Good Communication Is Often a Scarce Resource

Speaking Stones?

Is Communication a Seasonal Thing?

In my experience working with elders, communication with loved ones can be fraught with difficulties.  Sometimes it can be a dialogue based on relationship and sharing of information, but it can also be a monologue forced onto others by one person (often an adult child) who strives to control the narrative of the family.  The “silent generation” needs to speak up!

Communication can be defined simply as:

a process by which information is exchanged between individuals through a common system of symbols, signs, or behavior

I draw attention to this because it is part of the “holiday season” that causes many people undue stress during the months of November and December!

Money Smart for Older Adults

With the goal of starting a discussion about empowering better communication by elders, I’m sharing a link to a newly published document called “Money Smart for Older Adults.”  It’s a resource guide published by the CFPB, which is known now as BCFP it appears, along with the FDIC.  It’s not a short document (weighing in at 100 pages) and would take some time to read – but it’s chock full of lots of resources.

It has some good information about scams, but keep in mind that most scammers are quite sophisticated and tend to “update” theirs tactics as well as tailor their scams to particular communities or individuals they target.  Think of the scammer as like a virus in this respect!

I think a most crucial factor, particularly for members of the “silent generation” is to communicate: ask first whether the person you have in mind will agree to help you.  This means that an elder should be careful about whom they ask to serve as agent for them under a durable POA.  It may seem like a given that an elder would first ask a family member or friend if they would be willing to serve, but when people think that disability and estate planning is just about filling out some forms, disaster can follow!  This can be hard for people of a certain age, who may not want to be sharing all these details about which they have remained mum most of their lives, but it is the best policy. Why?

Why the Silent Generation Needs to Speak Up

People should tell others whether they have a POA as well as who is the nominated agent so that others can help monitor things and look out for the interests of the elder.  Communication about our weaknesses, shortcomings or frailties is seldom easy for most of us, but when we name people to assist us, it can be helpful for others to know we have made such arrangements as well as who those people are.  For example, in case a neighbor knows that an elder is facing a particular health challenge and really needs help, the neighbor will know that the elder has already made plans and that the agent can be contacted and notified of the elder’s need for assistance.

Another reason to communicate wishes is to clarify the wishes in advance so that there are no surprises in the event of some accident or catastrophic event.  Sometimes there is an adult child who has a chip on their should or perhaps an overweening sense of entitlement, and this child may be sorely disappointed to learn of the parent’s choice of agent when the elder faces a difficult decision about which they may or may not be capable of deciding.  Making one’s wishes known well in advance can often “soften the blow” to such a child, but in the end, it may be of little assistance.

If an agent knows that there are others who might be looking over their shoulder, the agent may take better care of the principal’s interests.

Some Parents Need to Protect Themselves Against a Child Who Wants to Control The Parent

At the other end of the spectrum, I see quite a bit of “misery loves company” behavior as well.  In this type of scenario there is one child who has been selected by the now-incapacitated parent who is effectively being punished by a child who feels left out or believes she should be entitled to make the decisions for the parent – this notwithstanding the fact that the parent did not select that child for such a decision-making role, usually for good reason.  To my mind, there is a fair amount of litigation that is fueled by the “let no good deed go unpunished” and this is very unfortunate.  But I digress….

Over the years, I have only spoken with a few people about including a “POA protector” in the POA document, but it may be that including such a role can be beneficial to a principal and also serve to protect the agent against the hostile actions

I s there anything that can be done about this?  Some trusts are written which name a person known as a “trust protector,” and it may be time for a similar type of office to be created for the POA – like a POA protector.  This can be a third person who keeps an eye on the agent’s record keeping or bookkeeping.

And don’t forget. . . Today is Giving Tuesday! You say you’re not familiar with this new tradition? It’s been around for over six years and it’s dubbed “a global day of giving fueled by the power of social media and collaboration.”

© Barbara Cashman www.denverelderlaw.org 2018, all rights reserved.

The Durable Power of Attorney: Of Rights and Relationships

Ancient Italian Stone

There has been a lot of heat generated in the last couple years by groups protesting abuses of guardianship proceedings in several states. In a couple earlier posts this year, I examined what guardianship reform might look like.  In this post I’m combining a reprise of my “prosocial” theme with a popular topic – the general durable power of attorney or DPOA for short.

