Dementia and the Right to Vote

The Angels of Voting?

The Angels of Voting?

As our national election day nears, I thought it would be worthwhile to revisit the topic of voting rights and elders with dementia.  What kind of folks am I describing with such a broad sweep? Here I’m talking about the people with advanced dementia, some of whom reside in nursing homes or other institutionalized settings who have a court-appointed guardian acting for them as well as those elders who are living in the community and may have a diagnosis of dementia or simply suffer from cognitive deficits or decline.

So – you’re wondering whether I will reveal that folks suffering from advanced dementia who reside in say, a Colorado “memory care” facility, still retain the right to vote? Why yes, that is one of my points!  Voting law is a combination of federal and state laws.  As you may recall from studying American history, some states in the late 19th century passed “Jim Crow” laws that (among other things) imposed a poll tax, literacy test or other legal hurdle to black voters residing in those states.  It took a long time to remedy the situation, but the Voting Rights Act was signed into law by President Johnson in 1965.  Why do I mention this important legislation of the civil rights movement? Because it, along with federal case law, help inform the backdrop for the federal law of the right to vote.  But while the Voting Rights Act and federal law prohibit states from denying any citizen the right to vote on the grounds of race or gender, the Act specifically allows states to enact laws to deny the right to vote to people for two reasons: criminal conviction or mental incapacity [See 42 U.S.C. § 1973gg-6(a)(3)(B)].

It is important to note that the right to vote has been an area of struggle for many people in the disabled community.  Elder law’s capacity and incapacity analysis and some of its underlying policy often make reference to law concerning the disabled.  Voting rights of elders with dementia is one of those areas of intersection with disability law.

For resident citizens who are disabled, incapacitated (those persons for whom a court has appointed a guardian) or persons with dementia, Colorado is one of a relatively small number of states (eight) which has neither mention of mental incapacity (some terms used in other states include idiocy, insanity, non compos mentis, etc.) in our Constitution as a bar to voting nor any state statutory law prohibiting the (mentally) incapacitated from exercising their right to vote.  You can read more about assessing the capacity to vote here.

Keep in mind that there is a Colorado statute which relates to individuals confined to a mental health institution.  That statute specifies that individuals confined in a mental illness institution “shall not lose the right to vote because of the confinement.” C.R.S. 1-2-103. So, as long as that person is otherwise qualified to vote, they will be given a ballot. Additionally, Colorado law requires mental health institutions to help assist their confined residents to register to vote and obtain mail ballots.

The difficulties for elders with dementia who are Colorado voters will boil down to more practical matters concerning, for example, how to get assistance to complete a mail-in ballot.  That is a more challenging proposition as the federal law Help America Vote Act of 2002 (Pub.L. 107–252)  and Colorado laws require that voters with disabilities be able to cast their vote privately and without assistance. Each Colorado county has purchased accessible voting machines to be used in every polling place which are designed to provide the opportunity for voters with a wide range of disabilities to vote privately and independently.  These laws and other applicable law designed to prevent improper influence on voting may effectively render an incapacitated person’s right to vote meaningless because the person will not be able to exercise the right.

Perhaps this will be a new frontier of elder law: requiring cognitively accessible ballots and other election procedures.  Making these a priority could potentially provide a tangible benefit for many other voters.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

 

Colorado End of Life Options – A Follow-Up

denver elder law

Spring Orchid at DBG

 

I’m writing this as a follow-up to my last post, which elicited a heartfelt comment from a subscriber and a fruitful discussion on LinkedIn. . .

Voluntary euthanasia is when death is chosen by a person, when they are killed with their own expressed consent.  These types of requests and the consent needed for such must be clear.  To review a bit – passive euthanasia is when a person makes an advance directive in the form of a living will in which the person indicates the level of medical intervention – or lack thereof – in the event they are in an end-of-life scenario.  In the Colorado Medical Treatment Decision Act, Colo. Rev. Stat. 15-18-101 et seq., we distinguish between persistent vegetative state and terminal condition as the triggering circumstances for the application of the living will.  Persons dying according to the terms of their living will may direct in advance the withholding or withdrawal of certain medical interventions which would tend to prolong or sustain life. The Living Will is in essence a statement of wishes and the persons involved in providing for assisting with another’s grave medical condition must be aware of its existence and its contents.  Unfortunately, what sometimes happens is that an elder goes to a senior center or some other place to fill out a living will form, but the elder neglects to inform their family members they have done so.  No one knows of its existence or contents and so it is of no value.  This is why having “the conversation” – especially with one’s health care agent – is so valuable!

