centennial elder law Archives - The Law Office of Barbara E. Cashman

Let’s Raise Awareness About Elder Abuse!

Date June 29, 2016

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Moonlight Near Westcliffe

For this last post of June, I wanted to circle back on the importance of raising awareness of elder abuse. You can read the Presidential Proclamation on June 15, 2016, for World Elder Abuse Awareness Day right here and if you’re curious about the language of the Elder Justice Act, passed as part of the Affordable Care Act (as Title VI subtitle H, §§6701 et seq.), read this link.

In Colorado, as in nearly all other states, adult protection units are responsible for the reporting and investigation (along with law enforcement agencies) of elder abuse. The Elder Justice Act is federal legislation which requires the U.S Department of Health and Human Services “to oversee the development and management of federal resources for protecting out seniors from elder abuse.” Additionally, the U.S. Department of Justice is charged with taking action to prevent elder abuse.

The effective coordination of these county, state and federal efforts is of course a work in progress. What we do know about raising awareness of elder abuse and exploitation is that it will lead to more reporting of such abuse. Here is a link to a recent article in the Sacramento Bee which links the raised awareness of such abuse to a dramatic increase in reports to local law enforcement. This is important to bear in mind as the baby boomers begin to become a greater proportion of the cohort affected by elder abuse and exploitation. In my practice, I have unfortunately become familiar with national and international internet scams which relieve elders of their hard-earned retirement money. This is a particular area in which the federal government might play a unique role as so much of our law of the internet is based in federal law.

Another tragic side effect of the victimization of elders, besides the shame, victimization and impoverishment which results from financial exploitation is that these elders, along with elder victims of all types of elder abuse – including physical and sexual abuse – are likely to die much sooner than their peers who were not victimized. But many pieces of this puzzle remain unidentified due to the lack of long term studies which collect valuable statistics about elder abuse of various types! This is of course another aspect of the importance of raising awareness. Because so much of elder abuse still remains unreported, this is a major quality of life challenge not just for elders and their loved ones and community, but also for those of us of “a certain age” who might be looking forward to a safe and meaningful elderhood. How can we make things better for elders at risk now and in the future?

What is elder abuse and who are its primary victims of such elder abuse? By the numbers, they are largely women and the “old” of the elder population – meaning folks over 80. Sadly, the vast majority of the abusers are family members of the elder or trusted friends or advisors. Because most elders live in the community – not in institutions – this is a particular challenge for all of us who are community members to become familiar with the signs so that we can report concerns about safety, suspicious behaviors and the like to local law enforcement.

First – what are the kinds of elder abuse that we’re talking about? Here is a helpful listing from the U.S. government’s Administration on Aging website, which also has many helpful resources:

Physical Abuse—inflicting physical pain or injury on a senior, e.g. slapping, bruising, or restraining by physical or chemical means.
Sexual Abuse—non-consensual sexual contact of any kind.
Neglect—the failure by those responsible to provide food, shelter, health care, or protection for a vulnerable elder.
Exploitation—the illegal taking, misuse, or concealment of funds, property, or assets of a senior for someone else’s benefit.
Emotional Abuse—inflicting mental pain, anguish, or distress on an elder person through verbal or nonverbal acts, e.g. humiliating, intimidating, or threatening.
Abandonment—desertion of a vulnerable elder by anyone who has assumed the responsibility for care or custody of that person.
Self-neglect—characterized as the failure of a person to perform essential, self-care tasks and that such failure threatens his/her own health or safety.

And what about the warning signs of elder abuse which we can be more aware of?

Bruises, pressure marks, broken bones, abrasions, and burns may be an indication of physical abuse, neglect, or mistreatment.
Unexplained withdrawal from normal activities, a sudden change in alertness, and unusual depression may be indicators of emotional abuse.
Bruises around the breasts or genital area can occur from sexual abuse.
Sudden changes in financial situations may be the result of exploitation.
Bedsores, unattended medical needs, poor hygiene, and unusual weight loss are indicators of possible neglect.
Behavior such as belittling, threats, and other uses of power and control by spouses are indicators of verbal or emotional abuse.
Strained or tense relationships, frequent arguments between the caregiver and elderly person are also signs.
Changes in the elder’s personality or behavior, especially if the elder becomes withdrawn or despondent, questions to her or him can be very important in identifying a situation which may be the cause of the elder’s silent suffering.

