The Few, The Brave, Those Willing to Plan for Dementia

Scottish Spring

This is the second installment of my series.

If you’re reading this post you might be one of the few people willing to talk about dementia – specifically about YOUR dementia.  You may have determined, regardless of whether you think you will suffer from some sort of dementia or significant cognitive impairment in later life, it’s a good idea to express your wishes while you can. 

Making decisions for a person with advanced dementia is difficult at best, and at its worst, making the decisions in a vacuum – without any idea what the person with dementia would have wanted – is exponentially more difficult.

Do you have strong preferences about how you wish to be treated if you suffer from dementia?

Perhaps you have been around long enough or have simply paid attention to witness the challenges and difficulties we have with dying in America, particularly with the kind of dying which appears to play out in slow-motion – which often accompanies advanced dementia.

Who will be your care partner?

Some years ago I wrote a post with a link to a “bill of rights” for dementia patients and here is a current link to a trademarked bill of rights for folks with dementia. These documents tend to be focused on dignity, maintaining a person’s “right of association” with people and places where they are valued and having a trained “care partner.” The people I have worked with who have been diagnosed with early stage dementia and who participate in research studies have usually identified a “care partner” because that is part of the preparation for the advancement of the disease.

The dementia directive’s choices: freedom from and freedom to…

These older types of dementia directive tend to be centered on holding to a person’s traditional preferences.  In civil or human rights terms, these types of statements are positive human rights and many are aspirational in nature.  But these statements also have an important place in reminding all of us of our inherent dignity, regardless of our cognitive abilities.  But many people want to take things further….

How much further? I received a call from someone whose sibling was gravely ill and in hospice care.  While he had been expected to die some days or weeks prior to the phone call, the ill sibling was hanging on by a thread while in hospice care.

The question posed to me was straightforward: can a health care agent for a dying person arrange for getting a prescription for life-ending medication for the terminally person?

The answer is “no”.  Under our End of Life Options Act, only an adult (in hospice care) who has decisional capacity can seek such a prescription.  A person with advanced dementia or someone who lacks decisional capacity cannot get aid in dying meds. The law does not allow an agent for an incapacitated person to procure such a prescription

The terminally ill sibling had a form of dementia caused by major organ failure, not Alzheimer’s or another type of dementia which has a disease process of many years and so was not able to assist the dying sibling in this way.

What exactly is an advance directive for health care?

I find this question requires a lengthy answer because “advance directive” can include a medical power of attorney, a living will, along with other documents or directives.  An advance health care directive is typically used for setting up the legal framework for someone to name another person to make health care decisions for them (a medical power of attorney) and to provide them some guidance and direction about end-of-life choices (a living will).

This dementia directive has been in the news lately and has been the subject of a couple posts in my listserve communities.  A CBA subcommittee has been formed for this topic, with the goal of providing a suitable form for clients, and yours truly is part of the subcommittee.

So, a dementia directive is a medical directive?

The answer here is a bit tricky! Why? AD is a neurological disease which is generally covered by a medical directive, but there is also AD with behavioral disturbance.  The dementia directive falls in the rift between neurology and psychiatry that was created in the last century.  For our purposes in Colorado, it appears to fall under the category of advance medical directive, but in other states such as Washington, the dementia directive is a mental health directive.

More about the nuts and bolts of the contents of the dementia directive in my next installment!

© 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.

The Durable Power of Attorney: Of Rights and Relationships

Ancient Italian Stone

There has been a lot of heat generated in the last couple years by groups protesting abuses of guardianship proceedings in several states. In a couple earlier posts this year, I examined what guardianship reform might look like.  In this post I’m combining a reprise of my “prosocial” theme with a popular topic – the general durable power of attorney or DPOA for short.

The DPOA Creates a Legal Relationship

The DPOA is an extremely valuable tool to help us manage our longevity.  Each of us will die one day, but many of us will be affected by some incapacity because of an accident, surgery, condition or disease process.  We don’t usually know if and when we will be affected by incapacity (unless we have a diagnosis of a brain disease like Alzheimer’s or another disease that implicates our cognitive functioning).  It might be temporary incapacity or permanent in nature and worsen over time.  When will we know if we need a DPOA? Well, after it’s too late to get one!

