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Vulnerable Elders and the Slayer Statute

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A couple weeks back, I posted an update on the proposed End of Life Options Act, a bill in the Colorado legislature which has since died (presumably of natural causes).  There is concern that some version of the bill will make it onto a ballot to become law by other means.    For this reason, today’s post will go into a bit more detail about the concerns I raised about the implications of having no reporting requirements for such a law and concerns I have with regard to the safety of some vulnerable elders.

Vulnerable Elders

Colorado’s mandatory elder abuse reporting statute defines an at-risk adult as “any person who is seventy years of age or older or any person who is eighteen years of age or older and is a person with a disability.”  Colo. Rev. Stat. §18-6.5.102(2).  The only reputable (US Census based) internet fact I ran across about this population was for persons 65 and up, who in July 2014, were estimated to be 12.7% of the population of Colorado.

From a civil rights perspective, aspects of elder abuse prevention statutes can often seem paternalistic.   Much of the research that could be done on the subject is problematic because of ethical and methodological problems.  Collecting information about elder abuse may publicly expose cognitive, physical, mental and social vulnerabilities and the collection of such information could have negative implications in the form of legal, financial or social consequences for both the elders and caregivers and others who might participate as part of a study.  I mention this because the vast majority of elder adults are competent and retain capacity, at least in the eyes of the law.  The implication of these observations is that we really don’t have solid numbers about how many perpetrators and victims we are talking about.  As an elder law attorney, I can say that it is extremely difficult for an elder parent to call me (or adult protective services) to report abuse or exploitation being perpetrated by an adult child or family member of the elder.  Suffice it to say we don’t really know, and may never have a very firm handle on how many elders are affected as victims of exploitation and abuse.

When you couple this with the lack of any reporting requirement for a physician assisted death law, it would not be possible to track the numbers of vulnerable elders who might fall prey to an abuser’s or exploiter’s plan to hasten someone’s demise so that they might inherit something from the elder.  Enter the slayer statute.  Here’s an article about “disincentivizing” elder abuse.  Keep in mind that elder abuse statutes have criminal penalties.  There are of course distinguished from civil remedies, which can provide other types of relief.

The Slayer Statute – A Modern Law with Ancient Origins

If you’ve never heard of a slayer statute, you’re not alone! It’s both obscure and ancient.  Before there were any state “slayer statutes” there was the common law slayer rule.  Its origin hearkens back to the first known remedial law code in human history: the Code of Hammurabi.  The Code of the Babylonian king was inscribed on a stone pillar (called a stele) and installed in a public place.  It was a combination of legal principles and history.  Most of us are familiar with the axiom “an eye for an eye and a tooth for a tooth” as some precept of retributive law in the form of revenge as recompense for personal harm, but it is much more likely the expression has been badly misinterpreted and taken out of context.  It is probably much more closely aligned with other commentary in the code which describes the value of certain personal injuries in terms of repayment.  In short, it was a code of remedial law – akin to modern day worker’s compensation and tort law.

The principle from Hammurabi’s code is that “a killer cannot profit from his wrong.”  The common law rule, nullus commondum capere potest de injuria sua propria (no one can take advantage of his wrongdoing) forms the basis of the historical slayer rules and subsequent statutes, preventing slayers from inheriting from their victims.

Probably the most well-known case (from law school) to articulate a slayer rule is Riggs v. Palmer, 22 N.E. 188 (N.Y. 1889). In that case a grandfather had executed a will leaving small portions of his property to his children and the remainder to his grandson. The grandfather subsequently married and stated that he intended to change his will to include his wife. The unhappy grandson caused his grandfather’s death in an attempt to secure his portion of the estate.  The court held that grandson was disqualified from inheriting because of his action and relied on the grounds of moral equity to articulate a slayer rule in American jurisprudence.

Forty-seven states have slayer statutes. Colorado is a Uniform Probate Code state, among many other states which have adopted that version of the slayer statutes.  Colorado’s is codified at C.R.S §15-11-803 and contains both a criminal and civil provision for determining that a felonious killing has occurred such that a slayer/felonious killer is prevented from inheriting from the person whom they slew.

This post will be continued next week. . .

© 2016 Barbara Cashman  www.DenverElderLaw.org

More About Proposed Colorado End of Life Options Act

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Italian Arch

 

After my recent post about this bill in the legislature entitled the Colorado End-of-Life Options act, I was contacted by someone who was concerned that I had omitted some very important information about the proposed legislation.  I am posting further on this topic to provide more detail about the legislation and also to express my concern, as an elder law and probate attorney, about the particular implications of those important details – which I missed the first time around.

