Denver Senior Law Day is Tomorrow!

Venetian Shop Window

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

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

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

That’s all for this post!

When the Decedent Was a Hoarder

Tightrope

What is hoarding? I like this simple definition from the Anxiety and Depression Association of America.

Hoarding is the persistent difficulty discarding or parting with possessions, regardless of their actual value. The behavior usually has deleterious effects—emotional, physical, social, financial, and even legal—for a hoarder and family members.

Hoarding is “officially” a disorder, meaning it was reclassified as such in the Diagnostic and Statistical Manual (DSM-5) in 2013.  Prior to its recent “promotion” to a disorder, it was considered an aspect of obsessive-compulsive disorder, so many folks who suffer from OCD (or OCPD) are also hoarders. Hoarding has also been linked to attention-deficit/hyperactivity disorder (ADHD) and depression. Sometimes hoarding may be associated with an eating disorder like pica (eating non-food materials), Prader-Willi syndrome (a genetic disorder), psychosis, or dementia.

Hoarding for elders can be indicative of depression and/or anxiety and for those elders who may have been “pack rats” in younger years, the compulsive habit can worsen in later life.  Here’s a link to a University of California at San Francisco study that looks at elders’ hoarding as a health concern.  That study concludes that hoarding in elders often seems to worsen and becomes more problematic, but for reasons that remain unclear.

How does hoarding impact one’s life? There seems to be, to a certain extent, an inverse relationship of stuff hoarded to quality of life. The more stuff clutters a home, the unhealthier and more dangerous can be the living conditions. Shame, fear of judgment, distrust of others being allowed in to the hoarder’s living space can contribute to the hoarder’s sense of isolation.

It seems straightforward that an elder who has a dwelling place crammed full of junk is much less likely to allow caregivers into the home or others who might able to otherwise assist an elder with managing the challenges of independent living.

What can be done to help a hoarder while they are still alive?  The answer to that depends on the type of hoarding behavior as the intervention must be tailored to it.  And yes, in case you’re wondering, there is a Hoarders Anonymous, but my antivirus software won’t let me visit their website. . ..

So, this post is about hoarding in the estate context – what does that mean?

It means that the job of identifying the decedent’s assets can be difficult, at best.  Finding relevant information can be extremely challenging or impossible due to the sheer volume of papers collected by the deceased hoarder.  Many years ago, I represented the personal representative of an estate of someone who was a hoarder.  The decedent had died in a skilled nursing facility, but inside her home remained dozens of filing cabinets as well as many boxes of papers.  When I informed the personal representative about some documentation I would need, she informed me that she was fairly certain that the papers I needed were kept in the home, but it would take several weeks to go through those storage places to try and locate them.

What if the deceased was an “organized” hoarder and kept only certain types of items?

Well, that might not be so bad, but I haven’t seen that one yet.  In my experience, there are few “selective” hoarders.  I think that has to do with the fine line between collecting and hoarding!

And if the deceased was an indiscriminate or disorganized hoarder? Well, I don’t think there’s a patron saint of the chronically disorganized who happen to be hoarders – but maybe there should be.  You might recall that Dante’s Inferno, in the fourth circle (of hell) to be precise, identifies the twin opposite behaviors of those hoarders and wasters (or prodigals).  That circle is all about greed as the Fourth Circle of Hell is guarded by Pluto, the Greco-Roman god of wealth:

Here, too, I saw a nation of lost souls,
far more than were above: they strained their chests
against enormous weights, and with mad howls
rolled them at one another. Then in haste
they rolled them back, one party shouting out:
“Why do you hoard?” and the other: “Why do you waste?”

Canto VII, lines 25–30, Ciardi translation.

So, it is apparent that the proliferation of stuff and its unceasing accumulation has obvious negative effects on one’s relationships with others and the outside world in general, but. . .

What can we do about detecting the causes of hoarding and helping a hoarder?