Death is a Certainty, Disability is an Uncertainty

Many of us are reluctant to think about our death, and for some just thinking about disability – particularly Alzheimer’s disease – can be more frightening than the prospect of death!  For this reason, it is difficult for many of us to think about the circumstances under which a DPOA would be used.  But the fact remains that a DPOA is a much simpler, cheaper and less restrictive tool than the alternative faced when one is beset by an inability to manage finances or, worse, incapacity: a conservatorship.  Read more about conservatorship in Colorado on the Colorado state judicial website or check out the Colorado Bar Association’s flyer.  Both an agent under a DPOA and a conservator act in a fiduciary capacity for the principal and the protected person, respectively.  A fiduciary is a person who has a relationship of trust and confidence with another person and the legal relationship is the basis for a duty of a fiduciary to act in furtherance of the other’s persons benefit or in pursuit of their best interests and expressed wishes.  There are many types of fiduciary relationship in the probate court context – but only some of those fiduciaries are court-appointed.  For purposes here, we are talking about an agent named in a DPOA acting as a fiduciary for the principal.

A DPOA is a very powerful document and when the wrong person is named as agent, the agent can do much harm.  But the DPOA is still an indispensable document because of its power to be used “in case of emergency.”  As a planning tool, the DPOA helps people avoid much more invasive and expensive legal proceedings which are typically more work for the agent.  There are ways to draft and tailor a DPOA to deter exploitation and provide for transparency which can make exploitation much more difficult.  Here are several points to consider:

Choose your agent and successor agent very carefully

Many people think getting a DPOA is just filling out a form, but in fact there is lots of counseling which most of us in this field of estate planning and elder law do when we assist our clients in identifying who is the right person for this important job.  Is the person named trustworthy?  Are they financially savvy?  Do they keep good records? Are they careful with money?  Will the agent faithfully perform according to the principal’s expectations or desires?  Remember that the agent works for the principal – and not the other way around!

  • Consider naming a “POA protector”

This person can perform a role similar to that of a more commonly known “trust protector” – someone to look in on things from time to time or on an as needed basis to ensure that the agent is performing their fiduciary role adequately.  A good way of using such a POA protector is to name a third person to perform an accounting or some other oversight role.  This can be particularly helpful in the event the principal loses the ability to manage their own finances or otherwise lose capacity.  While this arrangement may sound intrusive, it may help smooth out bumps in the road among siblings after a parent becomes incapacitated.  An elder parent’s slipping into advanced dementia can cause a lot of conflict in families and a POA protector can help provide transparency which can result in lowering conflict or distrust.

  • Take care to limit or otherwise define an agent’s gifting power

Under the Colorado Uniform Power of Attorney Act, an agent does not have the authority to make gifts to themselves unless the DPOA makes such a grant specifically.  But keep in mind that this prohibition will not deter bad actors – so it can be helpful to spell out such provisions to make the prohibition more apparent to increase the detection of prohibited self-gifting by third parties – like a principal’s bank or other financial institution.

  • Make sure the DPOA refers to “hot powers”

What my colleagues and I refer to as “hot powers” are those powers that most agents will not need, and which must be specifically granted – like the agent’s ability to change the beneficiary on a life insurance policy or an IRA account for example.

  • Remember that A DPOA can be revoked and replaced

Keep in mind that the DPOA is not “written in stone” and can be revoked so long as the principal retains capacity to do so.  This is a relatively simple way to take away an agent’s authority, but if the agent has been acting on a principal’s behalf (either with or without the principal’s knowledge) then the principal will need to contact third parties to notify them of the revocation of the DPOA and/or the agent’s authority.

In the elder law and estate planning context, taking stock of our relationships with those with whom we are close requires us to examine who we are naming for which “job description” and to ensure the named person is the right one to perform the job.  Choose carefully!

© 2018 Barbara Cashman  www.DenverElderLaw.org

 

 

Observing World Elder Abuse Awareness Day, June 15, 2018

A Wee Highland coo…

WEEAD is Friday! If you want to show support in social media for this day, try this Thunderclap link to add your voice.  I write this post after a move to a new office, which is comfortable and spacious, where I am nestled amidst tenants who are friendly and engaging.  It has happens to be just a few blocks from where I attended junior high school.

Community has many definitions depending on the various contexts of our interactions with each other and where we are interacting with each other.  A big part of community is seeing the other person and being seen by another. Being seen is something we take for granted.  Last week, a man hid himself under the front of a public bus, which then dragged the man’s body nearly half a mile until coming to a stop.  This took place on the street where my office is located, right in front of my office window.  But I didn’t see it happen.  The bus driver obviously didn’t see the man, which ended in the man’s tragic death.  It seems that our ability to see one another is becoming increasingly more difficult.