Lastly, here is another helpful self-help resource specifically for Colorado residents – from Colorado Legal Services. That’s all for now – but don’t forget . . . . Denver’s Senior law Day is coming up on Friday July 29, 2016 and will be held at the Denver Police Protective Association’s Event Center. More details later.

Colorado End-of-Life Options – proposed Colorado legislation

Date February 3, 2016

Posted by Barb Cashman

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Archway at DBG

A bill has recently been introduced in the Colorado legislature that would legalize “aid in dying” or physician assisted death. Last year I wrote a post about a previous version of this bill, then known as the “Death With Dignity” bill. Just the name change to “end of life options“ and its references to “aid in dying” reflect a change toward a more neutral approach to this highly controversial topic.

A group of us on a bar association committee have examined this proposed legislation, solely for the purpose of looking at how it lines up with existing Colorado law. Last year’s bill was based on Oregon law and its terminology contained many anomalies and terms from that state which are not consistent with Colorado law. This new bill contains some changes from its predecessor and I have looked at last year’s bill alongside this year’s bill but the number of changes is not large. Most troubling to some of us is the rather lax standard for witnesses to the request process (set forth in §25-48-104 of the bill) as they are not nearly as stringent as the standards for executing a living will. Sure, there are also emotionally-charged and value-laden subjective terms in the bill, like “in a peaceful manner,” “peaceful death” and “peaceful and humane.” These are some of the troubling aspects of the proposed legislation from my perspective as a Colorado estate and elder law attorney.

Even though I do own a crystal ball, I have yet to get my hands on a decent user’s manual for it. . . ! So, I can’t say what will happen with this latest bill. It may well end up being chucked out once again by the legislature, only to make its way as a ballot initiative, in the same manner that Washington state got its legislation.

California was the most recent state to pass legislation allowing physician assisted death. Governor Brown signed the End of Life Option Act into law on October 5, 2015. You might recall that Brittany Maynard, the young woman who suffered from terminal brain cancer and whose physician assisted death was highly publicized, was a Californian who relocated to Oregon in order to avail herself of that state’s physician assisted death law.

Here’s a link to the Colorado Health Institute’s post about physician assisted death in the wake of Brittany Maynard’s death. In case you’re wondering about the terminology, the Hospice and Palliative Care folks tend to prefer “physician assisted death” while the Compassion & Choices (successor to the Hemlock Society and proponents of the legislation in many states) folks prefer the term “aid in dying.”

Here is an excellent article on the diverse issues presented in the physician assisted death debate. The article covers the historical and cultural context for the aid in dying movement in this country. I also found the observation about minority groups not being as keen on physician assisted death as Anglos (sorry, I still use this term from my college days) very telling. We still must grapple with the historical legacy of our health care system’s treatment of the marginalized. I have blogged about the Tuskegee experiment and I know from experience (having taken some of these calls at my office) that some newer immigrants to this country are keenly aware of their status as outsiders who might be viewed by the medical establishment as being powerless to object to removing a loved one from life support, for the suspected purpose of harvesting valuable organs.

Okay, so what does any of this have to do with the proposed Colorado legislation? Well, plenty. I am not taking a stand here for or against the legislation, but I do have a question that underlies the premise of such legislation. The major base of support for physician assisted death in this country has been along the west coast, the states of Oregon (implemented their law in 1997) and Washington (approved by ballot measure in 2008) are pretty homogenous (mostly Anglo). I don’t think it’s a coincidence that many of the people who state they may wish to avail themselves of physician assisted death are better-than-average educated Anglos. These are people who are used to being “in charge” of their lives, making choices and seemingly charting their own destinies throughout life. These are many of the same folks who struggle mightily with quality of life and independence and autonomy issues as we age and became less independent. This isn’t too far from the death denial and youth glorification I am so fond of writing about. For many of these folks, the right to die is simply an extension of their self-determination in the medical context. I however, do not think it is nearly that simple! Nor do I think the “illusion of control” that so many of us collectively buy into so readily extends readily to complex end of life scenarios.

I can certainly understand concerns about less medical intervention to prolong life, but this is not what we’re talking about here. We are talking about extending a person’s health care self-determination right such that medical technology is used to end a life. I will close with another question – does or should it matter that not many so people will use this legislation to hasten their deaths?

I’m sure I’ll be writing more on this interesting topic, so please stay tuned.