The bill contains no requirements regarding documentation and reporting of any of the processes described in the bill.

This is a big departure from the 2015 version of the bill – which contained provisions concerning reporting and documentation for the public health record (Colorado Department of Public Health and Environment) or the patient’s medical record.

Why is this a big deal?

Other states with similar legislation have documentation, reporting and review requirements.  This is for several good reasons, but the two with which I am concerned – protecting a vulnerable population of elders at risk of abuse safe from potential coercion and ensuring their consent to end their lives is one with consent given which is sufficiently sound and documented.  This reporting is to keep track of the many important details surrounding physician assisted death (PAD).  Without reporting requirements, there will be no way to know how the state’s PAD is working or not working.

Elders and vulnerable elders (as defined in Colorado’s mandatory reporting of elder abuse or exploitation law) have not generally been at the forefront of the PAD movement.  However, much of our death-denying and youth-glorifying culture is obsessed with the fear of losing one’s autonomy, losing control over one’s choice – and these fears factor substantially in the PAD debate.  As a civil rights issue, PAD focuses on self-determination and autonomy to allow for an individual’s decision to end one’s life with PAD.

My concern is that a population of elders could be coerced and exploited into ending a life prematurely and without documentation and reporting requirements for PAD, there would be no information to document many important details surrounding  a patient’s death with PAD.  I believe this situation could be used by someone looking to benefit themselves by a terminally ill elder’s PAD.  So what am I talking about . . . really?

In Colorado, we have a “slayer statute,” codified at Colo. Rev. Stat. § 15-11-803.  The statute generally prevents a slayer from profiting from their act of killing another.

Many exploiters of elders use tactics not unlike those of perpetrators of domestic violence.  These can include: isolating an elder from their loved ones or community members so as to make the elder dependent on the abuser; controlling basic life activities like provision of adequate nutrition, sleep deprivation or medication mismanagement; and devaluation of the elder’s dignity and personhood through words and action.

The state of Washington, which has a physician assisted death law as a result of a ballot initiative, also has a “slayer and abuser” statute, which is a rather unique combination.  The Washington slayer statute was amended to extend the slayer statute’s application to prevent financial abusers of vulnerable adults from acquiring property or any benefit from their victim’s estate.  This amendment was done during the pendency of a will/living trust challenge proceeding brought by the adult children of an elder against the elder parent’s surviving spouse, a second wife fifty years the decedent’s junior.  Here is the Washington Supreme Court’s en banc decision in In re: the Estate of James W. Haviland, which concerns this tragic exploitation.

The linking of slayer statutes and elder abuse laws is a relatively recent development.  One aspect of the link is the massive transfer of inherited wealth that has been underway for several years now.  The sad fact is, some folks simply don’t want to wait for the uncertain date when someone dies to inherit from the person.  In my line of work, these folks are referred to as “impatient heirs.”  The vast majority will not resort to violence to accomplish their goals, but it can be difficult to determine this in many circumstances.  Here’s a link to an abstract of a recent article on Expanding Slayer Statutes to Elder Abuse in the Journal of the American Academy of Psychiatry and the Law.

Why am I combining these two issues – the Slayer Statute as it relates to elder abuse and the lack of documentation and reporting requirements in the 2016 bill? 

I don’t think it is too far of a stretch that, if this “End of Life Options” bill were to become law and not provide for ANY record-keeping, documentation for either the individual’s medical record or for the public health record, that this lack of information and reporting could provide a potential avenue for death-hastening abuse of an at-risk elder, who happens to be terminally ill and whose health status otherwise falls under the purview of this bill.  The process described in the bill, devoid of any reporting requirements, opens up a vulnerable population to be exploited by an abuser such that the cause of death could be determined to have been at the terminally ill person’s own hand . . .

In short, I believe the Colorado bill’s lack of safeguards, which could otherwise serve to prevent coercion and consent, fall dangerously short as it relates to the population of elders.  For more information about other states’ existing laws, take a look at the Colorado Health Institute’s piece from January 2016 on this topic.

Here’s a recent and well-reasoned Denver Post article on this topic that focuses on the bill’s lack of requirements for oversight, documentation or enforcement.

This debate is also happening in other parts of the US where similar bills have been introduced.  Here’s a recent article about the assisted dying debate in Canada, where there is a new federal assisted dying law.  I will close for now, but will likely be writing posts to update this very controversial topic.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

Autopoiesis in Language and Meaning

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Mes Belles Ondines

 

I will begin this follow-up to my previous post with revisiting a definition of autopoiesis:

Planetary physiology is the autopoiesis of the cell writ large.

From Margulis and Sagan, What Is Life? (U. of California Press, 2000).