WEEAD – Prevention of Elder Abuse Begins with Seeing Elders as a Contributing Part of Our Community

In our world, seeing is a precursor to engaging with the other.  Engagement can lead to effective participation.  Take a look at this link to The Road to Elder Justice Virtual Art Gallery with many beautiful expressions of what elders contribute.  On this WEEAD, events are scheduled in nearly every state to raise awareness.  Check out this event organized by the Boulder County Area Agency on Aging.  Here’s a link to a Facebook Live broadcast today at 5:00 p.m. MDT about how the Office of the Inspector General at the Social Security Administration detects and prevents suspected elder financial exploitation  and how people can protect themselves and others from mistreatment.

A question follows: what do we see about elder abuse and how do we see it?

One helpful resource has identified the beliefs about elder abuse as “the swamp:” which includes limiting beliefs (often mistaken for conventional wisdom…) such as:

modern life is the problem – we simply don’t care enough about older people so caregivers are pushed to the limit and older people are devalued;

there are not enough resources for any solutions – there is not enough money for prosecution and surveillance of perpetrators, or raising awareness and education about elder abuse to help recognize it or for providing support for caregivers and as a result, nothing can really be done;

the individuals affected are really the problem – perhaps these elders had it coming as payback, many older people are difficult to deal with or have personal weaknesses, the perpetrators are greedy, lazy, opportunistic, or bad people who cannot be deterred, and we’re either all responsible for it or no one is;

elder abuse is vaguely defined and hard to recognize for many people – elder abuse as such is not acceptable, but many forms of neglect don’t qualify as abuse, including sexual abuse of elder women.

This ”swamp” thinking described above is hardly “thinking”, as these represent only relatively common types of limiting beliefs like: universalizing a problem to inflate its significance and make “solving” it impossible; personalizing elder abuse to make it only about certain types of individuals who are affected; catastrophizing it so that the only “response” can be hand-wringing; and making unrealistic or false distinctions about what is acceptable behavior and what is not so as to make identification of the real problem impossible.

We Must Refuse to Accept That Elderhood is Only About Loss and Marginalization

Like the “swamp thinking” above, many of us have unexamined beliefs about what it means to be “old.”  These beliefs can reflect scarcity beliefs and thinking about the world each of us lives in.  Those beliefs can dictate what we see in elders and how their role in society is marginalized. In this respect, the marginalization of elders as a kind of “lesser than” or “has been” segment of our culture and economy becomes a kind of collective self-fulfilling prophecy.  Sociologist Robert K. Merton coined that phrase in 1948 with these terms:

The self-fulfilling prophecy is, in the beginning, a false definition of the situation evoking a new behavior which makes the original false conception come true. This specious validity of the self-fulfilling prophecy perpetuates a reign of error. For the prophet will cite the actual course of events as proof that he was right from the very beginning.

Looking at the relationship between our diminished expectations of what is possible in elderhood and what we expect to see, based on our expectations, generally leads to …  These expectations become the self-fulfilling prophecy, for ourselves and for others.  But, this challenge becomes an opportunity to change our perspective and change our minds.

There are good resources available that help us to reframe the story of elder abuse from one based on inevitable decline, vulnerability and victimhood to a story from a different perspective, reframed to tell of empowering ourselves and elders to engage with and participate in pro-social activities designed to strengthens the ties which already exist – instead of disowning them because of some of the difficulties we have come to experience.

I will write more about pro-social behaviors we can nurture and support to prevent elder abuse – as individuals and collectively.

© 2018 Barbara Cashman  www.DenverElderLaw.org

Is Guardianship Reform Coming to Colorado?

One Stone of an Ancient Ring

I’m beginning a series of posts about guardianship reform and its relationship to elder abuse.

What is known as “guardianship reform” is a very hot topic these days.

On the local level, I noticed that a candidate for a Littleton City Council seat made a critical reference to the powers of the Adult Protective Services system to investigate the welfare of a local resident (who apparently has dementia) living in her own home.  In the national press, guardianship reform has received lots of attention.  For Colorado, we have had versions of the Uniform Law Commission’s Uniform Guardianship and Protective Proceedings in our probate code for quite some time.  You can review the User’s Manuals for Guardians and for Conservators in Colorado here.