It’s a fine line indeed between “collecting” and “hoarding.”  That Depression-era mindset of scarcity, coupled with distrust (anxiety) about the future – the origin of one’s next meal, etc., can contribute mightily to a worsening of an already latent propensity to collect.  Here’s an article about that topic.

And if you think there isn’t an opposite extreme that people can engage in (see Dante’s reference to the “wasters” above), here’s an article about compulsive decluttering.  The root of the problem may be the link between either type of activity and its origin with obsessive thoughts.

In short, there are ways to help a hoarder – and in particular to avoid making the person (not their affliction) a spectacle of ridicule.  If this sounds like self-interest for the family members of a hoarder, as in those persons who will be responsible for going through the hoarder’s possessions – well it certainly is in their interest to help!

© 2017 Barbara Cashman  www.DenverElderLaw.org

Capacity and Incapacity Considered

Swirling

As a growing portion of our population continues to age, we are more frequently forced to confront the question of capacity.

What is capacity and why should we care? 

As we continue to enjoy unprecedented longevity, we face greater likelihood of incapacity in our future.  Sometimes this incapacity is short-lived or temporary but for many of us, particularly for elders, it can become an issue that plays out over time and can result in a permanent incapacity.  There are very few “bright lines” to define what is capacity and what constitutes incapacity generally, but there are many useful contextual and functional definitions of capacity to assist us in this effort.

I believe that the more we can learn about how these capacities and incapacities present themselves in the context of our daily lives, the better equipped we can become to help detect and prevent elder exploitation and abuse.  This post is about three particular types of capacity along the capacity continuum.  I use the term “continuum” because it is easy for many of us to think (or rather, wish to believe) that this capacity question is relatively straightforward.  It is not!  Like so many other aspects of human doing and human being, it can get quite complicated.

I’ll look at three familiar types of capacity here to put the question in context.

  1. Capacity to Make Medical Decisions

These medical Informed consent issues can include a range of capacities relating to what a patient is being asked to do – there is a range from the “mundane” question of whether the patient give informed consent to medical treatment or to decline such treatment; if the patient wishes to name a health care agent to make decisions for them in the event of their incapacity; and what about the capacity to make end-of-life wishes known with a living will?  Here the functional elements of these capacities can be broken down into four basic parts:

(a) To express a choice: The standard of expressing a choice refers to patients who are seen to lack capacity because they cannot communicate a treatment choice, or vacillate to such an extent in their choice that it is seen to reflect a decisional impairment;

(b) To exhibit understanding: The standard of understanding refers to the ability to comprehend diagnostic and treatment related information and has been recognized in many states as fundamental to capacity.

(c) To appreciate the implications of a particular choice or course of treatment. This aspect capacity has been described as the ability to relate treatment information to one’s personal situation. The standard of appreciation can reflect the patient’s ability to anticipate or infer the possible benefits of treatment, as well as to accept or believe a diagnosis.

(d) To rationally process information. This reasoning aspect of capacity involves the ability to recognize and offer rational explanations or to process information in a logically or rationally consistent manner.

Each of these aspects of medical capacity are interwoven into the ongoing conversation of one’s medical treatment and are of course highly subjective in many ways due to the individual patient’s own preferences or style of communication.

  1. Capacity to Drive an Automobile

This one is big for us Americans who don’t have so many public transportation options! The ability to drive is often one of the last things to go because it can in some ways restrict an elder’s ability to go places on their own schedule.  The AARP has an online defensive driving course and AAA has resources for getting evaluations of one’s driving skills as well as clinical assessments, but the “official” Colorado program is the Drive Smart program – click here for more information about it.  Under Colorado law, doctors (and optometrists) can provide medical opinions to the DMV concerning a patient’s medical condition and the patient’s physical or mental ability to safely operate a vehicle.  For more information about when an examination is required, here’s a link to a power point about it from the Colorado Coalition for Elder Rights and Abuse Prevention.

