May is Elder Law Month!

Shadows and Isolation

Yep, it happens every year – when May rolls around or rather – bursts out of nowhere and then gets covered in snow briefly!  Many elder law attorneys participate in workshops, radio programs, elder or senior law day presentations for the public. On April 16th, 2019, I presented a talk on elder law/estate and disability planning and participated in one-on-one meetings with folks at the Ask-a-Lawyer day event for the Third Judicial district in Trinidad, Colorado.  Next month I will be speaking about the End of Life Options Act at the Adams County (Seventeenth Judicial district) Senior Law day on Saturday, June 8, 2019.  Registration details are here.

In many ways, it’s never been a better time to be an elder in this country.

Notwithstanding the important detail that our life expectancy has dropped for the third year in a row. . . .

Say what? Yes, this is the first time since the Spanish Flu epidemic of 1918 that our life expectancy has dipped, now for the third year in a row. We are ranked #43 in the world for life expectancy!   The information on the PBS News Hour’s page points out that while heart disease and cancer account for about 44% of deaths, the deaths from the opioid epidemic, coupled with ever-rising levels of suicide in our country.  In Colorado, the suicide rate is high – we are ranked tenth in the nation according to 2017 CDC statistics.  For many years, city dwellers had higher rates of suicide but this has changed in the last decade.  There are more males than females who take their own lives and in rural areas where there is often greater poverty and more difficult access to mental health services there can also be easier access to firearms, the most lethal instrument of suicide.

Suicide by elders is not normal or to be expected and is often the result of depression

But what about elder suicide rates? These are disproportionately high and, with the baby boomers age-wave continuing, seem likely to increase.  Based on this post from 2017, more than 70% of the elders (65+) who take their own lives do so by using a firearm. Loneliness, grief and social isolation can contribute mightily to an elder’s depression. Couple this with the fact that many of us have become accustomed to not becoming alarmed on  hearing an elder’s statement “I just want to die” for any variety of reasons.  This statement would cause red flags and alarm bells when uttered by younger persons.  Many of us would simply agree, without asking any questions, that we wouldn’t want to live with what is often perceived by others as a lessened quality of life.  But what if the cause of the depression was elder abuse?


The simple act of being present and listening can change things

Sometimes listening to another’s pain involves asking questions to clarify.  Regardless of its “outcome,” the simple act of listening is a potent antidote to social isolation among elders. There are many resources available to elders who have been abused financially or exploited.  Bloomberg’s calculation for 2018 puts elders’ loss of money to fraud at $36 billion annually.  This type of loss can obviously contribute to an elder’s sense of shame and resulting isolation, so please, remember to ask questions if you note a change in an elder’s behavior – making assumptions can be deadly!

© Barbara E. Cashman and www.DenverElderLaw.org  2019. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Barbara E. Cashman and www.DenverElderLaw.org  with appropriate and specific direction to the original content.

Will you need a dementia specific advance directive?

Reflection on a Lake

Are you one of the few and one of the brave who is willing to talk openly about dementia – specifically what kind of care you want and how you want your health care agent to decide for you in the event you have dementia?  Based on stats from the summer of 2017, fewer than one-third of Americans have executed a living will.

So, if you are one of those persons, this series of posts is for you!

By midlife, many of us have had some personal experience with a family member or loved one with dementia.  The disease Americans are most afraid of is the dreaded Alzheimer’s Disease (AD for short) or some other form of dementia.  For some of us, it overshadows even the fear of death.  Perhaps this is because that dis-integration of the brain causes us to forget the most basic of things – who we love, what we like to do, what is our identity, and even how to die. 

In our brain-centric culture, which so often takes a reductionist view of the body as a kind of machine (e.g., the heart is only “a pump”), to lost one’s mind is the most fearsome of possibilities.

 How will you know whether you might need a dementia advance directive? [Yes, it’s a trick question….]

Over the years I have worked with a couple clients who have been diagnosed with early stage AD.  These are typically the folks who are recruited to participate in studies involving the progress of the disease and new therapies.  Informed consent for voluntary participation in these studies can be challenging. Here’s a link to an informative background paper from the 2017 Research Summit on Dementia Care, through HHS.

What are our choices?

Do nothing and hope for the best. 

This is what most of us will choose by default.  “My kids will know what I want,” I’ve heard said with a shoulder shrug.  Really? How much more difficulty do we want to add to an already challenging situation?