So, let’s get on with the discussion at hand.  Many of us have experience with active euthanasia in the form of “putting down” a beloved pet.  When my dear old dog Pepper was nearly paralyzed, we made the decision to euthanize her after considering the alternatives.  When two of my sons and I were with Pepper at the vet’s office (sitting on the floor with her, stroking her and telling her how much we loved her), she was injected with the drugs that would end her life.  The vet commented to me – “I wish we could do this for people.”

This is the paradox of passive and active euthanasia – that active euthanasia is more humane in that it hastens the death to alleviate the suffering, while passive euthanasia requires the withholding of the means of sustaining life – which means a person can go quickly if they are dependent on breathing support or. . . .  they will slip away slowly as they starve to death.

It occurs to me that many of us don’t think of the living will as a statement as to the form of euthanasia preference – or if there is no preference for such.  Is the living will a document that tells our loved ones to “let us go” or is it a document that gives the patient’s preference as a statement of self-determination, to be free from the unwanted interference of others?  Can it be both?

There are of course a wide variety of living will forms available.  While the documents are acceptable forms of stated preferences regarding euthanasia, different religious communities have their own preferred documents in compliance with their laws or traditions.  What is the distinction between letting someone die by not intervening and allowing a person to die by their own choice with the assistance of a doctor?  Is there really a bright line between the two?

Getting back to the “letting go” versus “self-determination” purposes of the living will, how do these play out in the context of active euthanasia or physician assisted death (as in the Colorado End-of-Life Options initiative)?  These tensions are even more pronounced in this context.  Where is the distinction between one’s not wanting to be a burden on loved ones and the subtle coercion that a gravely ill person may feel to “get on with” dying so that their loved ones can be liberated from the burdens of caring for the sick person?  I certainly am not suggesting answers.  What I am concerned about is that people seem to look for answers without regard to the question and what it entails or requires.

An exclusive focus on the self-determination rights of gravely ill people to be statutorily allowed to take their own lives – with the assistance of medical doctors – skews the discussion.  I liked Jennifer Ballentine’s article entitled “Law & Sausage: Physician Assisted Death and the Solution to Suffering.”  You can read it here.

The attraction is clear – to focus on the individual right to extend medical self-determination to include physician assisted death is a very American pastime!  We have a long tradition of championing and enshrining individual rights.  But in the context of active voluntary euthanasia, or end of life options, such exclusive focus myopically steers that discussion away from the critical context of the exercise of such a right [author’s disclaimer: I wear corrective lenses for correction of nearsightedness].  This right would certainly not exist in a vacuum.

I don’t think it is too much to consider a look at the bigger picture here and to identify in advance of our ballot choices this November the many unintended consequences which would flow from our choice.

© 2016 Barbara Cashman  www.DenverElderLaw.org

Guardianship and Self-Determination

View from Rocca Maggiore

View from Rocca Maggiore

 

In this post I’m examining the concept of self-determination in the post-adjudication context where a probate court has determined in a protective proceeding known as a guardianship (the concept also applies to conservatorship proceedings) that a protected person, now referred to as a “ward” is incapacitated and a guardian is appointed for that person.  In the guardianship context, after a person’s civil rights are essentially stripped away (but leaving intact the inalienable right to vote) in a court ruling, it might seem that a discussion of the self-determination rights of a ward would be a bit late.  This is most definitely not the case.

While the rights of a guardian over their ward are typically plenary and unlimited, this does not mean that a guardian can simply ride roughshod over the ward’s circumstances, personal preferences, desires and stated wishes.  There are important legal principles to consider in this context.  The Latin term “parens patriae” is the fundamental basis for guardianship law, the basis for a court to curtail an individual’s civil rights and name another to act on the person’s behalf.

Self-determination also factors into self-determination theory, which offers an explanation for human motivation in psychology.  This theory explains motivation in two different forms: autonomous or controlled.  This is relatively well-studied in the context of employment and employee motivation, but I couldn’t’ find many works on this theory in the elder protective proceedings setting.  Why wouldn’t it be as straightforward as the “four S’s” that motivate us as described in this Forbes article that we want to feel: successful, socially valued, smart and structured.  I realize this is a stretch when I am talking about someone with advanced dementia for example, but I think that many individuals who have trouble thinking could benefit from this approach to honor the autonomy such that it is.  Perhaps if we could think a bit more practically about how to apply the upper end of Maslow’s hierarchy: esteem, love and belonging. . .