The Uniform Guardianship, Conservatorship and Other Protective Arrangements Act

But there is a newer 2017 version of a uniform law which the Uniform Law Commissioners have prepared for adoption by the states.  It is known as the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act, or UGCOPAA.  You can read more about it here.  A sub-committee of the Trusts & Estates and Elder Law Sections of the Colorado Bar Association is presently reviewing its provisions to examine how its provisions would impact existing Colorado law (our code and case law pertaining to its provisions).  More about that later!

This post is the introduction to the series and so I ask the basic question:

What does guardianship reform have to do with elder abuse prevention?

Apparently, plenty!  Particularly if you happen to be the child of a celebrity whose stepmother acted as your father’s guardian and limited or prevented you from visiting your parent during the end of his life and while he was suffering from dementia. The connection came to me the other day in the form of a Google alert.  It cited to a recent article about Casey Kasem’s daughter Kerri, who had a dispute with Kasem’s wife about his care while suffering from Lewy body dementia as well as the disposition of his last remains.  Glen Campbell’s children also had difficulties with their stepmother and their effort resulted in a Tennessee law that will “protect elderly.”  This LA Times article is about Kerri Kasem teaming up with Catherine Falk to advocate for more restrictions on a guardian’s authority which would allow more family members and others the right to visit a person under a guardianship.

In coming posts, I will explore topics including:

  • The importance of making your fiduciary/care wishes known If you are part of a dysfunctional family;
  • Who and what are fiduciaries in the elder law and probate context and why have they become so controversial?
  • What are unlimited guardianships, limited guardianships and “other protective arrangements;”

As well as other topics that arise in this context.  So please stay tuned!

© 2017 Barbara 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

Elder Veterans and Elder Abuse

prevent abuse of elder veteran

ROTC picture of my Dad, who became an officer of the U.S. Army Air Corps

In observance of this Veteran’s Day, November 11, 2017, I wanted to share a blog post on this topic as well as some valuable resources.

“Boots on the Ground” to Prevent Exploitation of Elder Veterans

I want to begin with a shout-out for: Boots on the Ground – Fighting Financial Abuse of Elder Veterans by Tamari Hedani, Associate Director of the Elder Abuse Prevention Program at the Institute on Aging.

Fraudsters and Scammers Often Specialize in Particular Target Communities

Financial predators often “specialize” in identifying their victims by targeting specific populations and communities.  We know this is true for elder veterans.   I recently read an article about the “ghost scam” in New York City, where elder Chinese immigrants have been victimized by well-organized groups of scammers looking to take advantage of a common language and cultural ties for the purpose of stealing money from the immigrants.

Some People Who Claim to Be Offering Assistance to Elder Veterans Are Looking to Take Advantage of Them

There is an unfortunate variety of elder financial exploitation among the community of elder veterans.  Keep in mind that it is against the law to charge veterans or their families to fill out paperwork for the purposes of applying for benefits, and veterans and their friends and family members need to be reminded of this.  There are firms who do attempt to charge money for these services, and they should be reported, along with any kind of suspected fraud.

Fraud against veterans can involve variations on an old scam and involve bad advice concerning eligibility and result in financial windfalls for the seller of annuities or insurance.  The AARP warns in a recent post of four types of scams: the “cash for benefits” scheme; the “update your military file” scam; charity scams involving money for sick  or disabled veterans; and the “Veterans Choice Program” scam.  but worse yet are the pension poaching scams and other financial abuse of elder veterans.  Here is helpful information  from the Center on Elder Abuse about what a retired veteran needs to know before assets are transferred in order to qualify for benefits.

Whether Elder Veterans Are Aging in Place at Home or Living in Communal Settings, Important Resources Are Available to Assist in Detecting and Reporting Suspected Abuse or Exploitation

On the topic of benefits, the Veterans Health Administration (part of the Department of Veterans Affairs) and the U.S. Department of Health and Human Services developed the Veteran Directed Home and Community Based Services program to provide wider choices concerning long-term care services and living at home as long as possible.

Elder veterans and their loved ones have resources available to assist them in detecting and reporting elder exploitation and abuse.  This flyer from the US Department of Justice’s Elder Justice Initiative contains phone numbers for immediate assistance and other helpful contact information for veterans.

© 2017 Barbara Cashman  www.DenverElderLaw.org

Elder Abuse Detection: the Vital Role of the Physician

Flowers in Stone

Colorado physicians are mandatory reporters under the Colorado elder abuse statute.  See Colo. Rev. Stat. §18-6.5-108(1)(a) – (1)(b).