  1. Capacity to Make a Will

As an estate planning and elder law attorney, I meet with prospective clients and must make capacity determinations as a matter of course.  The ABA has a handy guide for lawyers and psychologists concerning assessment of a person’s capacity.  It is available here.  In order for an attorney to represent a client, an attorney must first establish that the potential client has the capacity to hire the attorney as well as direct the activities of the attorney.  We have a special rule of professional conduct which applies to clients with diminished capacity.

Historically, this testamentary capacity is at the lowest level along the capacity continuum.  In Colorado, the law is a bit less clear since the Breeden case, but  many states still recognize testamentary capacity as a separate and special category.  The Colorado probate code allows for a protected person (a person under a conservatorship) to make a will through the conservator. See Colo. Rev. Stat. §15-14-411.

One of the aspects of this low level of capacity required to exercise our testamentary freedom is that a will can be subject to challenge under some circumstances.  The person’s ability to make a will, or their testamentary capacity, can be the subject of a lawsuit known as a will contest.  Challenges to testamentary capacity often revolve around “undue influence,” in which a person challenges the will (and sometimes nontestamentary transfers as in the recent Colorado Appeals Court decision in Estate of Owens v. Dominguez).  Undue influence depends on many situational factors but generally can require a showing by the one challenging the will that: a person standing to benefit from the new will was in a confidential relationship with the testator (person making the will); that the person received a substantial benefit; from the testator who was suffering some mental, social or psychological impairment which compromised the testator’s mental capacity or independent thinking.

To conclude this post, if we think of capacity not just as a concept but as grounded in a particular context – as illustrated by the examination of capacity to perform a particular task, we can go much further in our examination of how much capacity is required and whether the requisite capacity is lacking.  From this contextual basis, we can then take a look at what type of assistance to “facilitate capacity” is appropriate and what kind of “assistance” is actually interference indicative of improper influence, exploitation or abuse.  I’ll write more on this topic this summer.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

 

Honoring Elder Mothers this Mother’s Day

 

denver elder law

Beautiful Hearts

There are many versions of the history of Mother’s Day and I found an excellent compilation at the National Women’s History Project.  As we all know, Mother’s Day will be celebrated (in this country) this Sunday, May 14, 2017.  There are many ways to honor our mothers – even if our mothers are no longer living.  In this post I’m tying together two seemingly disparate threads: how to honor our elder mothers on Mother’s Day by considering the plight of a large number of impoverished elder mothers if the American Health Care Act becomes the law of the land.

Last week I posted about long term care insurance, why it is helpful and . . .  how we shouldn’t be complacent about the availability of Medicaid services for poor and sick elders who lack the resources or savings to self-insure.  Little did I know that just hours after that post, I would get news of the U.S. House approving a version of the American Health Care Act which would, if it becomes law, gut Medicaid for millions of people, including elders!

What’s at stake?

Medicaid expansion under the ACA will be rolled back under the AHCA.  Here are some details about Medicaid expansion from a 3/26/17 Forbes article: From 2014 through 2016, the ACA’s Medicaid expansion population is funded 100% with federal dollars. Beginning this year, states gradually have to pick up some costs, but the federal government still picks up 90% or more of Medicaid expansion through 2020. It was a better deal than before the ACA, when Medicaid programs were funded via a much less generous split between state and federal tax dollars.  That article points out that the Medicaid expansion has been a boon to health insurance company giants like Aetna, Anthem, Centene, Humana and UnitedHealth Group, who have enrolled millions of new members under the expansion.

As this article from the Kaiser Family Foundation illustrates, the hardest hit under the AHCA appear to be nonelderly disabled adults, folks with conditions or diseases like cerebral palsy, multiple sclerosis, developmental disabilities, people affected by brain injuries and so on.  But the AHCA would adversely impact elders as well, by its move to a “block grant” to states (a fixed $$ amount for each beneficiary) as well as the elimination of the ACA’s protections for people with pre-existing conditions.   Of note is the “no” vote of U.S. Rep. Mike Coffman (R – CO) on the grounds of the AHCA’s failure to protect the relatively small number of persons with preexisting conditions, who would be left without any coverage.  You can read the AARP’s post about this here.

