Colorado End of Life Options Act – A Vocabulary Lesson

A Threshold

I’m gearing up for a continuing legal education program where I’ll be presenting on this new Colorado statute [EoLOA for short, even if it sounds more like Hawaiian], so I’m now writing part of my materials.  I thought I’d start with the basics in this post by looking first at how terms are defined (or not defined) in the statute as well as the parameters of the “right to request” life ending drugs.  I will list the entire definitional section here, but due to space constraints, will focus only on a couple salient terms in this post.

Here’s an overview of some of the key terms in the statute’s definitional section, 25-48-102:

  1. Adult means an individual who is 18 years of age or older;
  2. “Attending physician” means a physician who has primary responsibility for the care of a terminally ill individual and the treatment of the individual’s terminal illness.
  3. “Consulting physician” means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding a terminally ill individual’s illness.
  4. “Health care provider” or “provider” means a person who is licensed, certified, registered, or otherwise authorized or permitted by law to administer health care or dispense medication in the ordinary course of business or practice of a profession. The term includes a health care facility, including long-term care facility as defined in section 25-3-103.7(1) (f.3) and a continuing care retirement community as described in section 5-6-203 (l)(c)(I), C.R.S.
  5. “Informed decision” means a decision that is:
  • (a)Made by an individual to obtain a prescription for medical aid-in- dying medication that the qualified individual may decide to self- administer to end his or her life in a peaceful manner;
  • (b)Based on an understanding and acknowledgment of the relevant facts; and
  • (c)Made after the attending physician fully informs the individual of;
  • (I) His or her medical diagnosis and prognosis of six months or less;
  • (II)  The potential risks associated with taking the medical aid-in- dying medication to be prescribed;
  • (III) The probable result of taking the medical aid-in-dying medication to be prescribed;
  • (IV) The choices available to an individual that demonstrate his or her self-determination and intent to end his or her life in a peaceful manner, including the ability to choose whether to:
    • (A)Request medical aid in dying;
    • (B) Obtain a prescription for medical aid-in-dying medication to end his or her life;
    • (C) Fill the prescription and possess medical aid-in-dying medication to end his or her life; and
    • (D) Ultimately self-administer the medical aid-in-dying medication to bring about a peaceful death; and
  • (V) All feasible alternatives or additional treatment opportunities, including comfort care, palliative care, hospice care, and pain control.
  •  (6) “Licensed mental health professional” means a psychiatrist licensed under article 36 of title 12, C.R.S., or a psychologist licensed under part 3 of article 43 of title 12, C.R.S.
  • (7)“Medical aid in dying” means the medical practice of a physician prescribing medical aid-in-dying medication to a qualified individual that the individual may choose to self-administer to bring about a peaceful death.
  • (8) “Medical aid-in-dying medication” means medication prescribed by a physician pursuant to this article to provide medical aid in dying to a qualified individual.
  • (9) “Medically confirmed” means that a consulting physician who has examined the terminally ill individual and the terminally ill individual’s relevant medical records has confirmed the medical opinion of the attending physician.
  • (10) “Mental capacity” or “mentally capable” means that in the opinion of an individual’s attending physician, consulting physician, psychiatrist or psychologist, the individual has the ability to make and communicate an informed decision to health care providers.
  • (11) “Physician” means a doctor of medicine or osteopathy licensed to practice medicine by the Colorado medical board.
  • (12) “Prognosis of six months or less” means a prognosis resulting from a terminal illness that the illness will, within reasonable medical judgment, result in death within six months and which has been medically confirmed.
  • (13) “Qualified individual” means a terminally ill adult with a prognosis of six months or less, who has mental capacity, has made an informed decision, is a resident of the state, and has satisfied the requirements of this article in order to obtain a prescription for medical aid-in-dying medication to end his or her life in a peaceful manner.
  • (14) “Resident” means an individual who is able to demonstrate residency in Colorado by providing any of the following documentation to his or her attending physician:
    • (a)A Colorado driver’s license or identification card pursuant to article 2 of title 42, C.R.S.;
    • (b)A Colorado voter registration card or other documentation showing the individual is registered to vote in Colorado;
    • (c)Evidence that the individual owns or leases property in Colorado; or
    • (d)A Colorado income tax return for the most recent tax year.
    • (15)“Self-administer” means a qualified individual’s affirmative, conscious, and physical act of administering the medical aid-in-dying medication to himself or herself to bring about his or her own death.
    • (16) “Terminal illness” means an incurable and irreversible illness that will, within reasonable medical judgment, result in death.