So the autopoiesis of self-production is a multi-layered process in which there are many different types of connections, depending on how and where we assign boundaries.  Do we see the aliveness beyond our own selves? Where our own boundaries of being are and who or what do they serve?  Two rhetorical questions which bring me to an examination of the nature of inquiry and the function of language . . . .

In the first chapter of Metaphor and Reality, Philip Wheelwright sets forth an equilateral triangle with the letters O (object), S (subject) and L (language) at each of the vertices, which he identifies as the “epistemological triad,” serving to illustrate the media of the formation of what might be called reality.  How we talk about reality, in terms of our participation in it, just as we participate in our own autopoiesis, is not simple to identify or describe when subject and object seem to change and the vertex for language is broad indeed.  How we come to describe this life each of us lives is no simple undertaking!

Further complicating this matter is looking at autopoiesis in the context of human consciousness, where autopoiesis is both a process as well as a presence, and the participation in our own autopoiesis is also participation in that of the autopoiesis of a larger context – a community, an organization or “the world” – which is constantly changing, evolving developing and if we acknowledge the evolutionary process of linear time,  this autopoiesis is constantly developing higher order structures.  This reminds me of Heraclitus’ observation – you can never step in the same river twice!

Sometimes we are invited to participate in something – before we know what it is or who it is that is being invited.  Often we are unfamiliar with the invitation and what it asks of us.  It is not known what it is – an event, a practice, a task, a knowing, an unknowing, a dance or simply play.  It seems that this participation is often like play, akin to a kind of music (which is older than language) that moves through us.  Makes me think of a previous blogpost about music, memory and dementia!

As with autopoiesis (and with the emptiness which is required for the process and which I described briefly in the previous post), within music and dance there are empty spaces, pauses, rests, hesitations – all of which serve to punctuate the content, organize the flow of expression and provide its beautiful uniqueness.  It strikes me that this is akin to the emptiness, the absence of something which the process of autopoiesis is dependent upon which I described in the previous post.  Sergius Bulgakov aptly noted:

      Creation is nothing that came to be.

In our autopoiesis, language is undoubtedly part of our creation, notwithstanding its essentially paradoxical nature of what and how “it” communicates, and which also means it can be revelatory and mysterious – just as it can be more literal and descriptive.

So back to my theme here about autopoiesis and that emptiness, which I would identify as the “longing” which keeps us moving through this life, in search of.   Perhaps here is an opportunity to look at two aspects of this longing, this quest of autopoiesis: for both knowledge and meaning.  Knowledge is defined by Google as: (1) facts, information, and skills acquired by a person through experience or education; the theoretical or practical understanding of a subject; and (2) awareness or familiarity gained by experience of a fact or situation.  This knowledge is essentially part of the world of the intellectual world, its academic nature is a collective and ongoing acquisition.  As such it is a community enterprise, one that builds upon shared connections and information and advances as a field.

Meaning, on the other hand, is not so easily defined for my purposes here. . .  Google’s definition offers this for the noun: what is meant by a word, text, concept, or action; and this for the adjective: intended to communicate something that is not directly expressed.  The root of meaning is from the German and the Indo-European root of the word is the same as that of mind, or the element of a person that enables them to be aware of the world and their experiences, to think, and to feel; the faculty of consciousness and thought.  Meaning, then, is the domain of the person and is necessarily constructed in relationship to the world and in particular to the world of experience.

These two aspects of knowledge (acquisition) and meaning (awareness) are connected and ought to be connected via autopoiesis although autopoiesis might not necessarily require the latter, but then I think of Nietzsche’s quote here: He who has a why to live can bear almost any how and would immediately reconsider that observation!  The connection between the two is manifold and one without the other is folly.  The more objective, spoken, literal and objective knowledge which is shared and makes so much of interpersonal communication possible is inherently rational and logical.  What often allows the understanding to be readily shared however,  is its rendering – which is that which means there is no life force within it and is devoid of that subjective quality of “spirit” in that it is an agreed upon construct.  Meaning is subjective and personal, it may come from the unspoken language of gesture, ritual or symbol, and it also arises from our human yearning for a language of understanding, of experience , for what lies beyond words, the emptiness required for autopoiesis.  “Significance” here is as unique as each one of us in any particular moment.

To come back to this clearing away, the emptiness of which is required in our  autopoiesis, I am reminded how the creating – or “allowing” is perhaps more appropriate – of empty space is essentially the maintaining of space for openness, possibility and creation of a new self.  If the stepping back and allowing for the creation sounds both like a process which is part of autopoiesis and also a spiritual practice, that is precisely the connection I make here.  The Jewish mystical term for this is known as “tzim tzum.”