Self-determination has a longer history in the disabilities rights legal context, and elder law and protective proceedings share many of the same principles.  Probably the most well-known is the doctrine of least restrictive alternative.  That term which borrows from the more broadly known “least restrictive environment” which is a common thread of much of the federal law of special education and relating to rights of the disabled.

So back to the self-determination of a ward.  What we are looking at is self-determination in a highly personalized relationship – that between guardian and ward.  The analogies offered above, from psychology and in the motivation context do offer some food for thought here, but I think the fiduciary relationship is still the most applicable baseline.  This means a subjective standard of looking at motivation and conflict in the guardian-ward relationship and how it plays out in the larger implications of the ward’s ongoing right to self-determination.  I think the incapacitated ward, like people with dementia in general, have much to teach those of us who are not afflicted with such trouble with thinking and managing our behavior.

After appointment, the guardian is accountable – to the ward, to interested persons (usually other family members) as well as to the court.  Under Colorado law, the guardian is a fiduciary and is held to a heightened standard of care.  The Colorado Bar Association has a couple helpful brochures available for guardians and for conservators.  It explains the fiduciary duties of a guardian to include the following: a fiduciary duty to the ward, meaning that you must always act in the best interest of and with undivided loyalty to the ward; make efforts to include the ward in all decisions and encourage self-sufficiency; avoid transactions that cause a conflict of interest; and make all decisions with care and prudence.   Acting in the best interests of the ward means also that a guardian is expected to consider the ward’s known and reasonable desires and personal values when making decisions on behalf of the ward, and must otherwise become and/or remain personally acquainted with the ward.

I think what the fiduciary duty covers generally here is an instruction to honor the ward’s dignity and rights (such that they are) to self-determination – to allow the ward a portion in exercising autonomy to an appropriate extent.  Here I bristle at the thought of our current obsession with the person’s safety, as if safety were the only thing that mattered in the care (or warehousing) of elders with dementia!  Safety is without doubt important, but it must be considered in context of quality of life and a person’s dignity.  I’m thinking of part of the Rumi poem “A Community of the Spirit,” on this point:

Why do you stay in prison
when the door is so wide open?

Move outside the tangle of fear-thinking.
Live in silence.

Flow down and down
in always widening rings of being.

Self-determination and autonomy – I’m wondering out loud whether it is possible to consider these important baseline values in a holistic context and not just as what the guardian owes the ward, or what the expectation of a court is relative to the guardian’s actions.  Self-determination is simply too important to not take seriously in the guardian-ward context.  I first wrote about this important right of self-determination of elders in the context of participation in mediation in an article I published in the March 2010 (volume 39, no. 3) issue of The Colorado Lawyer entitled “Elder Mediation Comes of Age in Colorado.”   Until the next post . . .

© Barbara E. Cashman 2016   www.DenverElderLaw.org

 

 

 

 

 

 

Guardianship of an Elder – Some Important Considerations

Delicate Flower

Delicate Flower

As the number of retirement age baby boomers continues to rise, we continue to grow our unprecedented proportion of old people in our population.  What does this mean for our future?  Well, lots of different things, but I’m focusing on an often neglected side-effect of our longevity: the likelihood of incapacity.

Capacity itself is a broad topic in the law.  In my area of practice – we typically follow the question whether someone has (or had) capacity with the focusing query – capacity to do what?  Execute a power of attorney, sign a will, direct one’s medical care?  Here’s a link to a document from the American Geriatrics Society about medical capacity that is an excellent Q&A on the topic of capacity in the medical decision-making context.

There are often many ways to enhance someone’s capacity if they are facing cognitive challenges.  Some of these enhancements can assist greatly where the deficit in capacity is of a more temporary nature, such as confusion.  Confusion can have a wide array of sources including alcohol or substance intoxication; poor heart or lung function (resulting in e.g., hypoxia); malnutrition or dehydration; blood sugar too low or too high; medications not managed effectively or withdrawal of medication; head injury or other bodily trauma; infection. Insomnia; and a number of other diseases and conditions.  I mention these to contrast them with a kind of capacity that is typically not temporary and likely to diminish further as the underlying disease progresses or as the condition worsens.  The kind of incapacity I am considering is not the temporary or reversible kind.