So here goes . . . this law is only for adults! There is no provision for minors as is allowed in some European countries, like Belgium.  Next, you’ll note that the physicians (they must be licensed M.D. or D.O., no N.P. or P.A. allowed) have a huge amount of responsibility.  Remember that the gist of this law is to remove the threat of criminal prosecution for assisting a person to die by prescribing life-ending drugs under certain proscribed circumstances, so this focus on the doctors is wholly appropriate.

The two basic types of physicians are the attending and the consulting.  The attending physician is the one who has primary responsibility for the care of the terminally ill individual.  We are familiar with the phenomenon of the “pot shop” doctor here in Colorado . . .  well this provision is designed to ensure that the attending is not someone who simply provides the scrip for the life-ending medication or “medical aid in dying” [hereafter MAID] as the statute calls it.

The attending physician must “fully inform” the individual of the diagnosis, prognosis of six months or less; as well as the choice (see (5) (c) above) and consequences of requesting MAID as well as the alternatives including additional treatment, palliative care and hospice care.  Unfortunately for us, the terminology used in (5) is “informed decision,” which is a term foreign to Colorado law.  In the statute it is tied to “mentally capable” in (10), which includes the ability to make and communicate an informed decision to health care providers.  The Colorado term which is familiar to me is from the Colorado Medical Treatment Decision Act, at C.R.S. §15-8.7-102(7), which defines “decisional capacity” as the ability to provide informed consent to or refusal of medical treatment.  A similar definition is found in the health care POA statute, at C.R.S. §15-14-505(4).  The preceding section of that statute also states (at §15-14-504(4):

Nothing in this part 5 shall be construed as condoning, authorizing, or approving euthanasia or mercy killing. In addition, the general assembly does not intend that this part 5 be construed as permitting any affirmative or deliberate act to end a person’s life, except to permit natural death as provided by this part 5.  

Interesting, huh? While reviewing inconsistencies between these terms describing capacity is something attorneys might get excited about, it appears unlikely to provide difficulties for the physicians involved.   I will discuss the “mentally capable” determination a bit more in a later post that looks at mental health concerns.  Likewise, the duties and responsibilities of the attending physician are numerous and I will continue the discussion of what the statute describes in a later post.

I will conclude this first post about statutory language with an observation.  Death as described in the EoLOA is defanged, now a technical medical procedure, even a treatment if you will, for perceived intractable suffering.  The option to seek out MAID to end suffering involved with a terminal illness has little to do with the physical pain incident to illness (statistics from Oregon bear this out) and more with the loss of dignity and quality of life, presumably incident to the progression of the disease.  Why should an elder law attorney like me be concerned about this? Because in our culture, much of the experience of aging is focused on losses and precious little attention is directed toward gratitude for our continued life, such as it may be!

The other matter that concerns me greatly in the “technocratizing” of dying and actively choosing death is that we surrender even more power to our doctors.  This has little to do with our perception of how medical technology is used to extend life, but rather is concerned with our thinking about the nature of life, including disease, dying and death.  Our doctors cannot protect us from suffering – they are only doctors after all, but they can help manage treatment of pain.

More “vocabulary terms” next week.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

 

 

A Brief History of Death

Living and Dying at the Same Time

Can you discern in this picture what is alive and what is dead?

Death, the inevitable.  Death, the rejected.  Do we feel sorry for death? No! Of course not.  Is it separate from our lives or merely a natural part of them? What parts of our lives are we more comfortable with or at ease with and how do these factor into our relationship with death?