Knowledge and meaning are entwined in meaningful ways and they need to be connected – otherwise the rational or logical knowledge is barren of any aliveness, spirit, or any significance beyond its desiccated literalness that can establish its connectedness with the rest of the person and with the human community and the autopoiesis of the world.  Stripped of any “need” for meaning or even any context for it, beyond the simple denial of any existence of meaning, we have what often appears in our present post-modern culture of death denial and questioning whether there is even any “need” for a meaning of life.  This form of “progress”” is an objective materialism that pervades our thinking about scientific “progress” and results in an intolerable reductionism, unless you are quite satisfied with that small black box of what might pass for “reality.”

©Barbara Cashman  2015   www.DenverElderLaw.org

Jefferson County Senior Law Day – Saturday June 13, 2015

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This is the season for the annual Senior Law Days, co-sponsored by the Colorado Bar Association.  There are a number of events taking place throughout the state, but this post is about the Jefferson County Senior Law Day this Saturday, June 13, 2015.  Yours truly will be presenting once again on the topic of Financial Powers of Attorney and Conservatorships.  My presentation is one of fourteen different topics on which presentations will be made in three different sessions beginning at 9:30 a.m. and finishing at 12:40 p.m.

This year’s Senior Law Day event is hosted by the Colorado Christian University located in Lakewood.  Senior Law Day is a great way for elders, adult children, caregivers and others to get good information about common concerns with aging and preventing financial abuse as well as making important plans about end-of-life health care decisions.  There are also a number of vendors who attend these events and several not-for-profits that assist elders.  It’s an excellent way for the curious to get some basic information from reliable sources and learn about community resources for elders and their caregivers.

Some of the other topics for presentation include: “A Consumer’s Guide to Choosing Nursing Homes and Assisted Living Facilities;” “Scams and Elder Abuse;” “Probate: Perspective From the Bench;” “Estate Planning Basics: Wills and Trusts;” and “Medicare Update.”  Don’t forget that there are also “Ask an Elder Law Attorney” sessions available for questions folks have for  the elder law attorneys who volunteer for these sessions.

If you are interested in attending a senior law day, but can’t attend this one, the annual Denver Senior Law Day will be held at the Denver Mart on October 17, 2015.  If you’re interested in more information about these kinds of topics, you can check out the pdf version of the 2014 Senior Law Handbook published by the CBA here.  Finally, don’t forget that there is an established “ask an elder law attorney” program at the Jefferson County Justice Center, in Golden, Colorado.  That’s where I will be Friday morning! Get more information about this service here.

©Barbara Cashman  2015   www.DenverElderLaw.org

 

August 6th Interactive Gathering on The Conversation Project

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denver elder law

DBG Japanese Garden Stream

 

I recently received an invitation for an event at The Denver Hospice (at their corporate headquarters) and wanted to share it with the community.  I have blogged previously about the importance of having a conversation about end of life wishes (and also the need for documents based on that conversation – like a health care power of attorney and advance directives) as well as The Conversation Project and so this cause is near and dear to me.  I won’t be able to attend this event, but know it will be well facilitated by Laurel Okasaki-Cardos, community educator at the Life Quality Institute.  If you are interested in participating, please email Laurel at lokasaki@lifequalityinstitute.org to get more information or RSVP.  You can also call her at 303-398-6259.

In case you can’t attend the gathering at the Denver Hospice on the 6th, Laurel offers these interactive gatherings for groups of seven or more people – free of charge – if you are interested in organizing one for your community.  Be sure to get in touch with her if you want more information.

©Barbara Cashman 2014     www.DenverElderLaw.org

The Colorado Probate Code: Compensation and Cost Recovery Act

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Swallowtail at Chatfield

Swallowtail at Chatfield

 

Last week I attended the quarterly meeting of the Colorado Guardianship Association, of which I am a member. The CGA is a nonprofit that is a multidisciplinary group of attorneys, professional fiduciaries (like the folks who serve as trustee, agent under a financial power of attorney, agent under medical power of attorney, etc.), professional guardians, as well as others involved in the provision of services for elders and disabled adults.  We have had some good programs and attorneys receive continuing legal education credit for attending, in addition to meeting with other professional with whom we have much in common and where we can discuss best practices.

The presentation was given by the Hon. C. Jean Stewart, the retired judge of the Denver Probate Court and the current president of the National College of Probate Judges.  It was a great topic (even if it might sound technical) and Judge Stewart is an excellent presenter.