There are a number of medical conditions or diseases which can affect capacity as well.  For example, there are several types of dementia including Alzheimer’s disease, alcoholic dementia, vascular dementia, frontotemporal dementia (Pick’s disease is one example) and Diffuse Lewy Body dementia which can occur with Parkinson’s disease.  For our purposes in Colorado, one relevant statutory reference is to C.R.S. 15-14-102(5), which concerns the definitions for protective proceedings:

“Incapacitated person” means an individual other than a minor, who is unable to effectively receive or evaluate information or both or make or communicate decisions to such an extent that the individual lacks the ability to satisfy essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance.

In the context of the medical conditions and diseases which cause dementia, a major goal of a capacity determination is to not just identify the disease, condition or injury which is the cause of the ongoing dementia (and which often progressively worsens over time), but to identify and promote the AIP’s self-determination and other rights to the extent possible.  Planning for the future can typically be accomplished even after a diagnosis or dementia such as Alzheimer’s.  The Alzheimer’s Association has a helpful brochure here.

While a person with dementia faces a host of challenges to their autonomy and self-management of activities of daily living (ADL), appointment of a guardian for an alleged incapacitated person need not necessarily be a self-fulfilling prophecy in that taking the AIP’s rights away makes them less competent.

Here is a link to the Colorado Judicial Branch’s website which contains helpful information about adult guardianship in Colorado and the probate court process known as “protective proceedings.”   The Guardianship Alliance of Colorado also has helpful resources, particularly pertaining to the expectations and duties of a guardian for an adult.  Finally, here’s a link to the 2016 Senior Law Handbook, published by the Colorado Bar Association.  Chapter 26 is devoted to guardianship of adults.

So what is the overall nature of an adult guardianship proceeding?  It is called a protective proceeding because its underlying aim is to protect the well-being of vulnerable adults.  This protection comes at a steep price however, the near complete stripping of civil rights of the AIP.  The ward will retain the right to vote, however.  So what is the task of a petitioner (the person seeking a guardianship) and what is the court’s role?  Within the context of protecting a vulnerable individual and based on all the cognitive and other deficits which prevent the person from functioning at an autonomous level, there are many losses sustained.  Amidst these losses, however, is the person’s ongoing right to self-determination.  Self-determination is an ancient right as far as the law goes, part of the inviolable rights which set apart humankind from other beings in the animal kingdom.

Self-determination is something not often discussed except in the most desperate of circumstances, hence its relevance to this discussion.  A basic precept of international human rights law (particularly in the post-colonial era), in our country’s history, it has been relevant to American Indian peoples, the disabled and other marginalized groups in our legal history and is enshrined in many countries’ constitutions.

In the future, I will be taking a further look at how the self-determination of a ward (after judicial determination of incapacity) can be supported by a guardian.

© 2016 Barbara Cashman  www.DenverElderLaw.org

Social Media Abuse of Elders

Contrast

Contrast

 

I recently came across this horrifying article published Monday in ProPublica, entitled “Federal Health Officials Seek to Stop Social Media Abuse of Nursing Home Residents.”  It seems that some staff members of nursing homes are publishing photos, audio and video recordings of some residents in the social media like Snapchat, Facebook or Instagram, or sent in text messages as multimedia attachment.  These pictures, audio and video files often depict elder residents of the facilities s in demeaning and humiliating ways so as to result in mental abuse.   The Centers for Medicare and Medicaid Services has recently sent out a memorandum concerning this to the State Survey Directors.

Do the skilled nursing facilities have prohibitions against such intrusions in place?  Some evidently did not, but there can be little doubt that nearly all will have such protections in place soon in light of these disturbing developments.  Here’s an article about such violations in Ohio nursing facilities.

The CMS memo referred to above defines mental abuse as that abuse which:

[M]ay occur through either verbal or nonverbal conduct which causes or has the potential to cause the resident to experience humiliation, intimidation, fear, shame, agitation or degradation.  Examples of verbal or nonverbal conduct that can cause mental abuse include but are not limited to: nursing home staff taking photographs or recordings or residents that are demeaning or humiliating using any type of equipment (e.g., cameras, smart phone, and other electronic devices) and keeping or distributing them through multimedia messages or on social media networks.  Depending on what was photographed or recorded, physical and/or sexual abuse may also be identified.