Whoa Barb . . . relationship with death, relationship to death.  What is it that holds us to our life and, inevitably, leads us to our death?  What is the meaning of this relationship? Well, I can only think that this kind of question is what poetry was meant for. . .  so I turn to the Trinidadian poet Derek Walcott’s poem Love After Love:

The time will come when, with elation,

you will greet yourself arriving

at your own door, in your own mirror,

and each will smile at the other’s welcome,

and say, sit here. Eat.

 

You will love again the stranger who was your self.

Give wine. Give bread. Give back your heart

to itself, to the stranger who has loved you

 

all your life, whom you ignored

for another, who knows you by heart.

Take down the love letters from the bookshelf,

 

the photographs, the desperate notes,

peel your own image from the mirror.

Sit. Feast on your life.

Here is the poem read aloud (by Jon Kabat-Zinn)

When I started to put together this post, I thought I’d try a google search of my title, which tends to bring up something fascinating.  Sure enough, there was another reminder about my lapsed New Yorker subscription . . . a post dated 11/6/16 by Nir Baram.  The New Yorker has such insidious ways of luring subscribers back again and again!  But I will remain undeterred.

So what might I say for this kind of post – brief, about something as impersonal and ultimately personal as death?  I might describe the denouncing, distancing, the walking or running away from, that so many of us steadily manage over the years of our lives.  But what happens when we realize that the distancing has only been in the shape of a giant and fascinatingly graceful circle, or perhaps a woven pattern or a circuitous route ala Jackson Pollock?  Can we even recognize it as our own, part of our heritage as mortal beings?

How is it (I asked my engineer friend this last night) that we can gauge or measure someone or some thing’s age?  Its beginning and its end?  I certainly see the need for practical purposes to come up with such boundaries.   But we tend to observe them without any questions at all.   And the location of that separation as well as its origins, well that’s another matter.  We might arrive at a place where or a time when we might question those boundaries.  Whose death is it? Who dies?  Stephen Levine’s book explores this well.

My post today is perhaps a window dressing of sorts for some writing I will be doing about the Colorado End of Life Options Act.  I will be interrogating some of the ideas, beliefs, thoughts, expectations and so forth about dying and death (particularly euthanasia) in some future posts.  I’ll close with a quote from a favorite poet, E.E. Cummings:

Unbeing dead isn’t being alive.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Yours, Mine, Ours and Theirs Part 2: Opening the Conversation

Spring Flowers

Spring Flowers

This article from last June in The Huffington Post cites a Pew Research Center number from 2011 which states that a whopping 42% of American adults have a step relationship – as in step-parent, step- or half-sibling, or step-child.  I suspect the numbers have risen since that study….

It is not surprising that with the large number of remarriages involving children from a prior relationship, some of the basic priorities in estate planning can be much more fluid and complex.  In the title of this series I have added “theirs” at the end of “yours, mine and ours” – and this is for the simple reason that, in my experience, many spouses in a blended family relationship wish to preserve for their own descendants a certain portion of their estate.  In my experience with blended family estate planning, many spouses in blended family later life relationships consider their children’s inheritance as something separate in a way that few people married only to each other and with common children have ever done.  So let’s begin with identifying some of the terrain we will cover.

The Questions. . . .

What are the common goals that both spouses have in mind?

First off is the obvious question – how to provide for your adult children while taking care of your surviving spouse?  Considering things like life insurance, retirement benefits and other available resources can be immensely helpful, particularly when these resources are coordinated in such a way as to meet the common identified goals.  Since I represent primarily older adults with grown children, I won’t be looking at the second family and providing for them along with a spouse as well as from a first marriage?  How do we balance providing for children with providing for the surviving spouse?  Well, I must repeat that lawyer mantra here: it depends.  The fact is – there is no template for the values, choices, or goals of spouses in a blended family and how they provide for their respective children.  Yes, life is getting more complicated all the time it seems, but I would submit that with the exploration of some basic information, many otherwise inevitable conflicts can be avoided or at least minimized!  This is why it is so important to identify these questions that can loom large and cause much anxiety.