Caregiving Arrangements and Elders: The Next Conversation We Need to Have

Date January 6, 2016

Posted by Barb Cashman

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Youthful Exuberance

Death denial and youth glorification go hand in hand in our culture. Today, I’ll look a bit more at some of the cost of denial in terms of aging and a loss in capacity for the majority of us. I’ll start with some questions . . . How many of us will voluntarily give up our car keys? How many will willingly concede to family or friends that we are having a difficult time managing our daily existence? In my experience, the number is small. It takes a combination of honest self-assessment, a well-developed self-awareness, a special types of candor, or just something catastrophic that “calls the question!” For the former, I think of a cousin’s late father, just a few years older than my father (his cousin). He was a retired physician and at one point detected some cognitive “slippage” which did not seem to be age-related. He got himself to the doctor and shortly after getting his dementia diagnosis, updated his estate plan and moved to another state with his wife to live his remaining years close to one of his children. His children no longer resided in the same state where they were raised.

Many of us would not be willing to make such a drastic change, perhaps because it doesn’t fit in with our idea of how our life in our elder years is “supposed to be” and doesn’t seem to fit with our idea of how we should “be independent” and not be a burden on loved ones. But often the simple denial of the inevitable, along with the lack of planning and of stock-taking, means that we most certainly will be a burden on our loved ones. I have joked with clients about this, that no client has ever informed me that they want to be a burden on their adult children . . . !

Of course there is also the financial piece of the planning. Given the meager state of average retirement savings for many boomers and other elders, along with the hard reality that many retirees are just one health catastrophe away from bankruptcy, some folks take the “why bother?” approach as an excuse to do nothing. Procrastination is, after all, an effective means by which to focus on what really matters – or at least what keeps us busy, which are seldom the same thing!

Okay, enough with the wisecracks. Death denial is only one side of the coin here so to speak, and on the other side is the youth glorification, its own form of denial of encroaching mortality. In our present independence obsessed “aging in place” mantra muttering mainstream, we often fail to see the hidden costs of our independence and the burdens it often places on others.

Yes, I’m thinking of all the family (unpaid) caregivers. The vast majority would not have it any other way most of the time, but the fact is that our longevity is getting longer and less financially certain all the time! Couple that with the shrinking number of women (the ones who have tended to provide these services) who do not work outside the home who are available for such work) and it can cause some genuine concern. More of us, particularly many of the divorced and single baby boomer cohort, will face much more interesting challenges with our often fractured and reconfigured family lives. There is no “standard template” for a blended family relationship.

While I’m thinking of it, here’s a link to a recent US News & World Report article about family caregiving and how its future is changing.

Another aspect of the youth glorification beyond the self-loathing some elders feel is the denigration of the aged, the ideas that elders are no longer worthy because of their diminished capacity, usefulness or social or economic relevance. This is when being an elder becomes a human rights issue! Yes, I’ve blogged about the human rights of elder previously, but this is an evolving field. I’ve recently learned about an organization called The Global Alliance for the Rights of Older People. This organization is comprised of several international organizations as well as nongovernmental organizations (NGOs) who work together to raise awareness of the threats and challenges elders face in different parts of the world and supports the creation of international human rights instruments as tools to strengthen the rights of older people.

So I will close with an observation which I believe is illustrated by a Carl Sandburg poem featured below. Is it really too difficult to filter through the noise and the modern day disease of incessant busy-ness to talk about this? What if we could consider the present importance of our relationships which sustain us in a long term “what if” scenario that went beyond the planning for our inevitable demise? Would that change the way we are living right now? I think it would. I also think quieting the mind and considering the stillness is one means of opening the door to welcome those questions for contemplation and consideration.

The Answer, by Carl Sandburg

You have spoken the answer.
A child searches far sometimes
Into the red dust
On a dark rose leaf
And so you have gone far
For the answer is:
Silence.

In the republic
Of the winking stars
and spent cataclysms
Sure we are it is off there the answer is hidden and folded over,
Sleeping in the sun, careless whether it is Sunday or any other day

of the week,

Knowing silence will bring all one way or another.

Have we not seen
Purple of the pansy
out of the mulch
and mold
crawl
into a dusk
of velvet?
blur of yellow?
Almost we thought from nowhere but it was the silence,
the future,
working.

The Grail Question Continued – What Ails Thee?