The DPOA Creates a Legal Relationship

The DPOA is an extremely valuable tool to help us manage our longevity.  Each of us will die one day, but many of us will be affected by some incapacity because of an accident, surgery, condition or disease process.  We don’t usually know if and when we will be affected by incapacity (unless we have a diagnosis of a brain disease like Alzheimer’s or another disease that implicates our cognitive functioning).  It might be temporary incapacity or permanent in nature and worsen over time.  When will we know if we need a DPOA? Well, after it’s too late to get one!

Death is a Certainty, Disability is an Uncertainty

Many of us are reluctant to think about our death, and for some just thinking about disability – particularly Alzheimer’s disease – can be more frightening than the prospect of death!  For this reason, it is difficult for many of us to think about the circumstances under which a DPOA would be used.  But the fact remains that a DPOA is a much simpler, cheaper and less restrictive tool than the alternative faced when one is beset by an inability to manage finances or, worse, incapacity: a conservatorship.  Read more about conservatorship in Colorado on the Colorado state judicial website or check out the Colorado Bar Association’s flyer.  Both an agent under a DPOA and a conservator act in a fiduciary capacity for the principal and the protected person, respectively.  A fiduciary is a person who has a relationship of trust and confidence with another person and the legal relationship is the basis for a duty of a fiduciary to act in furtherance of the other’s persons benefit or in pursuit of their best interests and expressed wishes.  There are many types of fiduciary relationship in the probate court context – but only some of those fiduciaries are court-appointed.  For purposes here, we are talking about an agent named in a DPOA acting as a fiduciary for the principal.

A DPOA is a very powerful document and when the wrong person is named as agent, the agent can do much harm.  But the DPOA is still an indispensable document because of its power to be used “in case of emergency.”  As a planning tool, the DPOA helps people avoid much more invasive and expensive legal proceedings which are typically more work for the agent.  There are ways to draft and tailor a DPOA to deter exploitation and provide for transparency which can make exploitation much more difficult.  Here are several points to consider:

Choose your agent and successor agent very carefully

Many people think getting a DPOA is just filling out a form, but in fact there is lots of counseling which most of us in this field of estate planning and elder law do when we assist our clients in identifying who is the right person for this important job.  Is the person named trustworthy?  Are they financially savvy?  Do they keep good records? Are they careful with money?  Will the agent faithfully perform according to the principal’s expectations or desires?  Remember that the agent works for the principal – and not the other way around!

  • Consider naming a “POA protector”

This person can perform a role similar to that of a more commonly known “trust protector” – someone to look in on things from time to time or on an as needed basis to ensure that the agent is performing their fiduciary role adequately.  A good way of using such a POA protector is to name a third person to perform an accounting or some other oversight role.  This can be particularly helpful in the event the principal loses the ability to manage their own finances or otherwise lose capacity.  While this arrangement may sound intrusive, it may help smooth out bumps in the road among siblings after a parent becomes incapacitated.  An elder parent’s slipping into advanced dementia can cause a lot of conflict in families and a POA protector can help provide transparency which can result in lowering conflict or distrust.

  • Take care to limit or otherwise define an agent’s gifting power

Under the Colorado Uniform Power of Attorney Act, an agent does not have the authority to make gifts to themselves unless the DPOA makes such a grant specifically.  But keep in mind that this prohibition will not deter bad actors – so it can be helpful to spell out such provisions to make the prohibition more apparent to increase the detection of prohibited self-gifting by third parties – like a principal’s bank or other financial institution.

  • Make sure the DPOA refers to “hot powers”

What my colleagues and I refer to as “hot powers” are those powers that most agents will not need, and which must be specifically granted – like the agent’s ability to change the beneficiary on a life insurance policy or an IRA account for example.

  • Remember that A DPOA can be revoked and replaced

Keep in mind that the DPOA is not “written in stone” and can be revoked so long as the principal retains capacity to do so.  This is a relatively simple way to take away an agent’s authority, but if the agent has been acting on a principal’s behalf (either with or without the principal’s knowledge) then the principal will need to contact third parties to notify them of the revocation of the DPOA and/or the agent’s authority.