Since I am rather fond of Rudyard Kipling’s “six serving men” (from The Elephant’s Child, one of the Just So Stories) – also sometimes referred to as the “five W’s” (one man short obviously) I will use them to illustrate the components of the statute.   The first serving man is “what.”  In case you’re wondering, the cite for the statute is Colo. Rev. Stat. §15-10-601.   Part six is titled Compensation and Cost Recovery.

Second, I’ll look at “where” – this is in the Colorado probate code,  and so it concerns fiduciaries (the “who”) serving in proceedings in probate court including estates of decedents, trusts, protected persons, principals (makers of powers of attorney) and others under the Colorado Probate Code (CPC).  So that is where we consider the context for this act among the components of what might be identified as “who:” it concerns an  “estate” (whether a decedent’s estate, trust, or another person whose affairs are subject to the CPC); in which a “fiduciary” is the recognized actor on behalf of the entity or person (estate); and finally, section 601 goes on to define by way of illustration what a “governing instrument” for purposes of this section might be. These definitions really reflect both the who and the where – in what type of proceeding is the fiduciary acting.

So, to cut to the chase, this statute essentially addresses HOW fiduciaries are paid. Helpful to note here is the new JDF form for use in trusts & estates filings in the Colorado Judicial system which pertains to the application for probate, like the JDF 910 for example, which now has two separate inquiries regarding compensation – one for compensation of the personal representative and for the counsel of the personal representative.

Next up is the “why” – which was one of the most important messages of Judge Stewart’s presentation.  The reason why attorneys and fiduciaries need to be familiar with this statute: to establish and maintain transparency so people know how much things are going to costs; and to give a baseline for how to determine reasonableness.  Section 603 of the statute addresses quite a few relevant factors in determining the reasonableness of compensation and costs charged to or paid by an estate.  What struck me about the message regarding transparency was that it could ease many of the concerns around our system of simplified probate in which sometimes persons take advantage of the lack of judicial supervision.  In fact, some of us who represent fiduciaries in our practice (say for example, a client who is personal representative of an estate) include language in our engagement letters regarding fiduciary malfeasance and its consequences on our continued representation.

Finally, I’ll wrap up with the last serving man here – “when.”  This involves among other things a consideration of when a family member fiduciary can expect to be paid for his or her work for an estate.  This concerns the concept of providing a benefit to the estate – which is an idea that applies to both professional and nonprofessional (family member) fiduciaries.  What I found particularly interesting here was our presenter’s assumption that family member fiduciaries are presumed to be performing their work as fiduciaries for the love and affection of/for the family member.  This had interesting implications for several of us as there seems to be a shifting consensus regarding the payment of family members for their work.

What I particularly enjoyed about the presentation was that it pointed out there are no easy answers with this statute and that if we are to assess the value of another person’s work we need to consider the previously mentioned transparency along with the importance of clarifying expectations by having a conversation or setting forth processes which will be followed.

©Barbara Cashman  2014   www.DenverElderLaw.org

You’re only old once or. . . mindful aging as spiritual practice?!

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Swan at Lough Gur

Swan at Lough Gur

In case you’re wondering, yes, I have a copy of the Dr. Seuss book “You’re Only Old Once!” in my office waiting room. What, you say your kids have never read that one to you?  In case you’re wondering, yes Dr. S was OLD when he wrote it, and it was released in 1986 on Mr. Geisel’s 82nd birthday.  It is a fanciful “day in the life” of an elder American.  I wouldn’t say it has the same level of incisive social commentary as my Dr. S. faves including The Sneetches (about the stupidity of racial discrimination), The Zax (about the wisdom of integrative negotiation) or The Butter Battle Book (about the craziness of MAD – mutually assured destruction, that Cold War relic we somehow managed to survive). But that might just be because I haven’t read this book to my kids at least fifty times.  (Maybe they can read it to me in a couple more years, if I haven’t misplaced it by then.) My other Seuss favorites are numerous  – oh, I don’t have the space for a discussion of Yertle the Turtle or Horton Hears a Who. Maybe in another blog post though.

If you’d rather listen to someone else reading the book (with the pictures of course) check out this youtube video of it. Okay, back to the aging and April Fool’s theme . . .  I am always [as a baby-boomer] struggling with coining a term for the special form of forgetfulness, cognitive compromise, dementia, whatever[!]  that affects those of us who are elder law attorneys of a certain age.  I think I remember writing a blog post once about dementia being contagious.. . .  So here goes.  A colleague and I were recently discussing our experiences with mental health challenges.  I thought this topic would make a great blog post topic, particularly for April Fool’s.  Here are a few suggested additions I propose for the DSM-VII:

Attention Surplus Disorder (ASD) –  sometimes mistaken for OCD and often referred to as “nervous Nellie” syndrome, this occurs when a person’s quality of life is threatened when their sleep is interrupted by the looming prospect of overdue library books, and their vision is impaired by hyperfocus on the physical meaning of the dark circles under the eyes or formation of crow’s feet on the face of their partner.

