Grief, Gratitude and Meaning in Dying

arapahoe county probate

Denver Botanic Gardens in July

 

Okay, maybe you were looking for an upbeat happy-faced Thanksgiving post from me? Well, I have advised clients and written in blog posts that it is a great time to have “the conversation” about end of life wishes when family members gather for holidays like. . . Thanksgiving! So here is the themed post for this year’s holiday: grief is part of life and so, part of death – whether it is grief around a life change like a loss of a relationship or status or the loss of a loved one’s or the prospect of losing one’s own life.

Why is this so difficult to talk about? No, I don’t mean this as a rhetorical question, rather as a question to ask each other and ourselves – to discuss individually and collectively in our communities.  The time is right for this.  Medical technology has extended our longevity such that some are now seriously questioning the purpose of such longevity.  I’m thinking of my first Dementia and Memory post of Oct. 1, 2014, where I cite the article “Why I Hope to Die at 75” by Dr. Ezekiel Emanuel.  The obvious answer to the question is that death is a great beyond, an unknown for the vast majority of us.  Reminds me of an observation by my favorite ancient Greek philosopher, Heraclitus:

Whoever cannot seek

The unforeseen sees nothing,

For the known way

Is an impasse.

Fragments, #7 at 7, Brooks Haxton, trans. (2001: Penguin).

Is it because the fear of death is nearly universal?  Ernest Becker, the late anthropologist and author of the 1973 groundbreaking book The Denial of Death, seemed to think so!  This fear is based on the “problem” of the body, how to manage our physical existence and its limitations.  There responses to this come in a myriad of forms: religious, spiritual, moral (philosophy), and ethical – just to name a few.

I would submit that we (as in post-modern American culture) are at an impasse in the debate about death, its meaning and the prospect of suffering as part of the dying process.  Evidence of this is clear from the recent death, via means of doctor assistance, of twenty-nine year old Brittany Maynard.  I find it interesting that the subjects of these types of debate are all young women: Karen Ann Quinlan was 22 when she ingested alcohol with the tranquilizer; Nancy Cruzan was 24 when she was in the auto crash that left her in a “vegetative state;” while Terri Schiavo was 26 when she suffered the heart attack which deprived her brain of oxygen for several minutes.  These are some of the women whose fates have informed the course of development of the law concerning advance medical directives.  What impact will Brittany Maynard’s death have on the state of upheaval surrounding the quality of medical care?  Is this question one that applies across the board to us regardless of our age as adults?

In his article in response to Ms. Maynard and the rising calls for doctor-assisted end of life measures, “Doctor-Assisted Suicide Is Unethical and Dangerous,” Dr. Ira Byock observes

American health care is undergoing tumultuous changes and showing signs of strain. A recent Institute of Medicine report attests to persistent deficiencies in care and social support that seriously ill people and their families experience. Witnessing the suffering of our relatives, friends and, for clinicians, our patients, gives rise to moral distress.  It is not surprising that support for physician-assisted suicide is also rising. The age-old dictum that doctors must not kill patients can appear antiquated, out of touch with hard realities, and even heartless.

One way to look at the euthanasia is as some kind of triumph over the tyranny of death, in that means can be selected to hasten its progress so as to minimize suffering.  But this really begs the question – it is the challenge of meaning, in how we live our lives as well as how we choose to die.

We even speak about death in physical terms – as a wall, a door or a window. Is our imaginative vocabulary so limited?  Why is it we have such a difficult time in grappling with the question of meaning in our life – is it because we do not wish to contemplate it in light of its physical end, our mortality? Or is the question backwards?  I find an observation by Miguel de Unamuno in The Tragic Sense of Life helpful here:

In the most secret recess of the spirit of the man who believes that death will put an end to his personal consciousness and even to his memory forever, in that inner recess, even without his knowing it perhaps, a shadow hovers, a vague shadow lurks, a shadow of the shadow of uncertainty, and, while he tells himself: “There’s nothing for it but to live this passing life, for there is no other!” at the same time he hears, in this most secret recess, his own doubt murmur: “Who knows? . . . . ”  He is not sure he hears aright, but he hears.

It seems that a major strand of euthanasia seems to presuppose that there is no meaning in the dying process, that it is simply needless suffering.  This is the question that is not addressed by euthanasia, this is the fear that is laid bare and yet still rejected.

And what if true mastery is not based upon the art of living fully, deliberately and mindfully – but rather on the art of dying well?  Indeed, I would say that is an excellent topic for another blog post.  So if you think gratitude is an important expression of being in the world, whether through your heart or your mind or both – I wish you a Happy Thanksgiving!

©Barbara Cashman 2014   www.DenverElderLaw.org

The Medical Power of Attorney and Medical Advocacy: Two Roles are Better than One

Centennial Estate Planning

Along the Banks of the South Platte

How can we help elders navigate the daunting medical system and help them make the best choices for their needs and values?  Last week I attended a lunchtime continuing legal education program sponsored by the Arapahoe County Bar Association and presented by Janine Guillen, an attorney and registered nurse.

Janine told of her personal experience with her mother’s health care issues toward the end of her life and how she advocated for her mother while her sister served as their mother’s health care agent.  Many of us come to be familiar with these matters based on our personal experience with elder parents and their health challenges.  Towards the end of their lives, I was health care agent for both of my now deceased parents.  I remain skeptical about a health care system (Medicare) that pays its provider for services per intervention, and the greater the number of interventions for elders, the higher the mortality.  This post will give a brief overview of the two roles along with some helpful organizational strategies that were proposed.