In the elder law and estate planning context, taking stock of our relationships with those with whom we are close requires us to examine who we are naming for which “job description” and to ensure the named person is the right one to perform the job.  Choose carefully!

© 2018 Barbara Cashman  www.DenverElderLaw.org

 

 

May is National Elder Law Month!

Italian Door

Did you know that the first recognition of this month was in 1963, when President Kennedy declared it to be Senior Citizens Month to honor those 65 and older?

I am observing it in my way by continuing to post about topics relevant to elders and the rest of us who aspire to become “senior citizens” …  Today’s post is another in my series on guardianship reform.

I recently read a new publication by Thomas Lee Wright, The Family Guide to Preventing Elder Abuse (2017: Skyhorse Publications). Wright also produced Edith and Eddie,” the 2018 documentary short Oscar nominee, which you can watch here.  I watched this poignant short film about a newly married nonagenarian couple.  There were many things in the short that were left out of the film which concerned Edith’s dementia.  The film could have gone into detail about the legal wranglings relating to Edith’s guardianship, but it didn’t.  To my mind, the beauty of the story was its simplicity: their love for each other.  I don’t want to give a spoiler alert concerning the sad ending, suffice it to say it had to do with Edith’s guardian’s decision-making authority.

Back to the book.  Many aspects of Wright’s book I found to be informative and helpful, but one of the shortcomings I sometimes find about books of this nature which originate from an author’s personal experience, is that its scope tends to be narrow and somewhat reactive to the situation with which the author unfortunately was made familiar.  I did like that many of the chapters are written by others with expertise in the field about which they write and provide different perspectives.

Are the Probate Attorneys and the Guardians of Incapacitated Elder Adults Part of the Solution or Part of the Problem?

As an attorney representing clients involved in protective proceedings or related matters, I work in an imperfect system.  Sometimes I struggle to explain to clients why things work the way they do.   Sometimes they ask me why it is so hard, why it has to be so difficult to take care of a parent.  My answer is always the same: if it were easy to do the right thing, we would live in a vastly different world. There is no black/white or right/wrong in our legal system, even fewer in probate matters as there are many perspectives and viewpoints of someone’s “best interests” in probate court.  A colleague once referred to it as “like a divorce except with five people involved.”  It is in this sense a branch of domestic relations court.

Why is this observation important? Each of us – attorney, client, as well as the other involved in proceedings (and there can be a rather large cast of characters) always need to keep in perspective that we have our own perception of what is happening and why, our own beliefs about what is in another’s best interest, and our probate court system tries to account for these things while respecting due process rights of the elder involved who is not able to make or communicate important decisions relating to the court proceedings.

But I digress, so back to the book… of interest to me were chapters 7 “Working with Professionals” (doctors and lawyers) and chapter 8 “Abusive Guardianships.”  Chapter seven addresses how to work with doctors and lawyers.  Many of my clients with whom I work have not previously hired an attorney.  There are many things to consider in hiring a lawyer in the elder law context, but I think the most important considerations are working with someone you feel you can trust, he uses clear and effective communication skills and answers your questions and provides guidance.

As for chapter eight, I found the co-authors’ very brief “history” of guardianship law to be not helpful and its broad statement concerning the standard of proof in guardianship proceedings is misleading and could easily have been corrected with fact checking.  In Colorado, the standard of proof for establishing a conservatorship is a preponderance of the evidence, while for a guardianship the standard is clear and convincing evidence.  There is no “one size fits all” preponderance of the evidence burden of proof in civil proceedings.

I also found their use of the term “predatory attorneys and guardians” to be vague and misleading.  I was not sure whether the term was used to refer to professional guardians and there were few details to flesh out the use of these terms.  As an attorney in Colorado, I can say that in a Petition for Guardianship or Conservatorship, I must alert the court as to the existence of a medical or general (financial) power of attorney and will typically explain in the Petition why the agent is unable to perform their duties as anticipated.  The advance planning in the form of POAs is not just summarily chucked out the window!