Can’t I just rely on people I’ve already put in charge who know me to make the right decisions for me?

Yes, of course, as long as you have the documentation in place.  Most importantly a health care power of attorney, which names a person (an agent) to make decisions for you in the event you cannot give informed consent for medical treatment.  The health care provider is the person who decides whether a person can give informed consent.

You must rely on others, because dementia is a scenario which will leave many of us very vulnerable and unable to manage things on our own.  There, I’ve said it.  Is that really a fate “worse than death?”  There is an inherent dignity of human beings, regardless of our “cognitive status” or whether we have trouble thinking or remembering.

What do I need to consider to put in this dementia directive?

This is some heavy lifting…. Let me start with a bigger picture.  I enjoyed reading a recent New Yorker article by the late neurologist and writer Oliver Sacks which recounted the activities of two different patients with dementia.  One was a doctor who had been the medical director of a hospital where Sacks had worked.  Despite his mid-stage dementia, the doctor had periods of relative clarity where he believed he was a doctor at the hospital and would write prescriptions.  This was intermittent, however and some of the time the doctor was painfully aware of his predicament and his mounting losses. The article poses the basic question about how to treat someone with AD, do we honor the persons dignity and support them, to the extent feasible and appropriate, in the belief that they can still perform the job that served as the cornerstone of their identity?

This can be a tricky conversation, but of think of a relative who died in a facility from AD.  After she lost most of her ability to speak and communicate with others, she retained a decent command of her fine motor skills.  She had been an expert seamstress and embroiderer and my cousin reported how happy and occupied she was when she was given a knotted up necklace chain to untangle.

Okay, back to the response to the third question.  There is a big difference in a dementia directive between expression of a “freedom to”  in terms of what a person wants provided for them in the type of dementia care, and the right to express preferences which are a “freedom from” a statement of what is not wanted in advance of a time when we may no longer be able to object to such interventions planned or carried out “for our own good.”  How much can we describe and determine in advance and what will actually “stick” in terms of the two competing positive and negative statements?  Well, that’s a topic for my next post!

© Barbara E. Cashman and www.DenverElderLaw.org  2019. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Barbara E. Cashman and www.DenverElderLaw.org  with appropriate and specific direction to the original content.

New Year, New Resources Available to Combat Elder Abuse

Convergence

I subscribe to a number of listserves and received a post about a link to a recently published issue of the Department of Justice’s Journal of Federal Law & Policy (vol. 66, number 7, December 2018) which is entirely devoted to elder justice.  You can read it in its entirety here.

The issue is chock-full of resources and its article cover a range of topics, including:

Opioid abuse and elder justice.

Most folks don’t know there is a strong threat to elders posed by the estimated 1.7 million people addicted to opioids in this country.  In Vail last August, a local M.D. presented on this topic at the 10th annual CBA Elder Law Retreat.  Here is the sad fact – many elders who need their pain meds are being deprived of them by others, often family members, who steal the elder’s pain meds.  Here’s another link on that topic.

Transnational scam predators and elder victims.

Financial fraud has new and unanticipated expression in new technologies, and elders are potential prey for these scammers when elders use the internet to stay in touch with people important to them.  People who are victims of these scams are at risk of losing their accumulated wealth (often hundreds of thousands of dollars) and with that loss comes a spike in mortality rates of these victims.  While many of us might think of the internet as “anonymous” – most of us know better because a faceless and unknown predator can often inflict more harm than a known and identifiable scammer.

Elder abuse and neglect in American Indian and Alaska Native communities.

I found a monograph published in 2000 which had useful information about the prevalence and reporting of elder abuse in several Native American communities.  Sadly, a 2014 publication states that the prevalence of elder mistreatment in this population is unknown due to the fact that only smaller studies of certain communities have been conducted.

What I found most helpful and hopeful about this issue of the DoJ’s Journal however, was the article about the coordination of federal, state and local partnerships involved in elder justice for the reporting, investigating, prosecution of perpetrators and the provision of support services and redress for victims.  The two authors of this article used an estimate that as few as 1 in 24 cases of elder abuse is reported to authorities (at 138).

The federal government is a key player in assisting state and local communities to recognize a common definition of elder abuse as well as to provide guidance for federally regulated financial institutions and assist in the tracking and prevention of internet and telecommunication fraud and theft targeted at elders.