Yes, these jobs of health care agent and health care advocate can be split.  They are often assumed by a single person, but if it is often helpful and sometimes necessary to split up the roles for assisting an elder.  A result of this is that it can often facilitate good communication among siblings and allow adult children to share some of the challenges and burdens of helping an elder parent.

What your health care agent (agent under a medical durable power of attorney (MPOA) can do for you.

Your health care agent is the person named in a medical power of attorney to make medical decisions for you in the event you are not able.  The types of decision an agent can make can be broad or narrow, general or specific and the agent’s authority is typically set for the power of attorney document.  I am in favor of powers that confer broad authority on an agent.  This is for two reasons, it requires the principal have a conversation with the agent about what the principal wants (a conversation about these matters is necessary) and there is little likelihood for confusion about what an agent can do.  Also, I tend to think that a short document is best, given the amount of time that health care providers spend with their patients, it is not a great idea to draft a long and complicated document which might complicate matters.

I like simplicity and brevity in the medical power of attorney document.  Here’s a current pet peeve of mine relating to this document.  I am puzzled when I see certain language in a medical power of attorney form that specifically addresses the events in which the agent assumes authority to make decisions on behalf of the principal.  I don’t see this language often, but it usually addresses the effective date of the MPOA, offering two alternatives – effective immediately, or as a “springing power” that allows the agent to act only in the event that “my physician or other qualified medical professional has determined that I am unable to make or express my own decisions, and for long as I am unable to make or express my own decisions.”  This is set up as an alternative in a poorly worded form, but there is in reality only one situation in which a health care provider would consult an agent to make decisions regarding a principal.  The doctrine of informed consent requires a health care provider to get informed consent from the principal, and it is only in the event of the provider’s determination that the principal is unable to give informed consent that an agent would be consulted.  All MPOAs are by their very nature “springing” – meaning that an agent is only empowered to act in the event of principal’s incapacity as it relates to the provision of informed consent for health care services.

I cannot say why this confusing language appears in a couple forms I have seen, but it looks to be a relic from the bygone days of the general (financial) durable powers of attorney.  Since the adoption In Colorado of the Uniform Power of Attorney Act, which became effective in January 2010, all powers of attorney (nonmedical) executed after that date are (1) durable unless they state otherwise; and (2) are “standing” powers, meaning that the effective date is that date of signature by the principal and that the agent’s authority to act is not contingent on some event or determination (a/k/a a springing power) unless specified to the contrary.

What your health care or medical advocate can do for you.

A health care advocate is not only another set of eyes, ears and brain focused on medical decisions, the advocate can provide reassurance and companionship to help ensure an elder gets appropriate care, gets answers to questions and otherwise ensure understanding concerning health care services that are recommended.  If you are thinking about getting a health care advocate, make sure it is someone whose judgment you trust and is someone who is not afraid to ask questions or stand up to authority in unfamiliar or stressful situations.

Here’s a bullet list of some of the tips that Janine provided:

  • Go to The Joint Commission website to perform a quality check on a health care organization (hospital or provider);
  • Use language and specific observations that your doctor can use to help diagnose a problem (use fact-specific observations and stay away from online self-diagnosis);
  • Make sure you have executed HIPAA releases for your agent, health care advocate and any others you want to have access to your medical information;
  • Keep an up-to-date list of all health care providers, their specialties and contact information;
  • Maintain a current health history and medications list so that it doesn’t have to be remembered and written down for each provider; and
  • Write down questions you have so that you don’t forget to ask them when you see the doctor.

Here is a link to a Forbes article about how to become a patient advocate.  Many of these advocates gain their skills and come to appreciate the need for such services as a result of coming to serve in that capacity for an elder parent or other relative.  I think it would not be controversial to make the observation that it is not simple for an elder to manage and effectively navigate through our medical industrial complex on their own.

©Barbara Cashman  2014   www.DenverElderLaw.org

Capacity and Incapacity in the Health Care Context

Denver Botanic Gardens

Denver Botanic Gardens

In this second installment about capacity and incapacity, I’m looking at capacity in the health care context.  To recap, the fundamental question of “how much capacity is enough” must be answered with a response beginning with “it depends . . . !”  Some of the varying standards of capacity in elder and estate law can be demonstrated among these categories of capacity:

  1. To make a will (testamentary capacity) – including a will with a testamentary trust
  2. To designate a health care agent in a medical power of attorney (MDPOA)
  3. To execute a general (durable) power of attorney
  4. To execute an advance directive (living will)
  5. To execute a revocable (or irrevocable) inter vivos (living) trust
  6. To make a gift to another person
  7. To make a gift of real estate to another person (via a deed)

So you may be wondering how estate planning attorneys manage these different types of capacity determinations regarding their clients when they are engaged to prepare estate planning documents. . . .  Attorneys are well-advised to be cognizant and careful of the different standards so they can effectively represent their clients.  So, you will note that #2 and #4 above relate to the health care context, but there are also other relevant documents that may include the MOST (Medical Orders for Scope of Treatment) form and related medical orders such as a DNR (Do Not Resuscitate). Unlike the standards for capacity in the will, power of attorney, contract and trust-making contexts, capacity in health care is driven by statutory law – not case law or the common law tradition.  You can read a bit more about the history of informed consent in one of my earlier posts.

The Colorado Medical Treatment Decision Act is found at Colo.Rev.Stat. 15-18-101 et seq.  The statute allows any adult with “decisional capacity” to execute a declaration.  “Decisional capacity” is defined in the statute at 15-18-103(6) as follows: the ability to provide informed consent to or refusal medical treatment or the ability to make an informed care benefit decision.  Note that the statute speaks about medical treatment decisions and also health care benefit decisions. Yes, our Colorado statutes cover all the bases here.  Colo.Rev.Stat. § 15-18.5-102 and 103 relate to the health care power of attorney for medical treatment, §15-18.5-104 and 105 (the statutory form for naming the surrogate) allows for appointment of a surrogate decision maker for health care benefits.  Why are these documents so important to have in place?  So that you can name a person in charge and know they will be able to perform an important job for you if you need their assistance.  If you don’t name anyone, there is a vacuum, often a decision by “committee” of family members and perhaps the need for instituting guardianship proceedings in probate court.