Advance planning does not work 100% of the time.  Complications can arise when an agent is no longer willing to perform because the job is too difficult.  In my practice this typically takes place because of family dynamics and as a result of sibling relationships becoming more fractured and hostile due to an elder parent’s cognitive decline or incapacity.  Sadly, some children readily take advantage of the situation, sometimes out of a sense of entitlement, that the parent “owes” them, or because they have nurtured a lifelong grudge against the sibling who is selected as the parent’s agent.  Sometimes it’s one child with a “misery loves company” modus operandi, these folks are very troubling to their unwitting parent and the adult child the parent has named to assist the parent as agent.

By the time an adult enters the probate court proceedings as a “respondent” named in a Petition for Guardianship or Conservatorship, the elder parent may be in the final stages of advanced dementia and barely rooted in time and place. Court appointed counsel, known as “Respondent’s counsel” may or may not be able to adequately represent the Respondent’s legal interests due to communication difficulties and a court may find it necessary to appoint a Guardian ad Litem to represent the Respondent’s best interests.

No Respondent Goes Willingly to the Hearing on a Petition for Guardianship!

I have yet to hear an elder respondent state, “why yes, your honor, I have really been slipping cognitively and need the court to appoint someone to take care of everything and make decisions for me.”  The cognitive impairment of an elder is often barely noticeable because it tends to happen over time, often gradually.  Some elders refuse to go to a doctor because they suspect they will get a dreaded diagnosis they don’t want.  I sometimes refer to Alzheimer’s as a contagious disease because it often happens that the denial that something is terribly wrong is shared with a spouse, adult child and sometimes others close to the elder with cognitive impairment that puts them at risk to financial predators.  Couple this with the fact that there is no medication to slow the decline or reverse the losses and the result often means waiting until a catastrophe has taken place.  Maybe mom gave away $30,000 of her $60,000 life savings to one of her kids or to a neighbor or to purchase lottery tickets.

There is neither a simple nor an easy solution to this challenge to our legal system.  It will only become bigger and more complicated as the numbers of old and cognitively impaired baby boomers rise and their often fractured family relationships contribute to the dysfunction.

In the next post on this topic I will look at standards for appointing a guardian or conservator as well as the oversight by the court system of these proceedings, which can cover a long span of years.

© 2018 Barbara Cashman  www.DenverElderLaw.org

A Brief Look at the Thinking Behind Guardianship Reform

Help with wings

Those of us who practice in the field of conservatorships and guardianships (this is Colorado terminology; their precise titles vary from state to state) are now struggling to make sense of the many proposed changes put forward by critics.  I am primarily concerned with the proposed legislation from the Uniform Law Commissioners known as the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act (UGCOPAA).  This proposed legislation has been hailed as a modern update to guardianship and conservatorship law.  Where Colorado (in contrast to many other states) has long established uniform guardianship and conservatorship legislations, along with periodic updates, the new uniform legislation is basically “Guardianship 2.0” in that it represents a major and systematic update and overhaul.  The American Bar Association has a good overview of the proposed uniform legislation here.

The Challenges of Reforming Different Systems Among the States

Nationwide, there are many groups and individuals behind efforts to reform guardianship (as the term will be used collectively to refer to both types of legal proceedings).  The different groups have different criticisms and there is no shortage of horror stories about how these “protective proceedings” have gone wrong for many people.  While many people would like to have more uniformity and oversight imposed on the state systems of probate courts, the federal government is neither equipped nor inclined to act as overseer here.  The lack of resources for the much-hailed Elder Justice Act is an example of this unfunded mandate.

There Are At Least Two Different Populations of Vulnerable Persons

Guardianship reform efforts are aimed to assist those identified as the most vulnerable segments of our population: the disabled community (with organizations like The Arc and legal protections like the ADA), along with elder adults with declining cognitive capacity.  This latter population will continue to grow.  The numbers of elders with severe cognitive impairment grows with the numbers of elders, and the Alzheimer’s Association has dubbed my generation of baby boomers “generation Alzheimer’s.”    To my mind, there are two very different “camps” of persons in this proposed legislation.  Suffice it to say that the two segments are generally included as a group together because of the overlapping needs for respect for their rights to dignity and self-determination.