That’s all for now… and Happy New Year!

© Barbara E. Cashman and www.DenverElderLaw.org  2019. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Barbara E. Cashman and www.DenverElderLaw.org  with appropriate and specific direction to the original content.

Good Communication Is Often a Scarce Resource

Speaking Stones?

Is Communication a Seasonal Thing?

In my experience working with elders, communication with loved ones can be fraught with difficulties.  Sometimes it can be a dialogue based on relationship and sharing of information, but it can also be a monologue forced onto others by one person (often an adult child) who strives to control the narrative of the family.  The “silent generation” needs to speak up!

Communication can be defined simply as:

a process by which information is exchanged between individuals through a common system of symbols, signs, or behavior

I draw attention to this because it is part of the “holiday season” that causes many people undue stress during the months of November and December!

Money Smart for Older Adults

With the goal of starting a discussion about empowering better communication by elders, I’m sharing a link to a newly published document called “Money Smart for Older Adults.”  It’s a resource guide published by the CFPB, which is known now as BCFP it appears, along with the FDIC.  It’s not a short document (weighing in at 100 pages) and would take some time to read – but it’s chock full of lots of resources.

It has some good information about scams, but keep in mind that most scammers are quite sophisticated and tend to “update” theirs tactics as well as tailor their scams to particular communities or individuals they target.  Think of the scammer as like a virus in this respect!

I think a most crucial factor, particularly for members of the “silent generation” is to communicate: ask first whether the person you have in mind will agree to help you.  This means that an elder should be careful about whom they ask to serve as agent for them under a durable POA.  It may seem like a given that an elder would first ask a family member or friend if they would be willing to serve, but when people think that disability and estate planning is just about filling out some forms, disaster can follow!  This can be hard for people of a certain age, who may not want to be sharing all these details about which they have remained mum most of their lives, but it is the best policy. Why?

Why the Silent Generation Needs to Speak Up

People should tell others whether they have a POA as well as who is the nominated agent so that others can help monitor things and look out for the interests of the elder.  Communication about our weaknesses, shortcomings or frailties is seldom easy for most of us, but when we name people to assist us, it can be helpful for others to know we have made such arrangements as well as who those people are.  For example, in case a neighbor knows that an elder is facing a particular health challenge and really needs help, the neighbor will know that the elder has already made plans and that the agent can be contacted and notified of the elder’s need for assistance.

Another reason to communicate wishes is to clarify the wishes in advance so that there are no surprises in the event of some accident or catastrophic event.  Sometimes there is an adult child who has a chip on their should or perhaps an overweening sense of entitlement, and this child may be sorely disappointed to learn of the parent’s choice of agent when the elder faces a difficult decision about which they may or may not be capable of deciding.  Making one’s wishes known well in advance can often “soften the blow” to such a child, but in the end, it may be of little assistance.

If an agent knows that there are others who might be looking over their shoulder, the agent may take better care of the principal’s interests.

Some Parents Need to Protect Themselves Against a Child Who Wants to Control The Parent

At the other end of the spectrum, I see quite a bit of “misery loves company” behavior as well.  In this type of scenario there is one child who has been selected by the now-incapacitated parent who is effectively being punished by a child who feels left out or believes she should be entitled to make the decisions for the parent – this notwithstanding the fact that the parent did not select that child for such a decision-making role, usually for good reason.  To my mind, there is a fair amount of litigation that is fueled by the “let no good deed go unpunished” and this is very unfortunate.  But I digress….

Over the years, I have only spoken with a few people about including a “POA protector” in the POA document, but it may be that including such a role can be beneficial to a principal and also serve to protect the agent against the hostile actions

I s there anything that can be done about this?  Some trusts are written which name a person known as a “trust protector,” and it may be time for a similar type of office to be created for the POA – like a POA protector.  This can be a third person who keeps an eye on the agent’s record keeping or bookkeeping.

And don’t forget. . . Today is Giving Tuesday! You say you’re not familiar with this new tradition? It’s been around for over six years and it’s dubbed “a global day of giving fueled by the power of social media and collaboration.”

© Barbara Cashman www.denverelderlaw.org 2018, all rights reserved.