There is typically a lot of shame and guilt around abuse or exploitation with an elder victim, particularly when the abuse is perpetrated by an adult child or family member of the elder and the elder may be reluctant to take any protective action on their own.  The elder often suffers alone and in silence and will sometimes neglect themselves as a result.  Remember that we don’t really have any firm grasp on how rampant elder abuse or exploitation is in our country due a number of factors which include: the reluctance of a victim to self-report; the variety of state law definitions of what constitutes elder abuse; and a lack of any central clearinghouse for collection of state or federal data concerning reports of elder abuse (in its different aspects).

Financial exploitation, emotional or physical abuse tend to have serious and life-shortening health effects for an elder.  Remember that a 2009 JAMA article on Elder Self-Neglect and Abuse and Mortality Risk stated that elders who have been abused have a 300% higher risk of death compared to their age cohort of those who have not suffered such abuse.  This is most certainly a health issue for at-risk elders and this fact makes it that much more important that doctors, particularly ER (or ED) doctors be trained to recognize the signs of abuse or self-neglect resulting from mistreatment.

The ER doctor sees not just the immediate physical effects or injuries of a physical abuse or emotional abuse (spiking blood pressure, increasing risk of stroke or heart attack) but they also see the effects of depression and other factors which both contribute to an elder’s isolation and vulnerability and are the ongoing results and manifestations of the elder’s victimization.

A recent Kaiser Health news article recently highlighted findings from a study in New York on increasing ER doctors’ awareness of signs of elder abuse.  Some of the training is around going behind the explanation of the injuries – usually from a fall or some other accident, and asking questions which may uncover the abuse which caused the “accident” and its injuries.  We have a long way to go to train more ER doctors to be up and running mandatory reports.  Doctors have made huge strides in recognizing other “accidents” or injuries resulting from domestic violence and child abuse and we need to have the same strides made for the detection and reporting of elder abuse.  It’s time!  We need to connect the ER doctors more effectively with the agencies involved in assisting victims – adult protection services and law enforcement agencies.

Here is an informative pdf from Florida State University’s National Prevention Toolkit on Domestic Violence for Medical Professionals. You might think it has to do with domestic violence, but it is a document that looks at each of the fifty states’ laws on reporting elder physical abuse. It identifies the reporting law for elder abuse, identifies who are the mandatory reporters (especially physicians and other health care professional) and provides some detail concerning the applicable civil and criminal statutes.

Why is it important to empower doctors with this information? An article from 2015 on physician screening for elder abuse observed:

Healthcare workers, more specifically Emergency Department physicians, are in a unique position in which they can not only screen and detect elder abuse in their patients, but also can change the abusive situation and prevent its continuation.

A brief article on emergency department care (filed under elder abuse treatment and management) urges doctors to take the time needed to assess a suspicious situation, noting that elders do not usually self-report and observing there may be concerns around balancing autonomy and safety.  Referral to APS is noted as “vital to decrease morbidity.”

Physicians and other health care professionals can provide important, necessary and perhaps life-saving medical care to victims of elder abuse.  Here is a link to a webinar on the ElderJustice.gov site to a webinar entitled “How EMTs Can Help Identify and Report Elder Abuse.”  When there is widely available training of medical professionals about how to ask and what to ask an elder on this difficult topic and there is also familiarity with available reporting units (APS or law enforcement) and sources for service referrals to assist the elder, elders in our community will be better served and the community will have another valuable resource for reporting incidents of abuse.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

The Eclipse and the End of Life As We Know It

True Illusion

The eclipse that is set to occur on Monday, August 21, 2017 is a big deal. I have several friends who are traveling to get a better view of this event.  One couple I know is going to Fort Laramie, Wyoming and other friends to McCook, Nebraska.  Here’s a handy map that shows the strip of total eclipse. Based on my research, the last coast to coast eclipse in the US was ninety-nine years ago.  I remember seeing a partial eclipse in Denver almost thirty years ago.  It was pretty cool.  So, if you want to “prepare” for this eclipse, go to this link on the NASA website.  After all, it’s set to last for nearly three hours, reaching its maximum at 11:47 a.m. in my neck of the woods.

So what is it about the eclipse that would cause me to couple it with. . . the end of life?!  Well, here goes.