Date September 2, 2015

Posted by Barb Cashman

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A Garden Near Assisi

[Note – this post was published on August 19, but it didn’t make it into my migration to a new server. . . ]

This post is a continuation of my previous post about elder and probate mediation and obstacle identification. The first grail question I examined was “what ails thee?” and it is one which I would like to explore in depth a bit more in this post. What I am looking at in particular in this post is the larger function of seeing that is implied in the question above. What is it that we can see about another, understand about the other’s situation from seeing them and encountering them in a question such as this?

The question is simple and seemingly straightforward, but it certainly goes beyond the obvious and the superficial – but that begs the question. What is seeing, what is our ability to use our eyes, our sightedness, to encounter another person – especially one in distress? Sometimes, in this culture that distrusts anything that can’t be readily explained or measured or understood at some level, we mistake the act of using our eyes for the ability to see. What I mean by using our eyes is the sensory act of using our eyes, as sensory inputs to inform our understanding of the world. What often happens, on the “did you see that?” transactional level of human communication is the confusion of our visual sense of seeing for its sensory utility for its own sake, as if the sense was something generic, that anyone with eyes could see in the same manner. If this sounds farfetched, I will use the example of biomechanics, a popular idea of how the human “machine” works. Certainly, if we are all machines then our standard issue equipment functions in similar ways, right? Well, I’m afraid this is the dead end of the reductionists, and I’ve never been tempted to travel down that path.

So this sense of seeing, or rather more appropriately – the use of the eyes for navigating our environment, often amounts to an act of seeing which serves only to separate us from each other and our world. This is the seeing described above, that which is focused on the material, visible and the “objective” if you will. This is what is normally understood as the typical and usual way of seeing in our everyday world. But this is not so for all of us. There are other ways of seeing in addition to or beyond the use of the eyes.

Here I think of the late teacher, author and a leader of the French Resistance, Jacques Lusseyran and I thank Mark Patrick for telling me about his autobiography, And There Was Light. Lusseyran was left without sight in either of his eyes as the result of an accident at school. His autobiography tells the story of his work as a leader of the resistance in Paris, sought out because he was blind, as well as his time spent at Buchenwald. For my purposes here, in the context of the first grail question, I am looking at his posthumously published work Against the Pollution of the I (2006: Morning Light Press). In the chapter entitled “The Blind in Society” he writes: “Blindness has shown me a space other than the physical one, which only serves to separate me from them and them from me. This is the space where the stirrings of the soul and the spirit come into being . . . Thanks to blindness I learned to read many signs that came to me from others, and that usually escape the notice of the seeing.” Against the Pollution of the I, at 46-47. I find this observation most refreshing in the way it challenges the superficial nature of seeing things and mistaking them for what they appear to be on the surface. It also leads to a conclusion that many of us “sighted” persons are lazy in that we are accustomed to relying on our sight to inform us of certain things in a certain manner and we mistake this surface reality for “all there is.”

Lusseyran’s questioning of the conventional utility of the sense of sight goes further. In another chapter entitled “Blindness, A New Seeing of the World,” he refers to sight as a very useful tool and those who are deprived of it as suffering a heavy loss. But he looks at the senses in a holistic and integrating way, noting that the loss of one sense can allow for the development of another. Than he makes another observation: “But now we are faced with a great difficulty, for seeing is a superficial sense.” Id. At 54. He astutely observes that while the eyes can help us immensely, we should not mistake the tool of seeing with the eyes for its utility alone. He goes so far as to state that without a willingness to go beyond the superficiality of sight, the seeing beneath or beyond the outer surface, no true cognition is possible because we are locked into insisting that the tool itself is the purpose of sight. The beautiful metaphor he uses to illustrate this inadequacy of limiting sight and seeing to the act of visual collection of information is the act of naming, knowing and thereby seemingly knowing the unknowable because . . . we have seen it. He identifies this rightly as idol worship. Id. At 59.

What is our sight, our willingness to see another? What is our ability to know another person for? It strikes me that a function of seeing must be, as Lusseyran observes, the ability to clear away the noise, debris and clutter from our minds so that we can truly think about who we see and what they mean to us. “What ails thee?” can be a mirror for our own suffering and inadequacy to see ourselves reflected in another person.