The Nature of Potential Conflict . . .

When a couple can identify the goals and values of their planning, developing a strategy for meeting them can become a bit simpler (note – I did not say easy – there is a huge difference between simple and easy!).  Identifying the source of conflict that can arise, which can threaten those values and goas the couple has identified, is a simple but powerful way of bringing more daylight into the conversation.  Talking about personality conflicts, communication styles and how to allocate scarce resources – be they common or separate resources, can have a positive impact on the planning process.  If this all sounds like a bit too much, I would submit that this groundwork laying is imperative and indeed makes for going early on in the process.  Perhaps you are familiar with the expression to go slow at the beginning to go fast later.  Reminds me of a favorite Ella Fitzgerald song!

The Varying Styles of Conflict Among People . . .

Important to consider here are some of the stumbling blocks that many of us place in front of this conversation, as well as those which may arise and otherwise derail a constructive and wanted conversation on this topic.  What I am talking about here is how each of us deals with conflict in terms of how we communicate in the midst of conflict.  There are five basic conflict communication styles:

  • Confrontation
  • Accommodation
  • Compromise
  • Conciliation
  • Avoidance

Many of us do not exclusively rely on a single style here, and that is a good thing!  What the conflict styles can teach us – and how this conversation can enrich and deepen a relationship among spouses – is about values (the first item I wrote about above) and how they shape who we are and how we behave.   Our perceptions and assumptions about who we are, who our spouse is and how the children of the blended family are included in the planning (either directly or indirectly) can be valuable ways to explore the depth of a relationship and chart a course through otherwise troubled waters.

I’m not saying that a plan is going to be 100% foolproof – I would not say that because everything is subject to change.  What I’m saying is that it is better to talk about the elephant in the room, to identify its function for shedding light on our goals and values of the spousal and family relationships we have.

More to come!

© 2016 Barbara Cashman  www.DenverElderLaw.org

Aging, Language and Autopoiesis

Cute Halloween Picture

Cute Halloween Picture

 

I was thinking about elderhood and language, how we think of aging and the words we give it and the life that is continually created as we age and those around us age.  By using the term language, I mean both the structure or system of language as well as the content and substance of the communication,   as well as a means of conveying content and substance.  Of course I should define that last term, autopoiesis – It’s not a commonly used word after all:

the property of a living system (such as a bacterial cell or a multicellular organism) that allows it to maintain and renew itself by regulating its composition and conserving its boundaries. The notion of autopoiesis is at the core of a shift in perspective about biological phenomena: it expresses that the mechanisms of self-production are the key to understand both the diversity and the uniqueness of the living. — Francisco J. Varela, in Self-Organizing Systems: An Interdisciplinary Approach, 1981

From Merriam Webster online.

In essence, autopoiesis is what makes aging and elderhood possible – not just from a biological standpoint (Francisco Varela started there but took the notion well beyond it), but also from a perspective of presence in the world, of consciousness.  The “production” of our living with autopoiesis  is the ever present process of life here – of creation and destruction, unity and dissolution, death and birth, and of change.  I think of a quote from Heraclitus: The sun is new each day.  Contrast that with the oft-quoted: There is nothing new under the sun.  The latter is from the book of Ecclesiastes.  They seem to be polar opposite in expression, but of course they are not if we look at what they describe as a process of change that is endless.

So back to autopoiesis – our growth, our production of our presence depends in no small part on the absence of something, the clearing away through disappearance and decay.  That may be the source of our longing, our searching for that which we lack, which is what keeps many of us moving in this world.  That seeking can be uncomfortable and cause us to feel lonely.  Rabbi Abraham Heschel observed in his book God in Search of Man:

Day after day a question goes up desperately in our minds: are we alone in the wilderness of the self, alone in the silent universe, of which we are a part, and in which we feel at the same time like strangers?  It is such a situation that makes us ready to search for a voice of God.