ProPublica has been following this following these developments for many months and this article from December 21, 2015 details some of the incidents this mental and physical abuse of incapacitated elders perpetrate by the nursing home staff members.  In a case in New York where a nurse aide took photos of an incontinent resident’s genitals covered in fecal matter and shared them with another staff member on Snapchat, he was fired and pleaded guilty to a misdemeanor count of willful violation  of health laws.  What I found particularly disturbing was the comment of one home’s administrator to ProPublica that “[t]echnology is a problem for us, for everybody, these days… The resident involved was not harmed but certainly it was a serious incident.”  Are incapacitated nursing home residents not entitled to any human dignity and to be free from such exploitation for someone’s entertainment?

One of the incidents described by ProPublica is from August 2015.  It occurred in a rural area of Colorado and involved a youth volunteer at a nursing home who took a selfie which showed a 108-year-old resident urinating.  The volunteer apparently shared the photo with her friends at school and the facility did not learn of the offending photo until months later.  The volunteer was not monitored by the facility but did report to the local police, and was later charged with invasion of privacy.

What is human dignity when it cannot be defended by an incapacitated elder? What is human dignity when it is not readily apparent or recognized in places where people are institutionalized for the paramount concern of their safety?

Dignity, as in the legal right, is not easily defined.  In fact, you would be hard pressed to find many references to it in our laws.  International law, specifically the international law of human rights, has much more to say about human dignity, but that is another blog post!

I will close with just a couple observations and questions. . . .

If humiliation is the opposite of being treated dignity and respect, is our system of laws really equipped to deal with this type of new frontier of the rights of incapacitated persons to be free from intrusions by others who humiliate them for sport or humor?

Is the dignity of or respect for elders a right in this context or is it overshadowed by our concerns for safety, and how does an incapacitated elder’s diminishing bailiwick of autonomy factor into this equation?

On this note, here is a link to an interesting article about the dignity of elders.  More to come on this very challenging topic.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

Successful Elderhood and A Good Death

littleton elder law

Mercury and his Caduceus

This is my second installment on the theme of successful elderhood and its obstacles.

In this post, I am revisiting the theme of “a good death.”  I first wrote about this in 2013 and recounted my experience with my father’s death at his home in 2010.  As I write this post, I am reminded that this theme is picking up more attention.

Perhaps I will start with the practical first – how does one, with her or his own planning or good fortune, as well as with the assistance (and sometimes this is a difficult term to use in this context) of loved ones or others – pull off a good death?

Let’s start with some numbers here.

Here are some recent (released 4/16) figures from the U.S. Centers for Disease Control and Prevention which shed light on older persons’ health and mortality.  Looking at the data in NCHS data brief No. 182, from January 2015 – it states:

From 2000 through 2010, the number of adults aged 85 and over in the United States rose 31%, from 4.2 million to 5.5 million, and in 2010, this age group represented almost 14% of the population aged 65 and over (1). It is estimated that by 2050, more than 21% of adults over age 65 will be aged 85 and over (2). Given this increase, adults aged 85 and over are likely to account for an increasing share of hospital utilization and costs in the coming years (3). 

 This is an interesting report – it offers a solid basis for my concern when I hear of one of my old (85+) clients being hospitalized!  When we look at hospital admissions for the old of the old (folks 85 and over), we see the top six causes (for 2010) for hospitalization as: congestive heart failure, pneumonia, urinary tract infection, septicemia, stroke, and fractured hip.  The likelihood of hospitalization for any type of injury for the 85 and over cohort was higher than the rate of either of the 65-74 or 75-84 groups.  The same group of 85 and over was also the least likely to be discharged to home and the most likely of the three groups to be discharged to a long-term care facility or to die in the hospital.  Of note here is the 6% figure for deaths, which is double that for the 65-74 group.

How many septuagenerians and octogenarians plan for or talk with others (from whom they will need support for their decisions and choices) about “a good death?”  Well, I haven’t seen any real statistics on that!  Keep in mind that Medicare recently (in January of 2016) started paying doctors for having an end-of-life consultation with their patients, so that seems like a good start. But there may be a glitch to that simplicity, as information used in a recent Forbes article shows that almost a third of doctors say that they don’t really have a formalized system of talking to patients about such matters and the same percentage (29%) they haven’t had any training on how to talk with patients and their families about such topics.

So with this rather bleak picture of the status quo before us, how is it that we can better come to grips with forging a better – more humane and dignified – path to death?  Where are the sources of this helpful information? Well, we can start by listening to the dying!  Keep in mind that dying isn’t simply a medical process, a failure of intervention or curative   measures – it is a physical process which is inevitable for every living being.  Palliative and hospice care offer  means toward that end in the medical context, but as we know there are often a number of emotional, legal, financial, psychological and cultural obstacles which can appear at the end of one’s life.