The documents evidencing the decision-making authority of various named agents and surrogates in advance directives and MDPOAs are valid in every state of the U.S, and while each state has different laws concerning these important health care documents, they are generally viewed as “portable.”  It is a good idea to keep these documents up to date and current with the laws of the state in which a person resides.  I think it is important to update an advance directive every few years, especially as a person ages, because health care wishes are subject to change, based on one’s outlook and experience over time.  If you aren’t sure where to start in this regard, go to The Conversation Project to begin.  Every person over eighteen really ought to have a medical power of attorney!  This is a simple but powerful document and it is best to have a conversation with your selected agent to make sure (1) they are willing to serve and (2) they know what you want.  I haven’t yet met anyone who wants to be named as a health care agent – charged with life and death decision making authority with regard to the principal (the person naming the agent) – who wants to perform that job without knowing what the principal wants!

One last point for this overview, you might be wondering about those electronic medical records for a person who is incapacitated or has died and an agent or guardian or personal representative is charged with the authority over electronic records?  Colorado law doesn’t specifically address “digital assets” yet, but the Uniform Law Commission’s UFADAA (Uniform Fiduciary Access to Digital Assets Act) is final as of July 2014 and ready for state adoption.  There are grounds to have some privacy concerns in the medical and mental health context of digital assets.  The best method to clarify your wishes about maintaining privacy or limiting access to these records is to execute the necessary documents to name your agent and state your specific wishes – particularly with regard to third party electronic medical records access (agent, guardian, personal representative, etc.).  The best policy to specifically address these concerns in the relevant and applicable documents, and if you don’t yet have these documents, remember that the upcoming holiday season is an excellent time to have the conversation about end of life wishes.

©Barbara Cashman  2014   www.DenverElderLaw.org

 

 

 

 

Capacity and Incapacity: A Broad Context for Financial Abuse of Elders (part 1)

Fall Flowers at Hudson Gardens

Fall Flowers at Hudson Gardens

 

Aging is a process.  The fact is that most of us, especially my age cohort (the Baby Boomers), really don’t like to think about aging or incapacity or death.  Many of us think that if we eat right and exercise, we’ll just be able keep at it until we’re “done” at some appointed time, like an expiration date.  This post will give an overview of what is known in the law as capacity and incapacity and consider how these factor into financial abuse or exploitation of elders as it relates to this first installment – testamentary capacity (capacity required to make a will).

Lawyers who practice in the field of estate and elder law need to be prepared to make assessments regarding a potential client’s capacity.  The assessment are usually not so simple, but there are many different ways that the assessment can be made.  Most of my colleagues are not really happy about this, but the bottom line is our rules of professional conduct require us to get informed consent from our client, which necessitates a determination of (some level of) capacity on the part of the client.  A special ethics rule (read 1.14 here) applies where lawyers are dealing with a client with diminished capacity – and it is not an easy one to negotiate!

Let’s start with the basics . . . . We have to begin with a fundamental question when we take a look at the term “capacity” and ask ourselves “capacity to do what exactly?”  Sure, I’ve blogged about the importance of a lawyer determining client capacity in the context of elder law ethical issues before, but I’m focusing just on capacity in this post.

This is a fundamental question because like so many other legal questions, the answer begins with “it depends . . . !”  Some of the varying standards of capacity in elder and estate law can be demonstrated among these categories of capacity:

  1. To make a will (testamentary capacity) – including a will with a testamentary trust
  2. To designate a health care agent in a medical power of attorney
  3. To execute a general (durable) power of attorney
  4. To execute an advance directive (living will)
  5. To execute a revocable (or irrevocable) inter vivos (living) trust
  6. To make a gift to another person
  7. To make a gift of real estate to another person (via a deed)

Why should we be concerned about capacity anyway?  Isn’t there a legal presumption of capacity for any person eighteen or older?  Why yes, generally speaking, a person retains capacity unless a court adjudicates a person incapacitated (typically the result of a guardianship under the Colorado Probate Code, and there are guardianships under the Veteran’s Administration as well).  In fact, there is case law in Colorado which specifically states that a protected person (under either a guardianship or conservatorship or both) retains the capacity to make a will.  The appointment of a conservator or guardian is not a determination of testamentary incapacity of the protected person. Section 15-14-409(4), C.R.S. 2004.  In re Estate of Romero, 126 P.3d 228 at 231 (Colo.App. 2005).   See also In the Matter of the Estate of Gallavan, 89 P.3d 521 at 523 (Colo. App. 2004).  This court distinguished testamentary capacity from a protected person’s ability to make an inter vivos trust, which the Gallavan court held was a right vested in the protected person’s conservator. Id.

A person has testamentary capacity if he or she is an “individual eighteen or more years of age who is of sound mind.” Colo. Rev. Stat.  15-11-501.  So if the testamentary capacity standard seems to be the “basement” (the lowest level) as to what level of capacity is required, what measures can be taken to ensure that a will is reflective of the wishes of the deceased testator (will maker)?  First off, the attorney needs to be sensitive to capacity concerns of elder or ill clients, particularly to safeguard a later reasonably foreseeable challenge to capacity and also so as not to facilitate an at risk elder from being exploited by another person.  This is seldom an easy matter and it requires sensitivity based on information gathered by the attorney about the elder client’s situation, particularly when the elder is sick, in the hospital or otherwise unable to travel to the attorney’s office (elder law attorneys do typically make “house calls” for some clients).   And of course, the attorney will be considering what types of services are requested – like changing a living trust, disinheriting a child in a will or gifting real estate to a caregiver.