It is unlikely that elders on Medicaid will be heard from in large numbers about their loss of insurance coverage and benefits, but elders who will see their insurance premiums increase may be more vocal, and I think it’s a safe bet to count on the insurance companies (who benefitted from Medicaid expansion) to raise a hue and cry when the U.S. Senate examines the proposed legislation.  A Forbes article from 5/7/17 notes that “Of the 75.2 million Americans covered by Medicaid, 54.7 million are enrolled in private plans, a report from consulting firm PwC indicates. Much of the recent growth has come from Medicaid expansion, benefitting not only insurance companies but hospitals, doctors and other medical care providers.”

Without Medicaid funding from the federal government, which was the impetus for Medicaid expansion under the ACA,  states will be left on their own, with limited funds from federal “block grants” to cover a fraction of those persons who were enrolled and covered under Medicaid, or a fraction of those persons’ health care.  The Congressional Budget Office published its analysis of the AHCA on 3/13/17 and the summary states that the CBO and the JCT (Joint Committee on Taxation) “estimate that enacting the American Health Care Act would reduce federal deficits by $337 billion over the coming decade and increase the number of people who are uninsured by 24 million in 2026 relative to current law.”

For more information about the AHCA’s impact in Colorado, you can read a Denver Post article here from several weeks back.  The American Medical Association, which opposed the AHCA prior to its House approval, issued this statement on May 4, 2017, criticizing the bill for its results which would cause millions of Americans to lost access to quality, affordable healthcare and un-insuring those with pre-existing conditions.  Many of those folks with pre-existing conditions are elders.

If you aren’t tired of seeing all these links and want to read more, here’s a link to a New York Times article about who would be the winners and the losers under the AHCA.

Please consider honoring mothers by educating yourself about the AHCA and sharing your thoughts and opinions with others, perhaps even your elected officials.  It’s time to make the conversation about something other than money…

© Barbara E. Cashman 2017   www.DenverElderLaw.org

 

 

Do You Need Long Term Care Insurance?

Just Curious!

Like many other questions I pose to clients, who ask me the question first – my answer often begins with . . . “it depends.”  This particular question is often posed by clients doing pre-retirement planning and this may be the best time to be considering one’s options about how best to plan for retirement.  I would consider how one answers this question posed in the title to be part of how we look at our elderhood and its challenges and uncertainties, about which I have recently blogged.  So I will start with some basic questions.

How long will you live?

Sure, I bought a crystal ball a couple years back from a local shop, Grandpa’s Attic in Littleton, but I haven’t yet found a reputable online “gazing” course to hone my crystal ball reading skills. . . . ! Let me know if you have any leads on that.

Will you have health conditions that will make it difficult for you to live independently?

Some of us already have chronic health issues by the time we hit our 50’s or 60’s, so this might be a “heads up” that things could get progressively more difficult.  But many of us just want to simply pretend that a downturn in our health status isn’t likely and so somehow it wouldn’t be possible that we will outlive our financial resources.

Will you have enough money saved to cover for the needed additional care?

Many elders I know want to leave something to their kids after they’re gone.  How does the need to pay for care services, which one typically had been paying for previously in one form or another (if the elder had not been a longtime recipient of government benefits) adversely impact the person’s ability to leave a legacy to family members? Well, simply put, it can pit your own well-being and financial wherewithal against your child’s desire to inherit from you.  I know, it sounds crass and the kind of thing that would never happen to you . . . but the fact is that we elder law attorneys see a fair amount of this.  Why provide the temptation for your kids, to pit your ability to pay for your care against their ability to inherit funds from you?

If you don’t have sufficient funds to pay, who will pay for your care?

Many people assume that if they can’t pay their own way, perhaps family members will care for them.  In fact, our health care system (and I am reminded of Walter Cronkite’s quote “America’s health care system is neither healthy, caring, nor a system”) relies heavily on family caregivers to provide free services to help manage their loved one’s care, improve the patient’s quality of life, as well as reduce costs to the health care system.  Many folks simply want to assume that they will be able to stay in their home, regardless of their physical or medical condition.  This behavior has a name: avoidance or denial!