I liked this article from The Greater Good which offered the following points under the subtitle “how to die well:”

  1. Experience as little pain as possible;
  2. Recognize and resolve interpersonal conflicts (it lists Dr. Ira Byock’s Four Things here) to say  – I love you; thank you; I forgive you; and please forgive me;
  3. Satisfy any remaining wishes that are consistent with their present condition;
  4. Review their life to find meaning;
  5. Hand over control to a trusted person, someone committed to helping them have the kind of death they desire;
  6. Be protected from needless procedures that serve to only dehumanize and demean without much or any benefit; and
  7. Decide how social and how alert they want to be.

These seven means seem simple enough – but remember the big difference between simple and easy! Can any of us really know when death is near, when the dying part of our life or another’s is taking place?  If we start considering the possibility, then we see opportunities.  But these questions obviously don’t have definitive answers!  For all of our talk about health care self-determination, we – not just the individuals making the advance directives, but also upon those on whom the dying rely for assistance, have precious little experience with really thinking through the “what happens if” and the “what happens when” scenarios.

So I will close this post with two challenging questions –

How difficult will it be for someone over 85 to not be transported to a hospital for treatment at the end of a long and difficult illness  – particularly if the trip to the hospital is for the treatment of an injury that is not related to the terminal or chronic illness?

How difficult is it for us to adjust our thinking about these things as we age and become more frail and less able to withstand the medical interventions which were more likely to be restorative or curative in our younger years?

PS Don’t forget that Friday is Denver’s Senior Law Day! The morning event is scheduled for the PPA Event Center and you can buy your tickets here.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

World Elder Abuse Awareness Day – June 15, 2016

Samurai Mask

Samurai Mask

Just eleven days ago, I presented at the 6th annual Jefferson County Senior Law day. No fewer than three of the sixteen topical presentations concerned preventing or combatting elder financial abuse. It is on everyone’s minds as the scammers and predators continue to devise ways to relieve elders of their retirement savings.

But elder abuse isn’t just of a financial or transactional nature.  Today’s post is about the World Elder Abuse Awareness Day (WEAAD).  Yes, WEAAD is on Facebook – check out their page here.

Elder abuse can take a number of forms and while some of it often has characteristics common the domestic violence, working with elder victims of abuse has a unique skill set.  The National Clearinghouse on Abuse in Later Life has links to webinars and other information available here on raising awareness about elder abuse and promoting dignity across the lifespan.

More information, including helpful fact sheets in several languages, is available here from the U.S Department of Health & Human Services, National Center on Elder Abuse.

According to the United Nations, which established World Elder Abuse Awareness Day in General Assembly Res. 66/127, the global population of people aged 60 years and older will more than double, from 542 million in 1995 to about 1.2 billion in 2025.

Did you know there is proposed federal legislation on this topic? Read more about the Elder Abuse Victims Act of 2016 here.  While it has a very slim chance of passage, its third introduction in the house provides the following as its full title, written by its sponsor Peter King (R. N.Y.):

To better protect, serve, and advance the rights of victims of elder abuse and exploitation by establishing a program to encourage States and other qualified entities to create jobs designed to hold offenders accountable, enhance the capacity of the justice system to investigate, pursue, and prosecute elder abuse cases, identify existing resources to leverage to the extent possible, and assure data collection, research, and evaluation to promote the efficacy and efficiency of the activities described in this Act.

Raising awareness about elder abuse is a community effort! Watch this sixteen minute and emotionally powerful video about confronting elder abuse in America on the National Council on Aging’s “Elder Justice Now Campaign” page – it gives a face to victims of elder abuse.  I count myself among those who aspire to old age one day, and I believe it is up to us to take measures now to ensure that elders in our community command respect and dignity and are protected from exploitation and abuse from opportunists and predators.

That’s all for now.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

Yours, Mine, Ours and Theirs: Some Practical Questions to Get Started

Southern Colorado Springtime

Southern Colorado Springtime

 

So this is part five of my series and just in time for next Saturday’s Jefferson County Senior Law Day (June 4, 2016)! I took a couple weeks off for a vacation, but I’m back now.  Here’s a link to a bit more information about this year’s program which will again be held at Colorado Christian University in Lakewood.  I don’t yet have a link to the 2016 Senior Law Handbook, but will provide it when it becomes available.