So that sense of missing something, our aloneness, the absence required by the autopoiesis is something that seems to haunt us!  (Hence the Halloween theme, I suppose!) We often insist that we be able to identify, name, classify and therefore predict this system of life, which includes our own on a cellular level as well as the system of life on our planet and presumably beyond.  But this predicting from our familiarity with the system is inherently unpredictable.  This autopoiesis has, as Bruce Clarke has noted, “a multifarious cultural history, itinerant discursive career and contrarian stance,” thus making it applicable to the context here. . . .

We may experience autopoiesis and not really be cognizant of it in any meaningful way, and this is perhaps one of the ways in which we fail to see the connections between us, as people, as living beings in a larger biological system or environment.  Do we see this aliveness beyond ourselves or do we dismiss or limit it, denying it because it is beyond us, beyond some boundary of who we think we are in terms of our experience or thinking process.

Okay, you might be wondering where I’m going with this autopoiesis notion and aging – but it is clear to me that the ability to recollect, to reflect on one’s life experiences and to create and recreate meaning, is an immensely important function of elderhood.  This is what is known as gerotranscendence, the empirically based theory of psychology which suggests that aging, elderhood, offers a generative aspect of creating new meaning and purpose in life as we age.  It is nothing new under the sun but rather a “re-enchantment with aging,” a huge step in our death-denying, youth obsessed culture.  I’ll finish this post next time, so please stay tuned.

©Barbara Cashman  2015   www.DenverElderLaw.org

Did You Know October is Conflict Resolution Month?

Cloud Above Santa Maria degli Angeli

Cloud Above Santa Maria degli Angeli, Assisi

 

Yes, this is an excuse for a post about elder and probate mediation. . . !  On Monday I gave a presentation to a Parkinson’s support group in Arvada.  One of the major points I raise about disability planning (like health care powers of attorney, advance directives – a/k/a living wills – and general durable powers of attorney) is its value in the minimization of conflict.  Conflict is a normal part of human existence and it is inevitable, but how we choose to deal with conflict, both individually and in a group like a family – can be complicated and sometimes destructive, particularly when a loved one faces a health crisis and we are left feeling powerless.

End-of-life care decisions are usually difficult under the best of circumstances, so when there is disagreement between a spouse, adult children or other family members, this can be a source of major problems which adds to the stress of the caregivers and the encroaching grief from the advance of the disease process.

Late stage care, like hospice and palliative care, can often provide turning points in the care of a person when family members may start to better come to grips with their loved one’s impending demise.  This is not often the case however.  Sometimes with neurodegenerative diseases such as Alzheimer’s or other forms of dementia, ALS or Parkinson’s, there is a steady and inevitable decline, but this can also be unpredictable and sudden.   Here’s a link to the National Institutes of Health’s National Institute of Neurological Disorders and Stroke, which has an exhaustive list of many different types of neurological disorders.

We need support groups for raising awareness about these diseases and also because these groups can provide resources and mutual support for family caregivers.  As I told the group I addressed today, one of the highlights of practicing law in this field is that I get to see and also help facilitate people taking care of their family members, providing them with love and care during times when that is what is needed.  One of the reasons we need support groups is that we have never had so many people living with these diseases.  While it may seem that these diseases might well be a side effect of our unprecedented longevity – here in the US as well as in many parts of the globe – it remains a mystery why these diseases are affecting larger numbers of people, particularly as there are more of us aging.

There are productive alternatives to court proceedings that can be considered when an elder’s decision to continue to drive is no longer a safe choice, or where a parent’s health care agent is perceived by siblings to be suffering from “compassion fatigue,” or when disagreements about the type of appropriate caregiving have overtaken the family members’ ability to effectively communicate regarding the elder’s care.  This is where elder mediation can be particularly helpful.