Will there be sufficient levels of public assistance available in the even you run out of money?

If you think that there will be plenty of money from your fellow taxpayers to fund your care, you might want to reconsider! The Medicaid expansion in Colorado under the Affordable Care Act made many more funds and programs available to impoverished elders who could not afford long term care services, but the continuation of these funds and services is not a sure thing!  The failed American Health Care Act would have gutted those funds available for elders.  Read more here from Justice in Aging’s blog.

Do you already assume that long term care insurance is going to be too expensive?

I met a financial advisor last year who was fairly new to the business, she told me that only “wealthy people” get LTC insurance. I explained to her in my experience that was not the case!  There are people who make getting a LTC policy a financial priority, and they aren’t always those folks who can otherwise afford easily to self-insure – meaning the wealthy who can afford a Cadillac LTC policy or who have enough funds to privately pay for care without making a dent in their kids’ inheritance.

The fact is, there are more ways to fund the purchase of an LTC policy than you can shake a stick at!  Here’s an article by Wade Pfau from Forbes magazine that has several helpful links to the smorgasbord of options currently available.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

 

Caregiving is Not for Sissies!

Sideways Sky

 

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

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

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

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

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

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

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

© 2017 Barbara Cashman  www.DenverElderLaw.org

 

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

Safety in Numbers

My posts about reporting elder abuse remain my most popular among readers and since it’s been a while since I’ve written on the topic, I thought it was time! I get regular calls from people about this question, often from adult children who are concerned about what is going on with a parent.  Plus, I listened to a webinar put on by the ABA last week about recognizing and preventing these scams.  Today I’m focusing on federal programs and resources.  Here’s a link to the US Department of Justice (DOJ) Elder Justice Initiative to get started.

Among the presenters at the webinar were a representative from the Consumer Financial Protection Bureau (CFPB) and a prosecutor from the US DOJ Civil Division’s Consumer Protection Branch.  I mention these two federal resources because most of us tend to focus only on local or state law enforcement when it comes to reporting suspected financial abuse or exploitation of an elders.  One other recent detail popped up on a listserve recently, reporting a scam concerning what was represented to be an “escrow company” to the victim and who told her they were assisting in the sale of her time share in Mexico.  Apparently tens of thousands of dollars were cumulatively wired to the scammers, for the purported purpose of covering taxes and transaction fees.  I searched online and found several posts about these types of scams that sound like perfectly legitimate businesses.  One of these scammers was using the name of a legitimate Colorado business.  Couple this with a scammer’s ability to “spoof” a phone number on the recipient’s caller ID, and it’s a pretty dangerously convincing mix!

The scammers are as familiar as the rest of us with the adage “if it’s too good to be true it probably is,” but some of these scams persist, coming in many new and different forms.  The more troubling scam scenario however is the much more legitimate sounding scam, which doesn’t purport to be a “sure thing,” but instead rely on a common human tendency toward “in for a penny, in for a pound” behavior, or what economists refer to as sunk cost fallacy and psychologists call commitment bias.

Many of these scenarios involve mail fraud and wire transfers.  Read a recent press release from the DOJ about actions concerning mail schemes targeting by foreign nationals.  Last March, the CFPB issued an advisory and a report with recommendations for best practices for banks and credit unions on “how to prevent, recognize, report, and respond to financial exploitation of older Americans. Financial exploitation, the illegal or improper use of a person’s funds, property or assets, is the most common form of elder abuse and costs seniors billions of dollars per year.”  The Advisory, which contains recommendations concerning the development of internal controls for the protection against and reporting of exploitation, training of staff to prevent , detect and respond to elder financial exploitation and using appropriate technology for the detection and reporting to local, state and federal authorities, is available here.  The executive summary of the CFPB’s report begins with an important message:

Elder financial exploitation has been called the crime of the 21st century and deploying effective interventions has never been more important. Older people are attractive targets because they often have assets and regular income. These consumers may be especially vulnerable due isolation, cognitive decline, physical disability, health problems, or bereavement. Elder financial exploitation robs victims of their resources, dignity and quality of life—and they may never recover from it.