The evaluations of capacity employed by attorneys vary widely – as do those used by medical professionals.  The legal standard for evaluating a testator’s soundness of mind may be evaluated under either the test set forth in Cunningham v. Stender, 127 Colo. 293, 255 P.2d 977 (1953), or the insane delusion test as described in Breeden v. Stone, 992 P.2d 1167 (Colo. 2000).  The case law cited here is relevant in the will contest setting – after a testator has passed away and there is a challenge to the validity of the will.

So what is it that an attorney can do to make the will she has prepared as “water tight” as possible?  Colorado law no longer requires witnesses to the signing of a will (just a notarized signature), but for those of us who focus in this area of law, most agree that the best practice is to have an “execution ceremony.”  I often joke about this at my final meeting with estate planning clients – that my execution garb (hooded black robe, blindfold, etc.) is at the dry cleaners . . . !   Inappropriate humor aside, an execution ceremony with witnesses is helpful because it converts the will to a “self-proving” will.  The questions I ask the testator in front of the two witnesses are based on the Cunningham test referred to above, to demonstrate  a person has testamentary capacity when the person (1) understands the nature of the act they are performing (making a will), (2) knows the extent of his or her property, (3) understands the proposed disposition of the property in the will, and (4) knows the natural objects of his or her bounty, and (5) the will represents the person’s wishes.  Making a will “self-proving” helps because once a proponent of a will has offered prima facie proof that the will was duly executed, any contestant has the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation by a preponderance of the evidence. In re Estate of Romero, 126 P.3d at 231.  Section 15-12-407, C.R.S. 2004; Breeden, supra, 992 P.2d at 1170.

There is scant Colorado case law detailing what specific knowledge is required for a testator to be deemed to know the extent of his or her property. However, the cases which touch upon this issue, including the Cunningham decision itself, indicate that it is sufficient that a testator comprehend the “kind and character of his [or her] property” or understand, generally, the nature and extent of the property to be bequeathed. Cunningham, supra, 127 Colo. at 300, 255 P.2d at 981; see also Columbia Sav. & Loan Ass’n v. Carpenter, 33 Colo.App. 360, 368, 521 P.2d 1299, 1303 (1974), rev’d on other grounds sub nom. Judkins v. Carpenter, 189 Colo. 95, 537 P.2d 737 (1975).  The amount or value of the assets tends to be merely a detail.  In other words, “A perfect memory is not an element of testamentary capacity. A testator may forget the existence of part of his estate … and yet make a valid will.”  1 Page on Wills § 12.22 (rev. 2003).  In another installment I will continue this discussion about capacity.

To be continued . . . .

©Barbara Cashman  2014   www.DenverElderLaw.org

The High Price of Death Denial

Highlands Ranch probate

Fall Colors near Pine

My best friend in Sacramento sent me a link yesterday morning about (Dr.) Atul Gawande’s latest book:  Being Mortal: Medicine and What Matters in the End.  Thanks Liz!   This title is also inspired by a couple other occurrences too – Halloween and Day of the Dead are approaching soon and this weekend I will be going up for a training flight in a spiffy Cirrus SR22.

I tend to equate thinking about death and practicing dying a little every day (letting go of attachments to what appears to be the status quo) with being alive.  Some folks would question my orientation, but I believe thinking about our mortality is far from morose and gloomy, rather it reminds us that our time here is limited and precious!  Death denial has all kinds of costs associated with it.  Because I am a lawyer, I am more familiar with the legal aspects of denying death (it won’t happen to me, you can’t make me decide what I want, etc.) but there are manifold aspects.

So, I’ll get back on track with Dr. Gawande’s latest book.  No, I haven’t ordered it yet, but I did watch the clip from his interview by Jon Stewart on The Daily Show.  I liked the interview, which was a great overview of the present-day dilemma of aging Americans.

What I found refreshing was that Dr. Gawande was looking carefully at how doctors ask their patients questions about health care values, medical wishes and end-of-life choices.  One might think this is common for doctors, but it is sadly quite uncommon, unless you are talking about the palliative or hospice care docs.  Dr. Gawande had personal experience to draw on for his writing – with his mother-in-law and also his father, who went to hospice care.  But there is still much resistance among doctors (even those who would choose hospice care for themselves) to discuss hospice and palliative care with a patient.

A few things came to mind after watching the short clip.  First, I will continue my policy of pressing further when a client states “my son is a doctor, so he can make these difficult choices for me” – with my response that medical know-how does not translate into emotional capacity to make difficult decisions on another’s behalf.  Next, his observation that it is anxiety about our death which cripples us and leads us to bad decisions.  This cries out for attention in the form of a readily available fix . . . .  click here for helpful materials in pdf format from The Conversation Project (I’ve already run out of them at my office)!  Lastly, the importance of advance planning – at minimum a medical durable power of attorney along with a discussion of wishes with the selected agent – is best done when someone is healthy and well, before the scary subject of end of life care is actually on one’s medical radar.  If we can somehow “normalize” this conversation about dying, we can neutralize much of the anxiety around this topic.

Beyond the emotional costs are also the financial and ethical costs.  In the past we sometimes called these measures heroic, but the connotation was misleading at best.  The term used now is “futile.”  What is the definition of “futility” in medical terms?  Here’s a helpful article from the Mayo Clinic with some contextual definitions of the term.  Over the past several years, much has been made of a perceived government agenda concerning “rationing” of care, but is it the government’s responsibility to decide how much or what kind of heath care we receive?  Is it our doctor’s responsibility to decide if we aren’t prepared to make a decision? No and no! It is our own responsibility to decide, for ourselves and to our loved ones, especially when we do not wish either to be a burden or to be tortured.