There is more to us than our visible exterior, our “clay.” The late John O’Donohue has written beautiful poetry which speaks about our clay. Another writer has observed this about our clay:

. . . we are shaped and molded by what we once were and what we will become. As the ultimate spiritual treasure, the spark of knowledge that inspired human faith becomes an internalized knowledge that will erase temporal history and return us intact to the primordial self.

John Herlihy, “Profile of Unfinished Man” in Psychology and the Perennial Philosophy, at 122, Samuel B. Sotillos, ed. (2013: World Wisdom).

This examination of what constitutes “seeing” in the context of the first grail question just might be followed by a similar pondering of the second question. . . .

©Barbara Cashman 2015 www.DenverElderLaw.org

Jefferson County Senior Law Day – Saturday June 13, 2015

Date June 10, 2015

Posted by Barb Cashman

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Italian Arch

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

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

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

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

©Barbara Cashman 2015 www.DenverElderLaw.org

The Importance of Solo and Small Firm Attorney Disability and Estate Planning- part 2

Date January 28, 2015

Posted by Barb Cashman

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At the Denver Tea Room

This is part two of the previous post about some of the obstacles as well as rewards of solo and small firm lawyers getting their disability and death plans in place. In the first part I mentioned I was posting this due to my participation in the American Bankruptcy Institute’s Rocky Mountain regional conference. Next month I will be putting on a similar program for the Aurora Bar Association.

Let’s dive in with (a review of) Kipling’s serving men –

I keep six honest serving-men

(They taught me all I knew);

Their names are What and Why and When

And How and Where and Who.

. . .

The Elephant’s Child, by Rudyard Kipling.

We’ll begin where we left off, with the fourth serving man. . . .

Here’s the fourth man, HOW . . .

Well, you can always start with a simple plan, which involves another person (the sixth man is “who”). It’s best to start with a person in mind to help you (known in the appendix as the “assisting attorney”) because it’s often easier to get going with this plan if there are two of you who are holding each others’ feet to the fire, so to speak. If you can’t think of another attorney with whom you can get started, try a request on the BR listserv or ask on the SSF listserv.

Don’t let the fear of confidentiality and conflicts (as in the CRPC variety) stop you in your tracks. Any arrangement to manage or take over the lawyer’s practice must include appropriate protections for client confidentiality. The assisting lawyer taking over must beware of conflicts and must safeguard confidential information. The assisting lawyer should be introduced to or familiar with office staff. Staff or family members of an affected lawyer need to know how to contact the assisting lawyer in the event of disability or death. They need to know where any agreements, powers of attorney, or other planning documents are located. Family members and the PRs should be advised of the arrangements so they know of their existence and any important provisions. Instruction letters could prove invaluable and of course an office procedure manual would be ideal to help locate and decode the affected lawyer’s system.

A more advanced plan and even the super deluxe plan aren’t rocket science as such (unless you have an engineering background). Lloyd Cohen’s ABA book Being Prepared is very useful in this regard AND it’s available from the CBA’s lending library.

Enter Kipling’s fifth, WHERE.

This one is up to you! Meet somewhere with your law partner, a trusted colleague, a family member or office staff at a place and time where you can get started on the difficult conversation that leads to . . . the documents. The documents need to be kept in a safe place where your assisting attorney can have access to the documents in the event they must be used or held by a third person like an escrow holder. At a minimum you will need an easily understood and complete filing system with access by someone who has some familiarity with the system.

And last but not least, there is WHO.

This can be a very challenging detail – on whom can you rely for this type of assistance? Will it be asking too much of the person? These are not easy questions to answer, but many of us deal with these questions regularly in representing our clients. The arrangement you make with the assisting attorney should establish the scope of the assisting attorney’s duty. Will the assisting attorney be the personal attorney for the deceased or incapacitated lawyer? This can be an important distinction. If the assisting attorney personally represents the deceased or incapacitated lawyer, in the event he or she discovered malpractice or ethical violations in any matters, the assisting attorney would not be able to inform the clients and also the assisting attorney could not represent the clients. If it is intended that the assisting attorney take over representation, then he or she would not be the personal counsel for the deceased or incapacitated attorney and must obtain each client’s consent to representation.

The compensation of the assisting attorney should be addressed, as should the matter of staff support to assist the assisting attorney in performing his or her duties and arrangements to pay for these services. If you are looking for more inspiration about the intersection of (1) what to avoid by planning and (2) how a community of lawyers came together to help one of its own, read this 2013 article from the ABA Journal.