It might be useful at this point to distinguish elder law from elder mediation.  The practice area of elder law is defined by the legal problems of the elderly (which practically makes it a broad general practice area, which is why many of us focus on particular aspects of it) and the “consumer demands” of the elder population.  Elder mediation, in contrast, often struggles to include the voice of the elder and to respect the dignity of their choices and preferences in circumstances of intense conflict which can often involve encroaching disability or increased frailty, slipping cognitive skills, other health challenges.  Here’s a link to a recent article in Bifocal, a journal published by the ABA Commission on Law and Aging, which features research on the topic of health care decision-making authority.

The providing of care and sharing of care for an elder who has a neurodegenerative disease can be stressful to establish, particularly when sibling have different approaches to and comfort levels with conflict.  This is why talking with an elder mediation professional can be helpful.  But there are several useful articles available on the web about “self-help” for disputants, and I liked this one from Social Work Today.  A particularly effective means of dealing productively with inevitable conflict is to make plans around it, particularly by having the conversation around end-of-life matters and also executing documents that name health care agents and express wishes and values.  Here’s a link to the Life Quality Institute, where you can find helpful resources.

I will end this post on a happy note, about the Dementia Friendly America Initiative, which seeks to make our communities easier places of inclusion for people with dementia, so that they continue to be recognized as community members.  Denver is one of the communities which has pledged to become “dementia friendly” as this press release from the Colorado AARP explains.

©Barbara Cashman  2015   www.DenverElderLaw.org

The Revised Uniform Fiduciary Access to Digital Assets Act

denver elder law

Siennese Door

This is an important development regarding the Uniform Law Commission’s Uniform Fiduciary Access to Digital Assets Act (UFADAA).  I learned that there is a new and revised version of the uniform law which has in the last few days been approved by the ULC.  It is known as the Revised Uniform Fiduciary Access to Digital Assets Act (2015).  In my last post on this topic in May, I described the short-lived history of HB 15-1189, the UFADAA in the Colorado legislature.

In June, yours truly was interviewed, along with Connie Smith of Fairfield & Woods, for the article “Assembling the Digital Legacy” which appeared in Law Week Colorado.  The article, written by Doug Chartier (sorry, no link as it is paid subscription only), described the ever changing landscape of identifying and managing digital assets for the living (as agent, conservator or trustee) or for the deceased (as personal representative).  The article reads a bit like an obituary for the UFADAA, which was enthusiastically presented in nearly two dozen state legislatures but met stiff opposition from diverse groups including (in Colorado) the Colorado Bankers Association and the ACLU.  Only one state has adopted the UFADAA so far and in most states where the legislation was introduced the UFADAA has already been rejected. This over what is broadly termed as “third party privacy concerns.”  The basic concern would be, to give one example, for those with whom the digital asset owner would have communicated – say via email, and whose private and protected information would be disclosed to a fiduciary acting on behalf of another (as defined in the UFADAA, but generally an agent under a POA, a personal representative of an estate and so forth) without the third party’s knowledge or consent.  It isn’t just about reading mail anymore, or emails for that matter!

Here’s a recent article in Forbes magazine about how forgetting to make plans about digital assets like social media can create post-mortem lawsuits.  One of the spot-on observations made in the article was about the difficulties in transferring digital assets and its potential to create unplanned business succession challenges as well as ongoing estate planning difficulties.  Getting back to the Law Week article, both Connie Smith and I agreed that online services for storage of passwords, usernames and other credentials for online accounts (digital assets, broadly defined) are problematic because of the concentration of personal data.  I give my estate planning clients an organizational “letter of instruction” which has a page for these online accounts and other digital assets. At this time I think the best way to maintain this information is in paper format, which can be easily updated on a personal computer and printed out periodically.  And no, you shouldn’t call the document “my online accounts and how to access them,” but maybe come up with something more creative!