You can read more of the report here.

There are many ways that scammers defraud elders and some of these include Medicare, Medicaid and health insurance fraud (which is akin to a form of identity theft), IRS and tax scams, mail fraud and internet scams involving “sweethearts” and online dating, sweepstakes and lottery “winnings” and tech support scam.  The Justice Department also has a helpful roadmap identifying what type of scam and which federal agency to which it can be reported.

One valuable thing for people to consider in reporting an incident of suspected elder financial abuse and exploitation is this: a single victim may not have suffered a devastatingly huge loss, relative to their life savings perhaps, and it may even have been a relatively small loss, but if it is multiplied among a range of victims nationwide, what the scammers take can amount to millions of dollars.  This is why reporting remains critically important.  We are charting new ground here as many facts and figures about the incidence and forms of elder financial abuse and exploitation remain unknown due to underreporting.

That’s all for now.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Solstice and Death Denial

Night Lights

Solstice is an astronomical event, a phenomenon occurring biannually which marks two extremes: the shortest day of the year (today) and the longest day of the year. Its meaning derives from the Latin: sol for sun of course and stice meaning standing still in that the sun stops before it reverses its direction.  All cultures in the world have noted or somehow marked the occurrence of the solstice, but each has historically come away with different forms of its observance.

I’m writing about solstice today for a couple reasons I suppose. One is its reminder of constant change in our natural world.  There is always some movement in this life – a lengthening and a shortening, a moving toward and a moving away from, but it often seems that many of us would rather insist on holding onto something a bit more concrete, that we can touch, hold or identify as familiar.  Most of us do not welcome change with open arms because it represent the unknown, about which we can never be too certain.

In the coming months I will be writing more about a favorite theme of mine – the denial of death.  This denial of death which we endorse and glorify in our culture, often unwittingly, is essentially a denial of life.  We can’t have one without the other.  So how do we manage this uncertainty which often presents as anxiety – either on a personal or collective level?  Many of us will simply choose to react, to prepare for what we think is inevitable in our minds – as if we can predict the future.  Of course many of us can predict the future in that the narrowness of our ability to see the world in front of us is such that our field of vision is limited to only those things which we want to see.

This closing up, this denial of what we don’t want to accept, what we are not willing to see and what we have told ourselves we would never accept is in many ways like a solstice.  Our world shrinks down to what is manageable under the circumstances, the mystery and uncertainty of what we can’t control is simply too much for many of us.  But what if the unknown, the uncertainty is our best teacher?  How might we respond to it? I think of a favorite quote of David Steindl-Rast:

The root of joy is gratefulness…It is not joy that makes us grateful;

it is gratitude that makes us joyful.

You can watch Brother David’s Ted Talk here.

I have written about gratitude and gratefulness a number of times.  In our culture, we tend to be focused almost exclusively on the personal losses faced in elderhood: the loss of autonomy as a result of physical, mental or emotional difficulties or challenges; the loss of purpose in that many of us no longer feel we are contributing members of a community; and the loss of engagement in life. I believe that successful elderhood is possible and desirable, amidst all the difficulties, pessimism and “conventional wisdom” (or insanity, depending on your point of view) – perhaps even as a result of all these challenges.  This is what I will be writing more about in 2017.  I am grateful for this opportunity to write about this, for each of you that reads a post of mine and particularly to those who comment or send me an email about a post.  Happy solstice day today and may your days be lengthened in joy and deepened in purpose.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

Elder Abuse and the Mother-Child Relationship

Tree Mother

Tree Mother

 

Today I’m exploring the question of whether exploitation or neglect of an elder parent by an adult child presents differently due to the gender of the parent.  I will begin with a question:  is the elder parent – adult child relationship different between mothers and fathers?  What about when it “goes wrong” and results in neglect, exploitation or financial, physical or verbal/emotional abuse? I can say from my experience as an elder law attorney that elder mothers appear to be taken advantage of in ways that are often different from those means involving elder fathers.