Okay, we’re finished with Kipling’s serving men, and I hope they have helped demonstrate how simple this process can be (note: I did not say it was easy). Just in case you need a little extra ethics ammo to get you motivated, take a look at the American Bar Association Standing Committee on Ethics and Professional Responsibility Formal Opinion 92-369, December 7, 1992, Disposition of Deceased Sole Practitioners’ Client Files and Property, which provides:

To fulfill the obligation to protect clients’ files and property, a lawyer should prepare a future plan providing for the maintenance and protection of those client interests in the event of the lawyer’s death. Such a plan should, at a minimum, include the designation of another lawyer who would have the authority to review client files and make determinations as to which files need immediate attention, and who should notify the clients of their lawyer’s death.

Many state bars require such plans of solos (our neighbor Wyoming, for example). Colorado does not – let’s not give OARC a reason to require this of us – plan now! If you are looking for more ideas by way of checklists, LDPOAs, casualty letters, and other documents associated with this planning, and you are a solo attorney and have a question about my forms, get in touch!

©Barbara Cashman 2015 www.DenverElderLaw.org

Denial of Aging and Death as Source of Conflict

Date October 8, 2014

Posted by Barb Cashman

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Centranthus or Jupiter’s Beard

Autumn here in the Denver metropolitan area is beautiful. Some of our trees’ leaves have started turning while others have not. The apple tree in my backyard is producing many fine apples, which I am happy to eat. Her leaves are just starting to curl a bit. The late tomato harvest is petering out as the nights get colder. In between the two posts on the “time out of mind” theme I wanted to write about conflict and denial. I haven’t written about this in a while and since October is Conflict Resolution Month, I thought the time was right! I like the language from the Colorado Senate’s Joint Resolution (13-017) on this topic:

WHEREAS, These conflict resolution processes [mediation, arbitration, facilitation, etc.] empower individuals, families, communities, organizations, and businesses to foster communication and devise solutions that are acceptable and responsive to the needs and interests of all parties involved; and

WHEREAS, Conflict resolution is taught and practiced by citizens in many school systems, universities, and graduate programs throughout Colorado and the world as a way of solving disputes; and

WHEREAS, Community-based programs work to strengthen local relationships by fairly and equitably resolving neighborhood and community conflicts and opening community dialogues based in reason and mutual respect;

So you might be wondering what conflict resolution month has to do with fall, the inevitable changes in our lives and. . . . denial? Each of us deals with change and resulting conflict differently and our “conflict style” is often a pattern of responses of types of behaviors that we use in conflict-laden situations. We often hone these skills in our family or sibling relationships. How we manage our concern about conflict and how much we look at it a particular conflict as a “mine, yours or ours” type of situation greatly informs our response and participation in managing and resolving a conflict. This is particularly so in the elder law context, in which there is often a challenge (usually a constellation of them) and difficulties presented when an elder begins to slow down or fail physically or mentally. How family members and loved ones respond to those changes has a huge impact on an elder’s well-being.

The contemporary view of conflict styles lists five basic styles:

Avoidance (a/k/a denial)

Accommodation

Compromise

Competition

Collaboration

If you have already observed that these styles are a bit of a continuum, you are astute. The most active and engaged styles are the last two – competition and collaboration, while the least engaged are the first two – avoidance and accommodation. The whole idea of Conflict Resolution Month is to get people to think outside their comfort zone as it relates to conflict resolution, to educate people about the array of alternatives available to assist. This can begin early – for several years I volunteered with The Conflict Center’s Peace Day programs in area elementary schools. Many of us don’t otherwise learn these useful skills or get to see this modeled in our daily lives, let alone practice them with our peers.

In the interest of brevity, I will finish this post with a poem from a poet friend in New York who was a participant with me at a retreat last month. Sometimes the most important thing about “owning” a conflict is to recognize how our lives would look without the existence of conflict. This is often very difficult to consider – especially in the context of family relationships, sibling rivalries and unbalanced power dynamics. This poem I just received from Richard, entitled “Yellow Birds” is about birds, space and the beautiful world we share. So please read on.

Yellow birds, flocked to the earth,

fluttering to light, leaving to the air

her emptiness, as wind gives you leave

to land, brothers and sisters singing,

to the great green reception,

your welcome home.