Memento Mori: Bringing Death Into Conversation

Memento Mori – from Kirkwall, Orkney Islands

Memento Mori: Remember Death, That You Will Die

Last weekend I attended the International Death Symposium in Toronto, Canada. I went with a friend who is a Canadian death midwife.  We both enjoyed it. It was a rather extraordinary place to be, amidst an entire community of folks committed to dispelling the death taboo.  The presenters and attendees were Canadians mostly, some Americans and an Irishman who spoke eloquently about his father’s death and wake.

So, what is conversation anyway?

Definition of Conversation

1 obsolete : CONDUCT, BEHAVIOR

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

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

—Samuel Johnson

(2) : an instance of such exchange : TALK; a quiet conversation.

Of course, I couldn’t mention “conversation” without a reference to The Conversation Project, which is a very useful tool to help people (like many of my clients) toalk about the end of their lives and express their wishes and values around that part of life.

In this post, I’ll share a couple highlights from the symposium. One of the “rocks stars” who presented was BJ Miller, a hospice doctor from San Francisco.  You can watch a video here about the “problem of death” in our medical delivery system.  Part of his presentation at the Symposium addressed the conflict of aesthetics of caring for the dying and the widespread use of anesthesia.

Aesthetic versus Anaesthetic

My late mother, an R.N. who received her nurse’s training through the Nurse Cadet Corps, would have been thrilled to hear an M.D. make reference to the work of a nurse.  The nurse was none other than Florence Nightingale, the “mother of nursing,” who wrote about the aesthetics of caring for patients.  Miller contrasted Nightingale’s insistence on aesthetics – a set of principles concerned with the nature and appreciation of beauty – with the current widespread use of anaesthesia (or anesthesia in the US) which is the numbing or rejection of aesthetics in favor of

Insensitivity to pain, especially as artificially induced by the administration of gases or the injection of drugs

In this place of intersection between our ability to sense and perceive beauty with the selfsame capacity to sense pain, what do we make of our commonly accepted and pervasive use of drugs in this country (and so much of the west) to numb us down to “ease our suffering” regardless of where in our lives we encounter that suffering?  It could be at the end of our life, somewhere in-between for a surgical procedure, or it could become a lifestyle treatment for anxiety and depression.  Does it matter where the suffering occurs for which we seek anesthesia?

Our Sense or Capacity to Appreciate the Beautiful is Inextricably Linked to Our Capacity to Feel Pain

Isn’t the pain of dying just the pain of living at a time of greater uncertainty?  Why do we pretend we can draw the distinction so clearly –  particularly during a time of unprecedented numbers of people dying of drug overdoses?  I’m not talking about the present opioid crisis – a recent study has shown that our current opioid overdose epidemic actually began forty years ago and has been increasing – exponentially – since then!

How and why we distinguish between the pain of living and the pain of dying . . .  well, that’s a topic for another blog post!

I’ll write more soon about the Symposium.

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

Because I could not stop for Death –

He kindly stopped for me –

The Carriage held but just Ourselves –

And Immortality.

 

We slowly drove – He knew no haste

And I had put away

My labor and my leisure too,

For His Civility –

 

We passed the School, where Children strove

At Recess – in the Ring –

We passed the Fields of Gazing Grain –

We passed the Setting Sun –

 

Or rather – He passed us –

The Dews drew quivering and chill –

For only Gossamer, my Gown –

My Tippet – only Tulle –

 

We paused before a House that seemed

A Swelling of the Ground –

The Roof was scarcely visible –

The Cornice – in the Ground –

 

Since then – ‘tis Centuries – and yet

Feels shorter than the Day

I first surmised the Horses’ Heads

Were toward Eternity –

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

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

© 2018 Barbara Cashman  www.DenverElderLaw.org

Denver Senior Law Day is Saturday July 28, 2018!

Entrance to Fingal’s Cave

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

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

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

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

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

 

More about Preventing Elder Abuse With Prosocial Behaviors

Who You Callin’ Stubborn?

 

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

What Are Some Examples of Prosocial Behaviors?

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

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

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

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

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

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

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

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

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

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

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

Giving Tuesday – Consider Giving Some Time to an Isolated Elder

Make the Connection!

Today is Colorado Gives Day!

Otherwise known as Giving Tuesday, the day designed to spotlight opportunities for people to give to charitable causes.  The day seems to have come into existence when two organizations, the 92nd Street Y in New York City and the United Nations Foundation came together in October 2012, with the intention to set aside a day that was all about celebrating the generosity of giving, a great American tradition.   According to USA Today, Giving Tuesday raised $180 million in online donations.  That is nothing to sneeze at!