How do we make those difficult decisions when we are incapable? Well, if we have a medical power of attorney, that is best place to start. We can also execute advance directives to help solidify the wishes we have communicated to our agent and other loved ones.  Our collective inability to have “the conversation” about health care and end of life wishes costs us dearly – both the patient who didn’t choose in advance and our community, which must collectively bear the cost of such care.

So I will close this post with the theme of festivals and holidays honoring the dead, here are a few of them:

  1. Halloween
  2. Memorial Day (originally known as Decoration Day)
  3. El Dia de los Muertos (Day of the Dead) (the Mexican version of #4)
  4. All Saints’ Day and All Souls’ Day (Catholic)
  5. Bon Festival (Japan)
  6. Chuseok (South Korea)
  7. Gaijatra (Nepal)
  8. Qingming Festival (China)
  9. Pitru Paksha (Hindu)

This list is neither authoritative nor exhaustive.  Bottom line here for purposes of this list – remember the dead by honoring life in the here and know and by expressing love to those you care about while you are able (including having “the conversation” and getting documents in place to memorialize it)!

 ©Barbara Cashman  2014   www.DenverElderLaw.org

 

A Follow-Up to Annuities and Elders – a Complicated Mix

Mount Hope Cemetery, Rochester, New York

Mount Hope Cemetery, Rochester, New York

Here is a timely follow-up to the blog post I wrote a few weeks ago about annuities and elders.  The Colorado Division of Insurance recently amended its regulations applicable to advertising and sales promotion of insurance and annuities, effective July 1, 2014. Regulation 4-1-1 apply to Variable Annuity Contracts and Amended Regulation 4-1-2, to Advertising and Sales Promotion of Life Insurance.  This new regulation also applies to annuity contracts.  You can read the new regulations here.

Section 6 of the new regulations is entitled Disclosure Requirement:

(B) An advertisement shall not omit material information or use words, phrases, statements, references or illustrations if the omission or use has the capacity, tendency or effect of misleading or deceiving purchasers or prospective purchasers as to the nature or extent of any policy benefit payable, loss covered, premium payable, or state or federal tax consequences. The fact that the policy offered is made available to a prospective insured for inspection prior to consummation of the sale, or an offer is made to refund the premium if the purchaser is not satisfied or that the policy or contract includes a “free look” period that satisfies or exceeds regulatory requirements, does not remedy misleading statements.

Section 6 (N) states:

No insurance producer may use terms such as “financial planner,” “investment adviser,” “financial consultant,” or “financial counseling” in such a way as to imply that he or she is generally engaged in an advisory business in which compensation is unrelated to sales unless that actually is the case.

What do these changes mean?  Section 6(N) makes an important distinction concerning annuity sales persons and financial advisors to reflect that a person who sells annuities is typically not a financial adviser who receives compensation which is unrelated to the sales of annuities.  So let’s take a look at the words that can no longer be used in Colorado to sell or advertise annuities and life insurance, due to the potential for misleading consumers?

                 Safe

                Secure

                Certificate of Deposit or CD

If you want to read more about this, check out this article in MarketWatch.

Why is this so relevant for elders?   Many elders are afraid of running out of money toward the end of their lives and do not want to be a financial burden on their family members.  The trickiest part about retirement planning is not knowing whether you will outlive your money.  Another problem with annuities is that they tie money up for a prescribed period of time, when many elders need flexibility in their financial portfolio.   One of the most infamous examples of inappropriate annuity sale for an elder is the story of Alice Bouchard, an 85 year-old who was sold a deferred annuity by an insurance agent which made her money unavailable until she was 101!  Read more about it here.

There are FINRA guidelines and regulatory notices about “suitability” of particular annuities for elders and there are state law statutes and regulations (like the ones above) governing suitability also.  Suitability includes the particular situation of the consumer, their age and needs for liquidity along with things like: what the consumer’s other investments are; the overall financial status; investment objectives and risk tolerance; the consumer’s tax situation; health status; availability of emergency funds and other factors.  These are especially important in annuity sales to elders as over the years there were have been many documented sales that were inappropriate or detrimental to the elder.  Colorado’s regulation 4-1-11 follows the suitability model regulation that was adopted by the National Association of Insurance Commissioners in 2010.

Annuities can be complicated and the contracts often contain many unfamiliar terms.  Colorado’s new regulations help clarify how annuities can be sold to consumers.  It is important to carefully consider a financial course of action, especially when someone is faced with advancing age and health crises.  It is difficult enough to make a sound decision amidst fear, even when it is a fear that another (a stranger perhaps) has brought to you – made you aware of and thus creating an emotional need to resolve that fear.  Yeats aptly observed in “Sailing to Byzantium” that this is no country for old men – this world full of youth and life, and that the agony of aging is inevitable.  But I would submit that Fear – especially of being a burden on others – is another matter.

An important last detail I will consider is the “free look” period. A “free look” period is like a grace period to cancel the contract due to buyer’s remorse. This is for a limited period of time only and after the free look period has passed the contract is fixed and any withdrawals of funds outside the time frame prescribed in the annuity contract will incur sometimes very large penalties.

While the new Colorado regulations will help identify the “no no” words and further regulate techniques and tactics that cannot be used in the sales and marketing of annuities, it is still the best for the consumer to have time to carefully consider what they are getting into before an annuity is purchased.