In the meantime, don’t forget about making plans for those digital assets.  Here’s a helpful article from the American Bar Association on this topic.  Unfortunately, I wasn’t able to link to the revised version of the UFADAA on the Uniform Law Commisioner’s website – it does not yet appear to be available there.  I have a word version of the revised UFADAA, but haven’t had the chance to read it while comparing its previous version.  I’m sure that will be a topic of a future blog post. . . . !

©Barbara Cashman  2015   www.DenverElderLaw.org

Fiduciary Access to Digital Assets – an update of sorts

Italian Wall

Italian Wall

Well, it’s been a while since I’ve written a post about digital assets in the probate context.  This year, Colorado was one of twenty-three states whose legislatures introduced the Uniform Fiduciary Access to Digital Assets Act (UFADAA).  Keep in mind that the uniform act was endorsed by the National Academy of Elder Law Attorneys (NAELA) of which I am a member.  The Colorado House Bill to enact the UFADAA was introduced at the beginning of the year, HB 15- 1189, and can be read here.  Its short lived history is this: introduced in the Colorado House and assigned to the Judiciary Committee on January 29, committee discussion took place on February 19, and then on March 12, 2015, the House Judiciary Committee voted unanimously to postpone indefinitely further action.

Our legislature has postponed further action on this uniform law, but it doesn’t mean that it isn’t important for people and estate planning attorneys to address issues concerning access to digital assets by fiduciaries in the probate context.  According to the bill fiduciaries included the following: a personal representative of a decedent’s estate (where there is a will or codicil or also a special administrator); a conservator acting on behalf of a protected person; a trustee acting under a trust; and an agent acting under a durable power of attorney.  The bill specifically addressed each type of fiduciary and their access to a digital asset in further detail.

The Colorado Bar Association subcommittee charged with discussion of this uniform law as a Colorado bill also discussed Colorado-specific inclusions to the Uniform Act, like access by a “successor” as defined in  our probate code when a small estate is collected by affidavit. Basic Information about using this form is found on the Colorado State Judicial website, www.courts.state.co.us and searching for the JDF 999 form, with instructions found at JDF 998.

Specifically excluded from application is access by an employer for an asset used by an employee in the course of the employer’s business.

So HB 1189 didn’t become law because it died in committee, but that doesn’t mean that at least some of us estate and elder law attorneys (especially ones like me who prefer to use their own form and not someone else’s) don’t still include provisions regarding digital assets in a durable power of attorney form.  Colorado remains in the majority of states which have no legislation regarding digital assets in the probate law context, but that doesn’t mean we should feel comfortable remaining complacent and not doing anything to plan just because our legislature didn’t pass this important legislation. . . .  There are step we can take to help ensure that a fidicuairy will have access to important fiduciary assets, but without a state statute to that effect, it is much less certain exactly what type of access will be allowed or recognized.

So here’s a bit of a review of why these measures are important to include in a general durable power of attorney and a will or trust:

  1. Identifying and providing an inventory of one’s digital “footprint” will greatly simplify an agent or other fiduciary’s ability to take control of an incapacitated or deceased person’s digital assets in keeping with the stated desires of the person giving the power – like a principal under a POA, the settlor of a trust, or a testator (the maker of a will). This can be done easily by keeping an update listing in a place that is discoverable or known to an agent, for example.
  2. Giving a fiduciary access to important information like usernames, passwords and the like, will greatly simplify the fiduciary’s efforts and ability get access from a service provider or to shut it down. The law in this regard is complicated – it involves user agreements, which often are based on the law of a state where the service provider is headquartered and not in which the user resides, and implicates also the federal law relating to the use of the internet.
  3. When a person gives another, such as a person acting as a fiduciary for that person, the authority to act, there should also be some instructions about what should be done with the particular asset. This will obviously makes the fiduciary’s job much simpler as a job description takes much of the mystery out of such an undertaking.
  4. The person who is the account holder should also expressly authorize service providers to disclose private information to a person’s fiduciary so as to evidence the person’s intent to give access to such information and to provide the authorized access to the information or data as a consequent of such access. This is why some of us, myself included, include specific clause to this effect in a durable power of attorney.