De-mentation – this condition is practically reaching epic proportions as nearly all Americans have “smart phones” which means that as our phones become progressively smarter with the latest technology, we, the operators of our smart phones, get dumber all the time.  For example, when was the last time you actually remembered someone’s mobile phone number (without having to look it up on your smart phone)????

Displasia – pronounced “dis-place-yeah.”  This behavior is characteristic of the opposing spectrum of the obsessive-compulsive disorder, basically it is evidenced by a person spending exponentially more than the average forty-five minutes per day looking for a particular paper on their desk or some place in their office.

Paranoid Cybercosis —  is a 20th century and present day phenomenon, the disorder based on a vaguely formed conspiracy theory that yes, just like in all the great sci-fi movies of the last millennium,  the machines are out to get us.

Reduplicative paramnesia – the belief, delusional at least 50% of the time, that a location or place has been duplicated and exists in another place at the same time.  For older adults, this can sometimes involve time travel that is otherwise known as “déjà vieux” and sometimes confused with “déjà vu.”

Stendhal syndrome (I remember him from my French class in college) is a psychosomatic illness  that can strike when a person is exposed to a large amount of beautiful things or breathtaking scenery in a short time.  If we have spent our entire lives merely surviving and tolerating our existence, beauty can be quite upsetting!

Trichotillomania – this is exceedingly rare in those of us of a certain age, because as my grandmother once explained to me, when you get old, there isn’t as great a need to shave anymore.  This one is the urge to pull one’s hair out, basically from any area of the body that still manages to grow hair.

So, you’re maybe wondering . . .  what’s this link between humor and spirituality?  I haven’t read this book, and I didn’t know the Jesuits had a lock on this, but in 1989 James Martin, SJ, published Between Heaven and Mirth: Why Joy, Humor and Laughter Are at the Heart of the Spiritual Life.  On a similar note, here’s a link to a PBS Frontline interview with Rev. Jennifer Brower, a Unitarian minister. Her premise is that the aging process affects spiritual life as a result of the developmental process of aging.  I discovered there is even a Journal of Religion, Spirituality and Aging! Who knew?

So let’s hear it for April Fool’s Day and the glorious and pervasive myth of the fool, Loki, trickster, clown, and all those other wise fool names, mythological and archetypal.  Here’s to Coyote’s medicine, may it lighten our hearts, increase our wisdom and bring us clarity of sight.

©Barbara Cashman  2014   www.DenverElderLaw.org

 

Personal Property in Estate Proceedings

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Ancient Arches

Ancient Arches

Many people have heard about the “small estate affidavit” but in fact it’s not an estate at all.  It’s an affidavit that can be completed by a successor of the decedent in order to collect probate assets which do not exceed $64,000.  (This is the 2014 year of death amount.)  A successor can be a surviving spouse, a child or other family member, and also a personal representative named in a will. Besides the limitations on the amount which can be collected using an affidavit, it cannot be used if there is real property involved.  The Colorado State Judicial website has the form and instructions here.  You can’t use an affidavit and also have an open probate for a decedent.  The Colorado probate code sections applicable to the affidavit are found at Colo. Rev. Stat. 15-12-1201 and 1202.  An affidavit can be used to simplify the collection of probate assets, or those assets titled solely in the name of the decedent.  Ten days must pass before the affidavit can be signed.  There are good public policy reasons for this waiting period.  The time period for an application for informal probate with a will, however, is only five days after the decedent’s death.

Okay, I mentioned “probate” property . . .  what’s the difference between probate and nonprobate property?  In a nutshell, nonprobate property passes automatically to a survivor by the way the asset is titled (as in joint tenancy) or if it is an asset that has a beneficiary designation.  Probate property, very broadly, is property that was held by the decedent that didn’t pass to a survivor via nonprobate means (or those means failed) or was titled solely in the decedent’s name.  There are many assets now that are commonly held that are nonprobate assets like IRA accounts, real property held in joint tenancy, and so on.  The lines that distinguish between probate and nonprobate property or assets can change or be modified by the asset’s owner – either by action or inaction.  When people come in to talk to me about estate planning and we draft a will, it is after a process of identifying assets and categorizing them as probate (which typically pass via a will) or nonprobate.

So back to the affidavit . . . the person making the affidavit, known as an affiant, is treated much like a personal representative in their presentation of the affidavit to third parties.  The personal representative is the person who is in charge of administering a decedent’s probate estate.  The challenge here is that the statutory language is silent on how someone goes about recovering property that was improperly distributed by an affiant.