This post crosses a lot of territory – spanning the abuse of a power of attorney by an adult child serving as agent, elder abuse resulting from neglect of an incapacitated elder, to the evolution of family conflict across many years of relationships.  Abuse in these contexts can take many varied forms and because it is part of a family relationship, a most intimate one of mother and child – it can express itself in subtle and slippery ways.

I have noticed in the estate planning portion of my work that fathers tend to have a much easier time with leaving disproportionate shares of an estate among adult children and also seem to be much more resolute about disinheriting a child.  One of the reasons might be that mothers tend to have a higher involvement and investment in the parent-child relationship, even as it evolves over the lifetime of the parent and the adult child(ren).  In my experience, mothers are more likely to hold out hope that a wayward child (whom a father might easily disinherit) will return to a more productive life path or that the filial relationship will otherwise be redeemed.

Some people might think that threatening one’s mother with putting her in a nursing home might amount to elder abuse.  I’m not saying that it wouldn’t constitute emotional abuse in some circumstances, which could be used by an adult child to further a strategy of dominating and controlling a parent for their own personal gain.  This threat could also stem from an adult child caregiver who is overstressed from his or her responsibilities to care for a (sometimes uncooperative or difficult) parent.  Sometimes what ends up as exploitation starts out as a willingness to assist the parent but perhaps due to the nature of the parent-child relationship or as a result of the buildup of resentment on the part of the child, the caregiving goes astray.  But what I’m talking about in this post goes a bit further.

As we all know, parents remain parents of children, with all of the emotional responsibility that entails – regardless of the age of the child.  The fact is that many elders are better off financially (or at least more secure) than their children and they may want to help their children financially, but there is a razor-thin edge between healthy nurturing and being subjected to emotional manipulation.  Here’s a link to an AARP article from 2013 which has some sad statistics.  Part of the problem is a sense of entitlement from the adult child or children.  Some of us in my field of practice use the term “impatient heir” to describe these adult children who seem to be biding their time until the parent dies and they can “collect.”

I don’t want to sound like a broken record here, but I have noted a number of times in previous posts that there is not very much current research documenting the prevalence of elder abuse.  There is some recent work on the sometimes toxic nature of filial relationships and elder abuse.  What is “taking care of” someone and what does it properly entail? Here’s a link to an abstract about the special significance of the adult daughter-elder mother relationship and the use of aggression. Underreporting is an obvious problem – particularly when the reason for underreporting is shame or embarrassment.  When an elder mother (or father) reaches out to me as a resource person to assist in remedying a situation, one of the first things I say involves the recognition of how brave the mother Is to contact someone outside the family to report on what is generally a highly embarrassing and sometimes shameful situation.  One elder mother I worked with recounted to me how her daughter told her that she was mean to her when she was a teenager and so the daughter’s control over her mother’s finances was part of a “payback.”  Another mother extended her home temporarily to a child from whom she had been estranged for many years, only to learn he had no intention of ever leaving.  The victim-victimizer narrative in these situations can get rather convoluted!

Dr. Judith Smith is a researcher in this field who is engaged in studying how family conflict plays out in the later years of the parent and she has focused on the parent’s feelings of ambivalence (e.g., a mother wanting to help her child versus the resentment of feeling the need to assist).  The National Adult Protective Services Association (NAPSA) recently added Dr. Smith’s research brief entitled “Elder Abuse, Mother Abuse and Parenting in later Life.  Here is a link to the power point training offered by Judith Smith, LCSW, PhD on Vimeo on which NAPSA based their report.

The ambivalence scale to which Dr. Smith’s training refers is described in more detail here by Karl Pillemer, in the article entitled “Ambivalence Toward Adult Children: Differences Between Mothers and Fathers,” and you can read the article on the National Institutes of Health website here.