©Barbara Cashman  2014   www.DenverElderLaw.org

Aging, Meaning and Memory

Medicine Bow National Forest

Medicine Bow National Forest

This is another contemplative post – so please forgive me.   I am preparing for a retreat on this exquisite topic of memory. . . . !   Since I find the topic of spirituality and dementia fascinating, I have been reading “Finding Meaning in the Experience of Dementia: The Place of Spiritual Reminiscence Work,” written by Elizabeth MacKinlay and Corinne Trevitt (published in 2012).  I especially enjoyed reading chapter ten “Grief is part of Life,” that speaks to much of my estate planning work with elders and their loved ones.  It begins:

Loss of relationship either through death or through geographical separation is closely tied to the meaning of life.  Meaning does not cease to exist because a person is dying; in fact, it is in facing death that it can be possible, perhaps for the first time, to see the meaning of one’s life.

Finding Meaning in the Experience of Dementia: The Place of Spiritual Reminiscence Work at 171.

Is our memory informed by our experiences and accordingly limited to our perception alone, or do we have the ability to further construct the memory so as to make it a memory of our whole being, as opposed to some event recalled which can be verified by another?  Therein lies some of the quantity versus quality aspects of memory . . .  but I am focusing today on this topic of memory in the context of aging and meaning.

So much of our important grief work is pushed aside in our death-denying and youth-glorifying culture.  I think this is a big part of the anxiety and depression and despair that so many of us struggle with in our culture because we do not see or otherwise recognize the inherent meaning of loss of youth and dying and death.

Memory is a phenomenon that is both individual and collective.  So to whom does memory belong or to whom should it be attributed?  What part of cognitive decline implicates memory and what is it that we are talking about when we use this term “cognitive decline?”  This can of course be age-associated and within “normal” limits or it can be identified with a disease process, such as the course of dementia of different types.  How do we distinguish the aging process that occurs naturally and that leads inevitably to our death from that process associated with a disease?  This may seem like a straightforward question – but I think it is far from that!  When aging becomes inextricably linked with decline in a way that is viewed as a disease process, we are essentially denying death, killing it off as the culmination of life and viewing the whole aging process and our mortality as a disease, some kind of shortcoming in our biology. If you think I am exaggerating about his, do a search on Aubrey de Grey and his so-called longevity science. . .

Dementia can further complicate a grief process as well.  Even the term “anticipatory grief” sometimes used for grief for the loss of a loved one with dementia before they die – the loss of relationship and the outward self – implicated the complexity of the grief process and the context for the grieving of surviving loved ones.

So now I will turn to the third aspect of this post’s title – memory – to connect the aging and meaning aspects.  What is memory?  Aldous Huxley wrote that “every man’s memory is his private literature.”  In “The Life of Reason,” George Santayana stated that “memory itself is an internal rumor.”  In this respect, we could say, that the memory belongs to the person.  But what about the memory that we share – isn’t that memory too?

What is it that we see and that we call memory?  In “The Marriage of Heaven and Hell,” the poet William Blake observed “If the doors of perception were cleansed every thing would appear to man as it is, Infinite. For man has closed himself up, till he sees all things thro’ narrow chinks of his cavern.”

So does memory free us from the constriction of our lives or does it enslave us to our experience of things past?

It seems that once again, I have asked far too many questions than could be answered in a blog post (or perhaps even a lifetime?!) and with that said, I’ll conclude with Friedrich Nietzsche’s observation that “the existence of forgetting has never been proved: we only know that some things don’t come to mind when we want them.”   Yes, there will be more on this topic . . .

©Barbara Cashman  2014   www.DenverElderLaw.org

Annuities and Elders – a Complicated Mix

Monet Garden Pond at DBG

Monet Garden Pond at DBG

 

Annuities are sometimes described as an emotional investment vehicle because they guarantee lifetime income for a person.  This can help an elder feel more secure about their money, at least about their monthly income.  This security comes at a cost.  There is lots of information, probably too much information about annuities available on the internet.  This is where it is a good idea to employ one’s “crap detector” (as cyberculture expert Howard Rheingold identifies it in the 2012 book NetSmart) but it is not simple for these types of investments because they are often very complicated instruments.

Annuities tie up someone’s money long-term, and the terms of the annuity – both risks and benefits, and especially how the risk is monetized as a cost of the arrangement, should be looked at  carefully.  The annuity is governed by a contract and generally provide periodic payments over a specified amount of time, provide benefits to a designated beneficiary (if the annuitant, the person on whose life the annuity contract is based, dies prior to receiving payment),and can provide certain tax deferred benefits.

Sometimes people sell annuities that are touted as Medicaid friendly, but Medicaid rules, which vary from state to state, change often.  Bottom line is that some annuity sales persons want to sell an annuity that is based simply on the insurance company or other financial institution taking a larger sum of money and doling it out in small portions over a course of years.    Making an investment that may or may not be appropriate or a good idea for a particular individual is often complicated by the perceived “need” to qualify for immediate benefits.  Annuities are only part of the picture.

 

First off, what is an annuity?

The SEC’s website provides a succinct overview of the three basic types:

  • Fixed annuity. The insurance company promises you a minimum rate of interest and a fixed amount of periodic payments. Fixed annuities are regulated by state insurance commissioners. You can check the Colorado Commission on Insurance website here  about the risks and benefits of fixed annuities and to confirm that your insurance broker is registered to sell insurance in your state.
  • Variable annuity. The insurance company allows you to direct your annuity payments to different investment options, usually mutual funds. Your payout will vary depending on how much you put in, the rate of return on your investments, and expenses. The SEC regulates variable annuities.  FINRA has a succinct explanation of variable annuities here.
  • Indexed annuity. This annuity combines features of securities and insurance products. The insurance company credits you with a return that is based on a stock market index, such as the Standard & Poor’s 500 Index. Indexed annuities are regulated by state insurance commissioners.