Sometimes it is best, given all the circumstances at play, that an estate not be opened for a decedent.  The affidavit to collect assets can be very helpful in this regard.  But remember that the Colorado DMV prefers that you use their form available here and not the one in the state judicial website if a car is involved in these circumstances.

So, what about your personal property,- your stuff – in the probate context when there is a will and an estate opened? Colorado law, like that of many other states, provides something called a “memorandum disposition of tangible personal property.”  Okay, so what’s the difference between tangible and intangible personal property?  When you think tangible, think stuff – like china cabinet contents, mementos that hold emotional value (many people tend to fixate on the financial value of the item.  Intangibles are things like digital assets, and those are a bit more complicated.  The nice thing about the memorandum disposition is that is a document that can be easily changed and updated and can be incorporated by a person’s will be reference to it.  This allows for flexibility in deciding to whom your personal property will be given as what you have, get rid of, and acquire changes over time.

In addition to the memorandum disposition, there are creative ways in a will to divide up personal property.  Personal property can of course be mentioned specifically in a will as a devise of a particular thing to a particular person, and it can be given as a gift to a class of people like children or grandchildren, and there are many other ways of dividing the property if a division isn’t made prior to the person’s death.  These could include a private or a family auction, depending on the nature of the property and considering the emotional value of the items in relation to the financial value.  Many people writing an estate plan focus on the financial value of  the property when it is more often the emotional value that is most dear to the surviving loved ones.  Just another reason for a person to share the stories that go with those mementos, so that the stories get handed down along with the particular item.

Making plans for the disposition of your personal property can make a personal representative’s and your surviving family members lives much easier.  Don’t forget to include those plans as part of a comprehensive estate plan.

©Barbara Cashman  2014   www.DenverElderLaw.org

December 10th is Colorado Gives Day!

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Marble Snow

This year’s tagline for Colorado Gives Day is “Give Where You Live.”  Many of us want to make a difference in our community and sometimes we think about this in terms of the perceived biggest impact –like  helping out the poorest of the poor on a global scale, like with The Heifer Project.  There are many such worthwhile causes to support, but Colorado Gives Day is about supporting local charities that help the local community.  That kind of giving makes a different connection within a closer community. Giving money and time to causes we support tends to make us happier, more engaged people – that has been established by many studies.  The bigger issue is whether happier people give or giving makes people happier.  The causal relationship there hasn’t really been established by those studies, but does it really matter?  Giving is a way of showing gratitude for what we have and generosity of spirit in sharing.  Every wisdom tradition I am familiar with gives a central place to charity, to sharing what we have with those who are in need.

One meaning of charity comes from the Hebrew word tzedakah, which means justice or righteousness, based on the idea that our possessions, like our persons, are not really our own but are lent to us, entrusted to us for safekeeping.  That safekeeping could be considered like a trust, where the person in possession of those worldly goods is more like a trustee, charged with a duty of giving to those in need.  In Buddhism, giving is essential and is recognized as part of basic human goodness.  Giving to others can be a means of transcending the limitations of the self.  I like the emphasis on giving as a two-way street, that giving is only made possible when someone is able to receive a gift.  The act of giving itself requires a community of at least two persons – a giver and a receiver.

Charitable giving is a special kind of giving in this regard as it is one that is typically given without expectation of reward.  Perhaps this is the basis from which the happiness arises.  So often our expectations get in the way of our enjoyment of life and plans for happiness.  Maybe giving for its own sake is its own perfect reward in this way.  The broad definition of charity involves giving not just of money but of time and also a certain reservation of judgment about others’ situations.

Maybe giving financial support to a local charity can accomplish all of these things in ways that far away charitable or relief efforts cannot.  I am not suggesting answers here – only questions!

Last year I suggested three charities I am familiar with from my work with elder and disabled communities.  Once again, ColoradoGives.org has a really helpful website to help you pick a charity to support by “giving where you live.”  Check it out here.

I donate some of my volunteer lawyer time to Metro Volunteer Lawyers, so I think they’re a great cause to support.  Click here to donate to them. I am one donation short of being a five-gallon donor at Bonfils Blood Center, but many people who want to donate are unable to, so you can support them financially here.  Finally, the Life Quality Institute is a local nonprofit that provides important educational and outreach services about palliative and end of life care that can ease a person’s physical, emotional and spiritual pain associated with the end of life.  You can find out more or donate to them here.

