunteer army’s numbers will be forced to multiply dramatically in the event the Affordable Care Act, with its Medicaid expansion services which many seniors now enjoy, is repealed.  Considerable portions of the Medicaid programs for elders will likely simply disappear under the block grants which could replace the ACA’s funding of these programs, which has taken several years to put in place.   Changes to Medicare from the proposed legislation known as the AHCA could compromise Medicare’s viability in a shorter time frame. That’s another blog post!

Olay, so what steps can a caregiver take to protect themselves legally?  The tip sheet identifies ten different steps or competencies which the caregiver can utilize to better assist the elder for whom they provide care as well as to protect themselves:

  1. Understand decisional capacity
  2. Know what legal authority you have
  3. Appoint a health care agent
  4. Complete a financial power of attorney
  5. Manage Social Security/ Veteran’s benefits
  6. Know your rights of access to health care information
  7. Know the signs of abuse, neglect and exploitation
  8. Know your rights if you face Family Responsibilities Discrimination (a form of employment discrimination)
  9. Understand your rights under the Family and Medical Leave Act (federal legislation)
  10. Consider a Personal Care Agreement (to counteract some of the financial losses described above)

This tip sheet, like other public resources made available by the American Bar Association, contains useful and helpful information.  It is a welcome reminder for caregivers that they should not wait until a health crisis to figure out the basics of how best to provide care for their elder.  Making advance care arrangements and learning more about how to manage information and choices for another (using durable powers of attorney) can help take some of the anxiety out of the “what if’s” so many caregivers face on a regular basis.  Turns out that taking care of the caregiver allows for better care to be provided for the elder who needs care.  That’s all for now!

© 2017 Barbara Cashman  www.DenverElderLaw.org

 

Fast facts about the Colorado End of Life Options Act

Where the Light Comes In

Today I’m presenting on this topic at the biennial Advanced Elder Law Institute, put on by Continuing Legal Education in Colorado.  It’s a two day program and I’m looking forward to it.  One of the best things about being a lawyer is I am always challenged to learn new things, as the law is – just like the rest of us – in a constant state of change and development!

As you may be aware, Colorado voters passed ballot initiative 106 last November and after certification of the election results by our Secretary of State, the law went into effect when Governor Hickenlooper signed it (by proclamation, in accordance with Article V of the Colorado Constitution) on December 16, 2016.  Colorado became the sixth state to have a physician assisted death law.  Other states with such laws include Oregon (the first state to have such a law) and Washington, where voters approved the laws as ballot initiatives; as well as Vermont and California, with their laws being passed by their legislatures in 2013 and 2015, respectively. Technically, Montana is also one of these states (by virtue of a Montana Supreme Court decision) but it doesn’t have any regulatory means of providing physician assisted death.

The title of the Colorado statute is the Colorado End of Life Options Act (EoLOA), but the terminology used for the death-causing prescription is “medical aid in dying” (hereafter MAID).

Unlike most statutes originating as legislation in the Colorado legislature, there was no preparation time for easing into this new law.  What are the implications of this?

Doctors have to get up to speed quickly on this new law.  They hold considerable power in this new law – they make the determination whether a person qualifies under the EoLOA as “terminally ill;” is “mentally capable” to request the MAID, get and fill that prescription.  Emergency rules had to be put in place by the Colorado Department of Public Health & Environment concerning the new law.  You can read the rules and download a couple of the forms on the CDPHE site.

There have been a number of complications with this new law and its immediate enactment.  The EoLOA is designed to cover all physicians and facilities unless there is a written policy notifying both patients and physicians of the facility’s policy to “opt out” of compliance with the law.  One of the challenges with simplifying this complicated issue of MAID in the initiative is that the law makes MAID available but there is no guarantee that an individual will have access to such MAID.  Several religious based systems opted out fairly early and there are other complications that have presented with other facilities.  Here’s a Denver Post article which speaks to some of those challenges.

An individual’s access to MAID may depend on where one lives.  Access may be more difficult in rural areas.  A local rural hospital board explained their “opt out” policy as follows:

The law requires that hospitals opt in or opt out of the practice; participation by hospitals and physicians is voluntary.  In December, YVMC’s Board of Trustees decided to opt out of participation in the End of Life Options Act at this time. This is due largely to the number of standards that must in place to meet both the requirements of the law and the needs of patients. The Board of Trustees, along with YVMC’s Ethics Committee, will continue to review the End of Life Options Act and will keep the possibility open to opt into the End of Life Options Act at a later date.

Because of this decision to opt out, patients are not permitted to self-administer medical aid in dying medication on YVMC’s premises, nor are employed or contracted physicians permitted to write a prescription for medical aid in dying medication for an individual who intends to self-administer medical aid in dying medication on YVMC’s premises.

Colorado is not the only state experiencing these difficulties.  Here’s a recent NY Times article on aid in dying and access difficulties.

I’ll close with three “tips” regarding MAID and minimizing conflict at the end of life:

  • Talk to your doctor and find out what all of your options are
  • Talk to your family and loved ones about what you might decide to do
  • Don’t wait too long! The MAID process takes at least two weeks….

© Barbara E. Cashman 2017   www.DenverElderLaw.org