That’s all for now, but I will keep you posted as things continue to develop.

©Barbara Cashman  2015   www.DenverElderLaw.org

 

Elderhood, Exile and Pilgrimage – part one

Desert Monolith

Desert Monolith

I first wrote “old age” in the title instead of elderhood, but thought better of it.  “Old age” can refer to something that is measured chronologically, while “elderhood” is more of a qualitative developmental stage I think. . .

Getting old(er) slows many of us down and sometimes can lead to a different kind of discomfort and pain – that of stillness and silence, sometimes born of simply slowing down and appreciating solitude, sometimes it is from being alone.  How many of us insist as we age that we shall keep on doing just as we have done before, it is the mantra of our youth-glorifying culture to always be active, participating, making, contributing, talking and so on.  But sometimes, we can find ourselves in a desert of vastness, alone and, as is appropriate for a desert, “deserted.”  This unfamiliar place and mode of being is so unfamiliar to us, it is often a frightening wilderness.  How can we go on in this strange place and why would we want to go on?  Thomas Merton observed in “Thoughts in Solitude:”

To wage war against despair is our wildness.

Perhaps we need the wilderness of desert, of that place of exile, if we hope to be able to discover our wildness.  This is what I am referring to when I write about exile, the wilderness of the unknown.

I recently met with someone who chose to return to Colorado to live.  This person had retired from the foreign service and had a foreign-born spouse and had not lived in Colorado for more than probably sixty years.  It seems that our sense of place, of belonging somewhere, is often inextricably tied to the movement we experience in our lives, along with the ancient mythological notions of exile and return.  So too our sense of belonging is often based on a comfortable way of being in the world that serves the limited and limiting needs of the ego-self (and not the higher self).

Next month is National Poetry Month, so I’ll start a bit early with this haiku from Saigyo:

So loath to lose

What really should be loathed:

One’s vain place in life,

We maybe rescue best the self

Just by throwing it away.

From Sanka-Shu (Lafleur transl.) in The Karma of Words: Buddhism and the Literary Arts in Medieval Japan (1983) at 100.  The transition to old age or elderhood can be a journey of years, a waking up in a strange and unfamiliar place, or even a drawing of a curtain of darkness between what-once-was-and-is-no-longer and a present existence which simply cannot be accepted.  In the latter place of being I am taking about the deepest level of youth glorification that can often continue during a person’s old age, when we focus exclusively on the losses sustained by our “doing” and otherwise capable self.  Death denial would seem merely to be an extension of such thinking.

Okay, there’s elderhood, old age and exile . . .  so what about pilgrimage. . . ?  It just so happens there are more than a couple springtime pilgrimage festivals if you will: Passover, one of three pilgrimage festivals on the Jewish calendar and Easter holy week, a pilgrimage time for Catholics, Eastern Orthodox and other communities.  Pilgrimage is in many respects a traditional ritual which is anti-modern in experience for many people who choose to make a pilgrimage.  Note how interesting is the common Indo-European roots of these three words: holy, whole and heal.  Definitions for pilgrimage include:

A journey to a shrine or other sacred place;

Journey or long search made for exalted or sentimental reasons;

Any long journey, especially one undertaken as a quest or for a votive purpose, as to pay homage.

And these are just a few!  In many ways, exile can be a form of liberation – whether we choose to see it that way is up to us of course (as is how we see anything).  Reminds me of the quote about seeing the world as we are, not as it is, which on this occasion I’ll attribute it to the poet and mystic William Blake, who also wrote:

Mysteries are not to be solved. They eye goes blind when it only wants to see why.

In many ways exile can be a form of liberation – whether we choose to it that way is up to us of course.  Is this perhaps why so many pilgrims go on their trek to begin with?  I’m think if many modern pilgrims walking along the Camino, making the Hajj to Mecca, or traveling to Chimayo, New Mexico – and many other places and paths.

Please stay tuned for part 2 next week. . . .

©Barbara Cashman  2015   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

 

 

 

 

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