For the last couple years of Senior Law Day, I have presented on financial powers of attorney and conservatorships, but this year I was approached about presenting on a new and different topic, hence the title of the “Yours, Mine, Ours and Theirs” presentation – which will be its first time out.  I don’t know how many people will show up for my presentation, because the title is purposely short. . .   I’ll be presenting it at 11:30 and will have informational flyers available for attendees.

So here’s an overview along with some of the questions that folks “re-coupling” in later life might want to ask themselves and discuss with each other.  This discussion, a most necessary and valuable conversation when had at a time that is planned – and not in the midst of a crisis or emergency, can clarify expectations and prevent conflict in a number of important ways by managing expectations.  So, let’s look at where we find ourselves. . . .

Remarriage or Re-Coupling After Widowhood

I use the term “re-coupling” to encompass marital, non-marital (living together), and other types of relationships which people forge with their partner or other dear ones.  Just as a bit of a refresher, while the “yours, mine and ours” may seem fairly straightforward, figuring out which property will be maintained or held separately and how joint property will be titled and maintained, particularly in the event of disability and death, is usually a bit of a challenge.  Remember that I have added “Theirs” at the end of the title to reflect the fact that many of us in these re-couplings have children from previous relationships.  In my experience with estate planning for blended families or later life re-marriages, there is often a strong desire to address and adequately or equitably provide for adult children of the respective spouses or partners.  In some cases, spouses will leave everything to the survivor of the two, with the option for the survivor to leave something or nothing to that first to die spouse’s children.  Others, including those re-coupled spouses who were previously widowed, may feel that their children should inherit at least some portion of their (the remarried widowed spouse’s) estate after the re-coupled spouse passes away because some portion of that estate may have been accumulated by the adult child’s first-to-die other parent.  It is not uncommon for a re-coupled spouse or partner to feel that their adult child(ren) ought to have a stake in their inheritance.  This expectation is often expressed by the child(ren) as well.

Many of these couples, particularly those who are already receiving retirement benefits when the re-coupling occurs, must carefully consider the impact (sometimes an adverse financial impact) that marriage has on the benefits received as a result of being widowed.  For this reason, some older couples may choose to have a non-marital or living together agreement in place, so that these matters are more clearly elucidated.

Remarriage or Re-coupling After Divorce

Remarriage after divorce presents its own financial challenges as the number of baby boomers (many of whom were in long-term marriages of twenty or thirty years) divorcing has been on the rise.  There may be a splitting of retirement benefits (as in a qualified domestic relations order – QDRO) or other splitting up of retirement assets of a qualified or nonqualified nature.

Remarriage or Re-coupling and Disability Planning

Yes, this is the other “d” which is very important and should not be overlooked!  While death is an uncertain certainty, whether we will suffer some form of disability – physical, cognitive, psychological – is a certain uncertainty.  In my opinion, re-coupled folks or remarried spouses need to have these questions sorted out more clearly than those who are single or only married once. Why? The best way to minimize the potential for conflict in the event of a health crisis is to make a plan which identifies key people and describes their roles,  such as:

  • Who will be the health care agent or proxy decision maker?
  • How will the spouse or partner be empowered to make health care decisions?
  • How will the adult child or children of a disabled or incapacitated parent be empowered to make health care decisions?
  • What will be the process for communication between all the persons involved?

Another question deserves its own paragraph, but I will simply mention the question here – have you examined your expectations around care and caregiving for your spouse or partner?  Alright, this post is getting a bit long-winded here, so I will wrap up with just a few more questions, which I will no doubt be putting into that flyer for Senior Law Day.

Have you both considered the level of financial stress relative to the longevity (actual and potential) of your relationship?  I will close with a few bullet points to ponder:

What do you need to know about your own and your partner’s finances before you tie the knot or otherwise intertwine your finances?

  • How much debt do you have? What kind is it (credit card, car loan, other)?
  • How will we handle financial or other interventions or assistance for an adult child?
  • What do you earn now and what will you have as income sources for retirement (pensions, 401(k), IRA, Social Security, etc.)?
  • How will you and your partner share or split expenses?
  • Do you and your partner have compatible financial values and goals?
  • Would you consider a marital agreement, written plan or a will (or will substitute) to provide more clarity about rights, expectations and so on in the event of disability and eventual death?