Donating Locally is Easy!

Here in Colorado, we’ve got our own website with over 2,000 nonprofits listed to receive donor’s contributions.  You can visit the website and find a good place for your donation to support if you’re at a loss about which type of charity you’d like to benefit.

Instead of highlighting the worthy nonprofits which serve low-income elders, I’m looking at Colorado Gives Day with a different goal in mind – to raise awareness about reaching out to socially isolated elders in our communities.  I’m not just talking about making contact with folks who reside in senior housing residences, assisted living or skilled nursing facilities, but also to those elders who are “gaining in place” in their own homes and face considerable social isolation based on a number of factors.

What About Donating Your Time?

One way to ease an isolated elder’s isolation and also solidify our own connections with community members we might never have otherwise met – is to volunteer our time – even if for a few short minutes or hours.

You can easily volunteer your time locally through a nonprofit like Metro Volunteers, who will match your skills with a nonprofit looking for someone with your skills.  Whether it is a board of directors position you seek, a mentoring opportunity with a youth, or serving food to people at a shelter – Metro Volunteers can assist.

But the focus of today’s post is about giving time to an elder who is isolated.

There are numerous article and research into the effects of loneliness on the elderly population.  One recent study concluded that loneliness is a significant public health concern among elders.  In addition to easing a potential source of suffering, the identification and targeting of interventions for lonely elders may significantly decrease physician visits and health care costs.

Decreasing an Elder’s Sense of Isolation Helps Prevent Elder Abuse

I’m reposting a link from an elder abuse prevention listserve I am part of, originally posted this morning by the Social Media Manager of the NYC Elder Abuse Center at Weill Cornell Medical College.  The holidays are difficult times for many of us.  She writes “During the holiday season, family gatherings are more commonplace. Older adults feel social isolation more acutely, yet crave the connection. This holiday season NYCEAC is asking our social media followers to commit to have a conversation with an older adult in their life during the month of December. We know everyone benefits from a connection, and improves the health of the community at large, too.” We’re calling our campaign Countering Isolation, or #CounteringIsolation.

Remember that this type of giving of our time to another who doesn’t have the physical, psychological, financial or emotional wherewithal to engage in the broader community is a good thing with many positive benefits for us,  Happy Giving Tuesday!

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Denver Senior Law Day is Tomorrow!

Venetian Shop Window

Yep, Denver’s Senior Law Day is Saturday, July 29, 2017 at the PPA Event Center, 2105 Decatur Street, Denver, CO 80211.  You can register by emailing SLD@DenverProbateLaw.com or by calling 303.757.4342.  The cost is $10 and you get to hear the speakers, eat snacks and take home a copy of the 2017 Senior Law Handbook!

The opening presentation starts at 8:15 a.m., and features Maro Casparian, Director of Consumer Protection at the Denver District Attorney’s office, as well as other attorneys who will present on a number of elder law and independent living topics.

I will be co-presenting with my esteemed colleague M. Carl Glatstein from 11:15 a.m. – 12:00 on the topic of Advance Directives, the End of Life Options Act and Guardianship.  That’s quite the trifecta if you ask me! In particular I will be speaking about the End of Life Options (EoLOA) Act and will also have a bit to say about how the new law meshes with advance directives (like medical powers of attorney and living wills) as well as guardianship proceedings.

That’s all for this post!

Capacity and Incapacity in Context

Maigue Swan

 

Capacity is not some dusty old legal concept! In this post I revisit some implications encroaching incapacity or. . .  the “dark side” of our longevity.

The issue of capacity basically concerns judgement – the ability to reflect on and consider decisions required for daily living.  When one lacks that capacity (or is deprived of it) the validity of some actions taken or decisions made – which have legal implications – can be called into question.  This capacity discussion is likely to become more commonplace as more baby boomers move into retirement years and greater longevity…

Here’s a definition of capacity referring to Black’s Law Dictionary:

Legal capacity is the attribute of a person who can acquire new rights, or transfer rights, or assume duties, according to the mere dictates of his own will, as manifested in juristic acts, without any restraint or hindrance arising from his status or legal condition. Ability; qualification; legal power or right. Applied in this sense to the attribute of persons (natural or artificial) growing out of their status or juristic condition, which enables them to perform civil acts; as capacity to hold lands, capacity to devise, etc.