 

Okay, I might as well go the full gamut here and mention “life settlements” while I’m on the topic of insurance and elders . . . .  Say what? I first heard about these arrangements under their much more glamorous sounding name of “viaticals” or the acronym “STOLI” (stranger originated life insurance). These settlements became popular during the AIDS epidemic, but the first instance of it being approved comes from the 1911 U.S. Supreme Court decision of Grigsby v. Russell, 222 U.S. 149 (1911), Dr. A. H. Grigsby treated a patient named Mr. Burchard, who wanted a particular surgical operation but could only pay for it with a life insurance policy.  Burchard sold Dr. Grigsby his life insurance policy in return for $100 and for agreeing to pay the remaining premiums, and so the first viatical settlement transaction was created.  After Burchard died, Dr. Grigsby attempted to collect the benefits but the executor of Burchard’s estate successfully challenged the arrangement. The case eventually reached the U.S. Supreme Court where Justice Holmes stated in relevant part that “so far as reasonable safety permits, it is desirable to give to life policies the ordinary characteristics of property. To deny the right to sell except to persons having such an interest is to diminish appreciably the value of the contract in the owner’s hands.”  222 U.S. at 155-56. Okay, once again I’ve gone off-track in this post about annuities. . . .!

I am writing this because in my work people contact me and in the scope of gathering information I often encounter difficulties and misunderstanding on the part of annuitants, beneficiaries and other survivors of annuity contracts.  The remorse and misunderstanding factor on these types of investment contracts can be high – so take a calm and measured look at these before you or someone you care about signs a contract!

Wondering about where to get more information about these annuities? Here a link to the FINRA warning about these investments – FINRA is short for Financial Industry Regulatory Authority (for those of us who took a securities law class in the previous century, this agency was formerly known as NASD – the National Association of Securities Dealers). Where the Securities and Exchange Commission (SEC) is a government regulatory agency, FINRA is the largest self-regulatory organization in the American securities industry.

To recap, annuities seem to be appealing to many older folks (boomers included) because of their emotional appeal of guaranteed income for life.  This article from Business Week is nearly ten years old, but is still relevant.   Best to explore and discover the best means for what to do with your limited funds in retirement and make sure that you have considered all the options before alighting on the one that is right for you – especially if it is an investment that cannot be undone.

 ©Barbara Cashman  2014   www.DenverElderLaw.org

 

Conscious Aging, Memory and Longing

Tex and Barb at Medicine Bow  Lodge & Guest Ranch

Tex and Barb at Medicine Bow Lodge & Guest Ranch

The theme of this post is about remembering and forgetting, for a number of reasons I suppose.  I didn’t forget to publish a post last week, but was absent, away from my everyday for several days, remembering how to ride a horse (hence the picture of me and my trusty mount Tex, a slightly cantankerous nine-year-old gelding who loved to snack on the abundant flowers).  Forgetting often overtakes us on many different levels.

Plato’s fascination with theory was an early way out of the direct experience of being human. Thinking about our human experience is a well-recognized way of distancing ourselves from that experience (even if we don’t think about it in those terms) and is itself a form of forgetting.   Recent works in neuroscience continue to wrestle with the theory of what it is to be conscious.  A recent favorite of mine is Phi: A Voyage From the Brain to the Soul (2012), by professor of psychiatry Giulio Tononi.  His work is well-written and artfully illustrated and I liked especially his chapter 17 entitled “Galileo and the Bat: In which it is feared that the quality of experience cannot be derived from matter.”    In the nine page chapter, Tononi tells the story of the cave (hey, doesn’t that sound like Plato?) and the demise of the bat who was one of its inhabitants.  It is a beautiful illustration that questions how science can describe consciousness – either as a measure or a quality. And further – what can determine it (consciousness) when we humans share the same basic infrastructure or what would seem to be the physical architecture of awareness but that gives rise to so much variation.  Where I part ways with this is in the search for the piece of the brain that contains consciousness, the idea that the quality of consciousness is still determined by some quantity or configuration.  I think this has been previously attempted . . . !

So, if I might suggest an antidote to all these measurable, reducible, objectified search tools, try The Reign of Quantity and Signs of the Times, by Rene Guenon.  I don’t pretend to understand or agree with much of what he had to say, but I do think his point that the immeasurable quality of space is the real space (not the quantifiable space) is refreshing to read and offers much hope for finding a way out of our collective forgetting that plagues so many of us on an individual and collective level.

Another type of forgetting is dis-integration.  This is the reverse of what memory has been described as by Daniel Siegel in Mindsight: Memory is a layering of our experiences which have been processed and encoded, and the integration he describes occurs at a horizontal (left and right brain), vertical (from the lower limbic region up to the cortex), and more subjective integration that includes our personal story, present state of mind, time and the interpersonal element of integration.  The last part – interpersonal integration – Siegel describes as “the ‘we’ of well-being.”  Mindsight, passim at 71-76.

What do we remember and what do we forget? So I return again to the New Yorker article “This Old Man.” In that article, nonagenarian Roger Angell writes beautifully from the heart about being surprised by getting to such an old age, but notes his biggest surprise (#1) is the unceasing need for deep attachment and intimate love.  Based on my reading of his article, I would say the secret to his happiness is longing.  Longing is searching.  As Ravi Ravindra wrote in Pilgrim Without Boundaries:

In being alive to the search, we are alive.

I think this longing, this search is a form of remembering, a remembering of something that is elusive, a connection and not really a memory at all, by the measurement of neuroscience.  Where does it come from?