The word eclipse comes from the Greek ekleipsis, which means abandonment, cessation, failing, omission or flaw.

But remember that the eclipse merely obscures the sun from our sight – the moon appearing before the sun to block it does not extinguish the sun, but from our eyesight-based superficial understanding of what we think we see. . . . well, what’s the difference?

It’s a matter of vision, not eyesight.

Perhaps we eclipse-seekers are simply in search of awe, what some of our forebears would call miracles. Where should we search – in the familiar places or the unfamiliar, even uncomfortable ones? That’s hard to say. Few of us look for that awe in the mundane and everyday, but that is almost always where it seems to be found, discovered, seen.

This awe can cause a cognitive shift in our awareness, as in the “overview effect.” The term was first coined by Frank White in his 1987 book The Overview Effect — Space Exploration and Human Evolution and is described in this Wikipedia entry as

the experience of seeing firsthand the reality of the Earth in space, which is immediately understood to be a tiny, fragile ball of life, “hanging in the void”, shielded and nourished by a paper-thin atmosphere. From space, national boundaries vanish, the conflicts that divide people become less important, and the need to create a planetary society with the united will to protect this “pale blue dot” becomes both obvious and imperative.

It strikes me that this eclipse, and its draw to our experience of life, is not unlike the awe at the end of life. The drawing and that movement is perhaps generated in different directions so to speak. We can “attend” the eclipse and experience it in ways we enjoy, but the end of our life demands a different kind of presence – one no less awe-some, one that we may think we are not quite ready to experience.

In his book Places of the Heart: The Psychogeography of Everyday Life, Colin Ellard looks at places of awe.  At 154 of the book he looks at research into experiences of awe which focus on two essential aspects: a feeling of vastness and a sense of accommodation.  Vastness is the feeling of hugeness and grandeur, while accommodation describes our response to what created the feeling.  Ellard notes this often involves contradiction. An excellent article on awe (and its self-diminishing aspects) and prosocial behavior can be found here.

What is the inevitable here? We can easily face and even celebrate the inevitable when it is. . . . not too close and personal!  But what of dying and how can we recognize it as it approaches and obscures our sight ? Most of us don’t want to see death coming, so we turn away!

When people refuse to have the conversation about dying and its uncertain circumstances, to name or appoint someone to speak for them in the event they are unable to do so on their own, well – then the doctors will decide for you.  Here’s an interview with Dr. Jessica Zitter, ICU and palliative care doc and author of Extreme Measure, a book about the ethics of end of life medicine. Thanks for sharing that with me Georgine!

So maybe there is some preparing we can do for the eclipse(s) of our life. . . .   I think these Buddhist sayings (dhammas) sum up this essential changeable quality of our nature and that of the cosmos most succinctly:

I am of the nature to decay, I have not gone beyond decay.
I am of the nature to be diseased, I have not gone beyond disease.
I am of the nature to die, I have not gone beyond death.
All that is mine, dear and delightful, will change and vanish.

It’s a hard place to just be, to be with the uncertainty – will there be a sun that returns after the moon passes over it completely?

The eclipse of –  disease, misfortune, old age, fear of change, death.

Perhaps we can see this eclipse opportunity as an invitation, a path, to assist us in recalling how to revere, to feel deep respect or awe for something, for our relationship with the world and with each other.  In this respect, we remember reverence through nature – our nature – not outside, but inside each of us.

© 2017 Barbara Cashman  www.DenverElderLaw.org

Capacity, Incapacity and Vulnerability

Old boats on the Isle of Mull

This is the last post (for now at least) on the topic of capacity and incapacity. In my field of practice, I must be comfortable with making assessments of capacity concerning potential clients and I must also be familiar with the panoply of assessment tools used by the medical establishment (and psychologists who perform neuropsychological evaluations of capacity).

Capacity and incapacity are legal constructs, but they often arise within a medical context and are typically established (in the Colorado probate code as a requirement for a physician’s letter to support a petition for guardianship) with reference to medical evidence relating to a person’s cognitive capacities or mental status.  Interestingly, issues of medical capacity, or what is commonly referred to as “decisional capacity,” is something in which the court system is rarely involved.  So this relationship between legal and medical capacity is not much of a two way street!