Great space brings such joy, the

opening of the thick and heavy, the

beauty whose richness obscured, now

cleared—outbreath of the inbreath—to

breathe in without restriction, with

the freedom of the letting go.

So our angel unfurls her wings,

exultant in the wild air, beating as

breathing, lifting into the morning light—

soaring as walking, wide and wild, our

arms swinging, above and below

joined, one body beloved.

So I pick my way through the

Garden paths, past empty vines, under

the frosted purple grapes, hearing the

hawk’s cry, seeing his wings soar,

knowing as my feet trod every color’s

leaves, here I am in heaven.

By Richard Wehrman (with gracious permission from the author)

That’s all for now. . . enjoy the fall, the ripening of grapes and the stillness it all can bring.

Elder Law Ethics or “Why Am I Left Sitting in the Waiting Room?”

Date June 19, 2013

Posted by Barb Cashman

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I am openly borrowing from the title of an American Bar Association pamphlet “Why Am I Left in the Waiting Room?: Understanding the Four C’s of Elder Law Ethics.” You can read the pamphlet here. Estate planning is a law practice area that has historically had joint representation as a feature. This is typical where a married couple, partners in a civil union, or committed partners, do their estate planning together. Most lawyers have a written fee agreement for this and for a husband and wife the agreement often contains a joint representation waiver which gives both clients the opportunity to consent to one attorney representing them (this typically makes the most sense from a planning and financial perspective) after the attorney advises them of the unique nature of joint representation.

Elder law practice often encompasses the more traditional estate planning services but there can be nuances to the attorney-client relationship when an adult child brings an elder to an attorney’s office. It is not uncommon for an adult child to find and “vet” an attorney on behalf of the parent. Sometimes the adult child may wish to pay for the legal services. Often the adult child has been very involved in the parent’s day-to-day life, but the nature of the attorney-client relationship has boundaries. The pamphlet referenced above goes over the “four C’s” which an informed client ought to consider, and with which the attorney is assumed to be familiar. The attorney, after all, is the license holder who is bound to uphold the Colorado Rules of Professional Conduct.

So – what are the “four C’s?”

Client Identification: attorneys must communicate and make clear to the client(s) who is the client, and oftentimes – who is not the client. Even if the elder is not footing the bill for the consultation, the elder is the attorney’s client.
Conflicts of Interest: lawyers have an ethical duty to avoid conflicts of interest – these can crop up whenever an attorney represents more than one person. When an attorney represents several people with joint or mutual interests, the lawyer is bound to identify potential conflicts of interest and determine whether joint representation is appropriate or allowed. This can be particularly problematic in an elder law context where one attorney talks with an elder parent and an adult child and it is not clear who the client is – this is why #1 above is #1! Identifying the client means identifying the person to whom the lawyer owes all applicable duties.
Confidentiality: A hallmark of the attorney-client relationship is communication and lawyers must keep confidential the communication between clients and lawyers confidential. By way of example, it means that if I represent an elder parent and draft a durable power of attorney for them and they want me to be able to talk to their adult child agent about how to use the POA if the need for using it arises, I need to get specific authorization from them to talk with the adult child agent – because the elder parent is my client and I owe a duty of confidentiality to my client.
Capacity: the ABA pamphlet refers to this as “competency” but I find the term “capacity” more appropriate. Sometimes an adult child will inquire about getting a will drawn up for their parent who is in failing health. Some folks think that a lawyer can simply take instructions from another person about what the elder wants in their will and present and then present such a document for signature by the elder. This is not appropriate on many levels. Lawyers are duty bound to get informed consent from their client – on whose behalf the document is prepared – for a particular course of action. This means educating the client about the range of alternatives to choose from and then allowing the client to make their own choice among the alternatives. This can be challenging in the elder law field – particularly when a client may be hard of hearing, vision impaired, or experiencing temporary or ongoing cognitive decline. The lawyer must determine (as with any type of client) whether a client has the capacity to enter into an attorney-client relationship.

The bottom line for elder law attorneys is that we don’t want our clients’ wishes and choices made to be subject to scrutiny and undoing at a later date because the lines of 1, 2, 3 and 4 above were blurred! If you bring your mom or dad or Aunt Ethel into my office, rest assured that I will talk to you as well – but I will have you spend some time outside in my waiting area. Don’t worry, there are good magazines to read.