Capacity includes the ability to behave rationally and exercise one’s own judgment (for better or worse).  Certain matters which typically adversely impact one’s otherwise presumably intact capacity include: mental disorder, developmental disability, intoxication, injury affecting one’s cognitive abilities, or the course of a disease process.

Reference to judgement capacity (or the ability to process information) is a legal notion often coupled with or inclusive of a functional (objective) capacity assessment.  This is because so many of our human “doings” can require distinguishing (as our law does) between when we can manage and when we can’t.  The term “capacity” by nature refers to an ability.  I won’t go into any discussion about the nuances and historical underpinnings in the law relating to capacity as distinguished from competence.  If you want to read further on that topic, check out this entry from the Stanford Encyclopedia of Philosophy on decision-making capacity.

So – how do we move from being presumed to have capacity to being legally incapacitated?

Where an adult has diminished or diminishing capacity, the law makes reference here to the “least restrictive means,” a concept borrowed from disability law.  For Colorado adults who are determined by a court to be incapacitated, there is a finding by the court that “the ward is an incapacitated person and the ward’s needs cannot be met by less restrictive means, including the use of appropriate and reasonably available technological assistance.”  See JDF 848, Order Appointing Guardian for Adult.

Because my practice focuses on elder law and probate, most of the petitioners whom I represent file petitions for guardianship (or conservatorship) concerning elders who have “slipped” in their capacities to manage for themselves, meaning the individual no longer has sufficient capacity to manage their affairs or make important decisions on their own.  Many of these elders are at risk of financial exploitation as a result.  I have also represented petitioners who are often parents of developmentally disabled young adults.  The distinctions among them, as for elders, are varied and numerous.  Suffice it to say that sometimes, for younger adults, it may be easier to establish grounds for a limited – as distinguished from the much more commonplace unlimited guardianship.  In the former there can be specific references to supports to help facilitate an adult’s capacity(ies).  Unfortunately, limited guardianships remain rare birds for a number of different reasons.

  Capacity in Daily Living

To bring this discussion back to the practical level, I not that one’s capacity to “live independently” or perform the activities of daily living (ADLs) are often part of the incapacity picture as well, but this is generally due to a concern for an elder’s self-neglect.  With regard to an elder who is named as a respondent in a petition for guardianship, the elder’s physical capacity or incapacity is generally irrelevant in determining incapacity unless it substantially affects his or her ability to make or communicate important decisions regarding his or her person, family, property, or results in self-neglect.  Physical impairments alone are often of limited import in the guardianship context, as evidenced by reference in Colorado law assistive devices and technologies and the preference for least restrictive means, but in making the determination of incapacity, reference is made (as stated above in JDF 848)  to those assistive technologies.

Another context for elders and capacity which is receiving more attention is the issue of consent for sexual relations.  I would imagine that the free-loving baby boomers will test their adult children’s tolerance and demand that more attention be paid to this aspect of living in a communal or institutionalized setting. Read a recent study about the generation gap in attitudes and practices of extramarital sex here.  A couple years back I wrote a blogpost on this topic and also about a husband in Iowa who was prosecuted for allegedly sexually abusing his demented wife.

Suffice it to say that this debate is ongoing, particularly as more institutions look to provide more person-centered care for residents who still enjoy physical intimacy.  Some of these folks have dementia or other cognitive impairments which can affect their ability to consent.  Do not underestimate the “eeewww” factor of many of these folks’ adult children who would rather not be informed of mom’s recently contracted STD or consider that an elder parent is sexually active!

We must remember, even when an adult is determined to be incapacitated for purposes of imposing a guardianship, what can still remain intact is that person’s capacity to express a preference as to the person who will serve as guardian.  In In re Estate of Runyon, 343 p.3d 1072, 1077 (Colo.App.Div.4 2014), the court held that

a finding that the respondent is an “incapacitated person” within the terms of the statute does not necessarily mean that the respondent lacks sufficient capacity to express a preference as to a guardian or conservator.   Neither the definition of incapacitated person nor the criteria for appointment of a conservator automatically exclude the ability to make a rational choice as to the selection of a guardian or conservator. Therefore, an incapacitated person may “still be able to express an intelligent view as to his choice of guardian, which view is entitled to consideration by the court. (Citations omitted)

That’s all for now and thanks for reading!

© Barbara E. Cashman 2017   www.DenverElderLaw.org