I am looking forward to presenting on this topic of “Yours, Mine, Ours and Theirs” which is a most interesting topic to me, based on the experience that each blended family or recoupled relationship is utterly unique.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

 

 

 

 

Elder Financial Abuse of a POA by an Agent – part II

Siennese Sculpture

Siennese Sculpture

 

This is the second post on the topic of elder financial abuse and abuse of a power of attorney by an agent.  Read the first post here.   In the background here is the bigger question about how we can think about how we want manage our longevity and plan for incapacity, but let’s face it . . . .  many of us would prefer to not think about it at all, so avoidance is a common response to this question!  This looming prospect of diminishing capacity is of course is a phenomenon that will affect us in increasing numbers as the baby boomer cohort continues to grow older.  For a bit of background about the “job description” of an agent under a general (financial) POA in Colorado, you can read the Colorado Bar Association’s brochure entitled “So Now You Are an Agent Under a Financial Power of Attorney here.

As the saying goes, an ounce of prevention is worth a pound of cure – and it is particularly applicable to the task of naming the right person as agent in a POA.  Fortunately, there are plenty of resources about the prevention aspect.  The American Bar Association, through its Commission on Law and Aging, has lots of helpful information relating to durable power of attorney abuse and other financial exploitation topics, as well as materials relating to the legal issues involving elder abuse and resources for law enforcement and lawyers is available here.

Let’s start small with the two examples I described in the previous post: So what might this kind of POA abuse or exploitation look like?  Often the elder principal’s major asset is the home.  Is an agent transferring the principal’s interest or a partial interest in the principal’s home to him or herself (not as agent)?  What I have seen on more than a couple occasions is an agent use a quitclaim deed to accomplish this type of transfer.  One was for supposed “safekeeping” – the agent was afraid that a sibling was going to be given an interest in the property, so the agent transferred to herself first (!); and another transfer was “just in case” mom needed to qualify for Medicaid later one, at least that was the rationale for relieving her of her sole asset.

What can an elder law attorney do to assist in these types of scenarios?

Individual concerns vary widely and an elder may be interested in preserving some sense of family harmony and so the initial gestures to correct a problem don’t always need to be big and bold.  People don’t usually want to start with the nuclear option, but it is important to identify a strategy that will identify the “what if’s” in the event the agent doesn’t take the opportunity given to them to fix the problem and do right by their parent.  In the quitclaim transfers described above, a letter from an attorney (me) was enough motivation to get the situation fixed and they were both successfully resolved with no legal proceedings.  These situations were remedied by the transfers being “undone” by the agents.  In the first example, the POA was revoked and replaced with another POA.  This is often not so simple however, as a recalcitrant agent may often refuse to stop or cooperate and so legal proceedings must be instituted.

What else can an elder principal do about shutting down a “rogue agent?”

Back to the prevention theme:  Stay engaged with others!  While many of us Americans love to be independent, it is better for our overall health to be part of a community.  Remember that social isolation of elders can sometimes lead to situations where an elder can easily be taken advantage of by ill-intentioned people.  Read more about elders and social engagement here.  In my experience, neighbors can be very helpful in this regard, to keep a watchful eye on the elder and the elder’s emotional well-being and engagement with others.

Okay, to stay on today’s topic here, let’s take a look finally at some of the legal action that can be taken to remedy and rectify a situation created by a misbehaving agent.

There are a number of legal and equitable actions and remedies available to a principal who has been damaged by their agent.  Remember that the agent works for the principal and the agent is a “fiduciary” of the principal, which means the agent must act with the highest degree of good faith on behalf of the principal.

In a situation where the agent is behaving badly, there are a number of actions which the principal can consider.  The POA statute and the probate code allow for a number of proceedings in these kinds of circumstances, including: removal of the agent; filing a petition to review agent’s action; and an action for breach of fiduciary duty.  Equitable remedies (as distinguished from legal remedies) would include petition for surcharge (which might include lost income and recovery of attorney’s fees) and imposition of a constructive trust.  Another type of proceeding against the agent would be tort actions – including fraud, misrepresentation and conversion.

Here’s a law review article that provides a good overview of many of the legal and equitable actions and remedies which might be pursued.

That’s all for this second installment.  In the third and final installment on this them I will be looking at the similarities between elder financial exploitation and abuse and domestic violence, as they share many similar behaviors.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

Vulnerable Elders and the Slayer Statute

Italian Stone Face

Italian Stone Face

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

Vulnerable Elders

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

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

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

The Slayer Statute – A Modern Law with Ancient Origins

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

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

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

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

This post will be continued next week. . .

© 2016 Barbara Cashman  www.DenverElderLaw.org