One nonprofit I didn’t previously know about – weecycle – is the beneficiary of a local attorney’s fundraising effort.  You can read and watch a video about Carlos Migoya’s Charitable Beard on SoloinColo here (and you can see for yourself that yes, his beard is of biblical proportions!) .  Give the search capabilities at www.coloradogives.org  a try – you can donate to local dance companies, a homeless and runaway youth shelter, educational foundations, food banks, the range is wide in purpose and is statewide.

©Barbara Cashman 2013     www.DenverElderLaw.org

New Case Law Shows Teeth in Uniform Power of Attorney Act for Breach of Agent’s Duties

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Irish Arches

In an opinion published 11/7/13, the Colorado Court of Appeals ruled on substantial questions relating to the Uniform Power of Attorney Act (UPOA) as it relates to an agent’s duties and the types of activities which a power of attorney (POA) authorizes.  In People v. Stell, 2013CA0492,   the Court of Appeals reversed and remanded with directions a case involving a criminal indictment of an agent who was acting under a POA.  This decision has wide and beneficial implications for principals who have executed  POAs and whose agent are acting in their own self-interests,  are converting their principal’s assets for the agent’s use or otherwise stealing from them.  Here’s a sketch of the factual background of the case. Thanks to Vicki H. for sharing this case with me!

The principal (referred to as “victim” in the opinion) executed a POA in 2009 in Virginia.  Both Virginia and Colorado have adopted the UPOA so, even though the statutory cites vary, the law is substantially the same.  In the POA, the Principal named as agent his son, the defendant Stell.  While acting as agent under the POA, Stell wasted no time liquidating all of principal’s bank accounts, CDs, a 401K account, a piece of real property and the timber sold from that land – to the tune of $453,928.81.  The following year, Stell proposed that the principal place other assets into a trust so they would be protected from creditors.  The trust document that principal signed at his agent Stell’s direction did not name the principal as beneficiary of such trust and so, principal was permanently deprived of the use and benefit of that property.  In October 2010, principal terminated the POA and asked the Denver District Attorney’s office to investigate.  As a result of such investigation a nine-count indictment was drawn, eight counts for theft and one count of conspiracy.  The appeal of the trial court’s ruling is based on the dismissal of counts 1, 2, 4 and part of 3 – relating to the authority of the agent Stell to transfer principal’s property as agent under the POA.  In its dismissal of those counts, the trial court ruled that because the agent Stell had authority under the POA to do anything with the principal’s property that principal could do with it, that Stell couldn’t commit theft against his principal.  The Court of Appeals soundly rejected this line of thinking.

The POA is a document that confers broad powers, but it is no license to steal.  In this criminal case, the Court of Appeals examined carefully the fiduciary duty owed by an agent to his principal under the UPOA.  Citing a Virginia Supreme Court decision, the Court of Appeals stated that “powers of attorney are strictly construed.”  (Opin. at para. 17) Going further, the court ruled that the expansive language in a POA should be interpreted narrowly and should be construed in light of the surrounding circumstances.  It soundly rejected the argument that, because a POA typically gives a broad grant of authority, it could somehow give an agent the authority to misbehave, commit theft and otherwise breach fiduciary duties owed as a consequence of the nature of the principal-agent relationship.

The fact that a POA contains a broad grant of agent authority does not mean that an agent is nonetheless duty-bound (as in an agent’s fiduciary duty, as described in the UPOA) to exercise authority in acting as agent in the utmost good faith, loyalty, and other duties owed.  The Court of Appeals rejected that trial court’s reasoning that a broad grant of authority to the agent implied that an agent’s actions that were in violation of the fiduciary duties owed were somehow still “authorized” because agent was acting under a POA.  In paragraph 21 of the decision, the Court of Appeals identified the factual questions appropriate for a jury’s determination of whether an agent under a POA was acting within or outside of his or her scope of authority as determined by agent’s fiduciary duties.  They included the following questions of whether agent acted: (1) in accordance with principal’s reasonable expectations and consistently with the principal’s interests and intent; (2) in good faith; (3) loyally for the principal’s benefit; and (4) with the care, competence and diligence ordinarily exercised by agents in similar circumstances.  In reversing and remanding the counts of the indictment dismissed by the trial court, the Court of Appeals gives an indication that the days of the POA as a “license to steal” for noncriminal law purposes are over.  This is an important development for Colorado – for both the new mandatory reporting of financial exploitation law(read my post about that law here ) as well as the ability of exploited elders and other at-risk persons to recover funds  improperly taken from them by an agent under  a POA.  It gives more protection for principals who have been taken advantage of by their agents to establish that the agent’s conduct was improper and to strengthen the ability to recover such funds that were improperly used or converted for the agent’s exclusive benefit.

©Barbara Cashman 2013     www.DenverElderLaw.org