In this post I’m looking at where these two notions of capacity and incapacity can meet.  Sometimes we hear that an elder is not capable of doing something any longer – for physical, cognitive, psychological or emotional reasons, and we often fail to consider the intersections of these parts of each of us as people.  We must depend on the integration of those capacities for our continued functioning.  Sometimes it can be very difficult to determine whether a difficulty is short lived or temporary or whether it is a harbinger of greater difficulties which lie ahead.  We each face these challenges alone, but we must rely on others in this stage of our lives, just as we have in earlier, higher functioning stages of our lives – but most of us  struggle mightily with our vulnerability.  The NIH website has a list of resources available for dementia caregivers available here.

There is an intersection between disability law and elder law in the approach to how we facilitate the assisted decision-making on behalf of another as well as the living arrangements for an incapacitated adult.  This is the term  ”least restrictive means” or also “least restrictive environment.”   The former term is distinguished from regulatory and constitutional law, in the probate incapacity context it is the language of the preference for limited guardianship over unlimited or plenary guardianship.  For the latter, we see the term in the federal Individuals with Disabilities Education Act (IDEA) which refers to inclusion and mainstreaming, which are of obvious relevance and value to elders who are losing or have lost capacity (ies).

The parallels between the rights of the disabled and the rights of incapacitated elders are numerous.  A large number of elder law attorneys practice in both fields of law because there are so many similarities.  Here’s a link to the Guardianship Alliance of Colorado’s website, which has great resources relating to protecting adults with disabilities.

This determination of incapacity sounds like a one-way street from which there is no turning back, but that is not the whole story.  I came across an interesting article by law professor Nina Kohn and Catheryn Ross about how a person previously stripped of “legal personhood” can regain their legal status.  You can read “Lawyers for Legal Ghosts: The Legality and Ethics of Representing Persons Subject to Guardianshiphere.  The introduction recounts the story of Jenny Hatch, a young woman with Down’s syndrome who was a ward of the state and who successfully challenged not only the terms and conditions of her guardianship, but also her right to make decisions for herself.

Elders in Colorado are part of a “protected class” of persons in our elder abuse statute.  Some of my colleagues take offense at the reference to age because they are close to that age (70) and still don’t want to think of themselves as “old” or in need of protection.   I suspect they don’t consider themselves “old” because they don’t have enough youngsters in close proximity. . . .

What does incapacity mean for a person once a probate court has determined the person incapacitated?

Incapacity determinations by probate courts generally strip a previously capacitated adult of nearly all of their civil rights.  In Colorado, wards (what a person who is named as Respondent in a guardianship petition is called after the court determines the person is incapacitated and in need of a guardian) can still exercise their right to vote.  So once a persons is stripped of those civil rights, a ward essentially ceases to exist in many ways or is legally dead.  This is one aspect of vulnerability.

If you find this patently offensive, please consider the historical common law rules of marriage and property which were “imported” into North America by the colonists.  Hey, didn’t we recently celebrate our independence on the Fourth of July a month ago?! These “coverture laws” basically reduced the legal status of an unmarried adult (otherwise capacitated) woman from an adult to the legal status of an infant once she was married.  These coverture laws pertained to a married woman’s legal rights to own property, to sign contracts, make a will and many other useful matters.  A married woman was otherwise legally incapacitated, but she could seek relief from a court of equity.  Connecticut was one of the first states to establish the property rights of married women.  Back in those early days, the courts of law were separate from the courts of equity, the latter were often referred to as chancery courts.  Those courts were merged with courts of law in many court systems but still exist as separate courts in states like Delaware.  In Colorado’s system of “combined courts” a court sitting in probate is both a court of law (employing the statutory probate code as well as case law) and a court of equity.  Equity is specifically referred to in our probate code, but the two concepts are still legally distinguished from each other because they are different sources of law and the remedies it affords parties.

A ward can regain his or her legal status of personhood – but it can be daunting.  In Colorado, there is a special form for that.   A psychologist I know recently contacted me about getting this form and providing a supporting letter for their client – here is the form from the state judicial website JDF 852.  If imposition of a guardianship over a ward is legal death, then termination of the guardianship based on a restoration (or re-evaluation) of capacity is akin to resurrection.  I won’t go into the gnarly details about the attorney’s ethical rules of representing wards seeking termination of their guardianships, but the Kohn article above is an excellent overview of how attorneys can overcome some of the challenges inherent in our ethical rules to assist those persons in getting their legal personhood or at least some of their rights restored.  Attorneys need to assist these wards to protect fundamental rights.

That’s all for now….

© Barbara E. Cashman 2017   www.DenverElderLaw.org