Another scientist has a different take on why we search and strive to bond with others, particularly in intimate relationships.  In Our Drive to Bond, Bruce Lipton writes about the “fundamental biological imperative that propels you and every organism on this planet to be in a community, to be in relationship with other organisms.”  This type of remembrance is undoubtedly awareness, but obviously on a broad scale indeed, even if it is felt in an acutely personal way.

There are so many ways to address this longing, this remembrance of connection that drives us forward and toward it.  I will close this post with an excerpt from a poem, about our life – looked at as experience that is the long forgetting: This is from William Blake’s Ode (Number 563, Intimations of Immortality from Recollections of Early Childhood, ll. 59-65);

Our birth is but a sleep and a forgetting:

The Soul that rises with us, our life’s Star,

        Hath had elsewhere its setting,

          And cometh from afar:

        Not in entire forgetfulness,

        And not in utter nakedness,

But trailing clouds of glory do we come . . .

You can read the entire Ode here. I’m sure I’ll be back to writing about more practical topics soon, but as the summer blossoms fade and the harvest arrives, I couldn’t pass up this contemplative topic!

 ©Barbara Cashman  2014   www.DenverElderLaw.org

 

Will I Inherit My Parent’s Debts?

 

Denver Elder Law

Summer at Hudson Gardens

Here’s a picture from a bird walk I did with a group at Hudson Gardens last weekend.  No there aren’t any birds in this one, so don’t look for the red-winged blackbird that was nearby.  On that beautiful summer morning I saw a number of birds: a blue heron taking flight from the bank of the South Platte; a cowbird perched at the top of a large cottonwood; a mud swallow in her nest: a brilliantly plumed yellow warbler (yes, warbling while perched in a tree); a cute little chickadee-dee-dee; and a couple hawks flying above us – a red-tailed and a Swainson’s hawk.  Now, down to business. . .

Sometime back I featured a blog post which was written by my friend and colleague Ayo Labode about filial responsibility law (the duty of a child to care for the parent) and that has been a popular post.  Colorado doesn’t have those archaic laws and I don’t think there’s much concern that our legislature is likely to adopt such legislation.  A more common question that is likely to elicit concern and fear, along with a variety of information and misinformation – concerns whether a parent’s debt can be inherited.

This was a much bigger concern a few years back when we were in the midst of economic downturn and grim employment prospects, and many Americans found themselves underwater in their mortgages and out of jobs.  During that time, many of us had to consider very carefully whether it was a good idea to open an estate to collect the assets (even if there were few of them).

A much broader concern however, concerns debts in a decedent’s estate.  Sometimes a parent or other loved one dies with large debts.  This can present many problems for surviving family members about what to do and how to proceed.  Here is an interesting article about this.  An interesting topic – alas, for another post – concerns what is considered or becomes probate property administered by an estate administration proceeding (whether there is a will or no will) and what is nonprobate property that will not typically be subject to probate estate administration.  But remember that it is a good idea to remember to make beneficiary designations for nonprobate assets, these can generally help maintain flexibility as I noted in my Inherited IRAs post a couple weeks ago, reprinted here in this CBA/CLE Legal Connection blog post.

Probably one of the most feared issues under this heading is “Medicaid estate recovery.”  This fearsome prospect does not appear to be widely used in Colorado at this time (based on anecdotal evidence I have collected).  In this context, a house (a typical “probate” asset) is the only substantial asset a person may keep and still qualify for Medicaid. So the state may place an estate recovery lien on a parent’s home to recover those Medicaid payments.  As Ayo explained in the post referred to above, Medicaid will not come after the children of a Medicaid institutionalized parent.

Once an estate is opened, it is open for all comers, so to speak.  This means the bill collectors of course.  Under our probate code, a creditor is entitled to open an estate of a deceased person if no other person has opened one after forty-five days following the debtor’s death.  Our probate code provides a list of claim and creditor priorities, so there is an order to who goes to the front of the line (like medical expenses of a last illness) and who gets relegated to the back (usually unsecured creditors like credit card companies).  Claims must generally be filed within one year of the death, but when an estate is opened for a decedent, it is typical to publish a “notce to creditors” which provides notice to the world and shortens the time period for claims to be filed.

This is why it is a good idea to consider carefully whether to open an estate – to avoid administering an estate that has no real assets or will benefit only creditors. Debts generally come off the top of the estate, so to speak – the beneficiaries (under a will) or distributees (where there is no will) get their share after creditors’ claims have been paid.

Let’s take a quick look at two basic kinds of debts and resulting claims.

Secured debt:

“Secured” means the debt has physical collateral that guarantees the balance. These are debts like mortgages (secured by the home itself) and car loans (typically secured by the car).

 Unsecured debt:

This is debt that is not secured by any collateral but simply is a promise to pay under an agreement.

This is already getting to be a rather long and complicated post, so let me conclude with WHAT TO AVOID.

The easiest way to inherit your parent’s debt:

  • Cosigning on an account. A cosigner will assume full responsibility of shared loans and credit cards.
  • Joint account holders whose income and credit history were used to acquire a loan or credit card are typically solely responsible for paying joint debts.
  • Signing as guarantor instead of as agent under a power of attorney.

To reiterate, sometimes the decision of whether to open estate must be made very carefully, in consideration of what is the asset/debt ratio of all property and whether an opening of probate is for some other reasons a good idea or required.   For example, under Colorado law (for the year 2014) a collection by affidavit can be used by a successor to collect assets not exceeding $64,000.00.  The use of such an affidavit is only appropriate where there is no estate opened on behalf of the decedent.  I will write more on this topic in the future, so stay tuned!

 ©Barbara Cashman  2014   www.DenverElderLaw.org