As we continue down the road of longevity, it might help us to think about our long term familial relationships and how they are challenged or compromised as a result of a parent’s longevity.  When this longevity involves physical frailty, emotional dependence, cognitive impairment or other factors diminishing an elder parent’s autonomy – what is an appropriate response?  This is of course an ongoing conversation and I will continue on this topic in the future.

© 2016 Barbara Cashman  www.DenverElderLaw.org

November is National Family Caregivers’ Month

Clouds in Water

Clouds in Water

In the post, I will look at some of the challenges of caregiving for a loved one with dementia and provide some resources for this growing population.  November is also National Alzheimer’s Disease Awareness Month.  Here’s a link to the Alzheimer’s Association’s caregiver center, which has helpful information and resources.

As we approach the holiday season, it struck me that it would be a good time to revisit this topic.  The holiday season and its focus on family activities and get-togethers, can cause additional strain to family relationships made stressful due to an elder parent or loved one’s dementia.

The first important detail is that people with dementia are usually cared for by family members or friends and the most of them (about 80%) are receiving care in their homes.  Here are some numbers from the Centers for Disease Control:

Each year, 15 million Americans provide more than 17 billion hours of unpaid care for family and friends with Alzheimer’s disease and related dementias. More than six in ten (62%) caregivers were women, almost one in four (23%) were 65 years of age and older, and three in ten (30%) had children under 18 years old living with them.

Caregivers of those persons with dementia usually provide such care for a longer period than the caregivers for other diseases or conditions, and the CDC statistics on this demonstrate that

More than four in ten (43%) caregivers of people with Alzheimer’s and related dementias provide care for one to four years, and more than three in ten (32%) are caregivers for five years or more. For other types of chronic conditions that require care, more than three in ten (33%) caregivers provide care for one to four years, and almost three in ten (28%) are caregivers for five years or more.  

Caregiver stress, caregiver burnout, and for premature death for an elder spouse of a person a suffering from dementia are all very real risks here.  The demands of caregiving for a loved one with dementia subject the caregiver to greater risks of anxiety, depression and overall poorer quality of life.  So, that is the bad news. . . so what kind of resources are available to support these caregivers?

There are a range of options to consider of course, as every person or family’s situation is unique.  Perhaps all that is really need is a bit of respite care.  Sometimes just the prospect of respite care being available can make a huge difference in the emotional health of a family caregiver.  Here is a link to the Colorado Respite Coalition, which has a variety of resources available.

The vast majority of caregiving in this country is done by family members free of charge.  For many people however, volunteering these services is simply not a financial option.  Here’s a link www.disability.gov, the federal government’s website that has links, resources and helpful information for family caregivers as well as information about how family caregivers can get paid to perform such services.    And here is a link to the eldercare locator, a public service of the U.S. administration of Aging.  The Medicare.gov site also has some information that can be helpful to caregivers about what Medicare provides.  The AARP site lists these five skills that help persons care for the elders they love: observation (paying attention to changes); organization; communication; questioning and tenacity.

Several of the helpful sites above advise elders to put important legal documents in place while the elder retains capacity to do so.  When will you know whether a power of attorney is needed? Chances are good that it will be too late for an elder with dementia to execute a power of attorney once it is determined that such a document is needed!  So, I will close this post with a reminder concerning a couple bare minimum documents which are required to ease the burden of family caregiving: a health care power of attorney (with a conversation about end of life wishes with the named agent, successor agent and perhaps other family members) and a general durable (financial) power of attorney.

Both of these documents are planning documents that are designed to prevent the need for later protective proceedings in probate court  – for guardianship and/or conservatorship – in the event of an elder’s inability to manage their money or if they become incapacitated due to advancing dementia.  The American Bar Association’s “tool kit” for advance health care planning has good questions to consider in how to select your agent and list your priorities.  Remember, one of the best ways for elders to NOT be a burden on their loved ones is to plan ahead and the value of that advance legal and medical planning should not be minimized.

© Barbara E. Cashman 2016   www.DenverElderLaw.org