My central concern with the proposed legislation is the point where the two groups interests and needs for protection diverge.  Keep in mind they are very different populations.  I’m using a broad brush here, but we’re talking about needs and protections of a developmentally disabled adult who may be relatively high functioning in some aspects of living and need substantial assistance in others.  They may be able to live independently with assistance.  Contrast this with the large numbers of elder adults who, as a direct result of our unprecedented longevity, have amassed resources, established relationships and lived their own lives prior to succumbing to dementia.  When does one lose the ability to manage one’s own affairs?  That simple question has no simple or easy answer!

Among those who call for guardianship reform in the context of elders, there are a couple groups, those associated with celebrity children of fathers who suffered from Alzheimer’s Disease.  These daughters were not allowed sufficient visitation with their fathers due to restraints placed on such visits by their stepmothers, specifically Kasem Cares and the Catherine Falk Organization, who have zeroed in on a right to association as part of guardianship reform.

The Guardianship Reform Movement Is a Diverse Group with Many Diverse Interests Represented

Suffice it to say that some of the diverse interests conflict with each other.  Many of the calls for guardianship reform are in response to the inherent failings of a particular state’s system of oversight.  Nevada’s system in Clark County was the subject of Rachel Aviv’s New Yorker article “The Takeover,” and it documented in horrifying detail how elders were systematically stripped of their civil rights as well as their property, with hardly a nod in the court system to any due process rights.

That reform is needed is not the issue, but the where, how, why and what of that reform should be examined closely, instead of trying to overlay a “fix” for a problem which may not exist or by creating new problems by reforming a system in its entirely when there were parts of it that were working fairly well.  If you take a poll of attorneys in this field, you would be hard pressed to find people who don’t have concerns about how our system works and most of us could list an array of its shortcomings.  Does this mean the system is broken? I don’t think so. Does it need improvement? Yes.  Our legal system is a functioning part of our government that must respond to the diverse array of interests, pressures and fiscal priorities and realities.

What I find disturbing about all of this is the clamor to “fix” a broken “system” – as if all we needed to do was pass some new legislation that would magically transform the adult protective proceedings system into a streamlined, dignity-honoring and civil rights protecting regime. In our obsession to fix a problem and then move on to the next thing, we overlook the opportunity for thoughtful change and typically neglect the big picture of looking at the entire system – both the working and the failing parts, with an eye to improving particular outcomes.  This takes longer obviously, but avoids the throwing the baby out with the bathwater approach.

Next time, I will look more deeply into the criticisms levelled at attorneys and fiduciaries working in the field of conservatorships and guardianships.

© 2018 Barbara Cashman  www.DenverElderLaw.org

Is Guardianship Reform Coming to Colorado?

One Stone of an Ancient Ring

I’m beginning a series of posts about guardianship reform and its relationship to elder abuse.

What is known as “guardianship reform” is a very hot topic these days.

On the local level, I noticed that a candidate for a Littleton City Council seat made a critical reference to the powers of the Adult Protective Services system to investigate the welfare of a local resident (who apparently has dementia) living in her own home.  In the national press, guardianship reform has received lots of attention.  For Colorado, we have had versions of the Uniform Law Commission’s Uniform Guardianship and Protective Proceedings in our probate code for quite some time.  You can review the User’s Manuals for Guardians and for Conservators in Colorado here.

The Uniform Guardianship, Conservatorship and Other Protective Arrangements Act

But there is a newer 2017 version of a uniform law which the Uniform Law Commissioners have prepared for adoption by the states.  It is known as the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act, or UGCOPAA.  You can read more about it here.  A sub-committee of the Trusts & Estates and Elder Law Sections of the Colorado Bar Association is presently reviewing its provisions to examine how its provisions would impact existing Colorado law (our code and case law pertaining to its provisions).  More about that later!

This post is the introduction to the series and so I ask the basic question:

What does guardianship reform have to do with elder abuse prevention?

Apparently, plenty!  Particularly if you happen to be the child of a celebrity whose stepmother acted as your father’s guardian and limited or prevented you from visiting your parent during the end of his life and while he was suffering from dementia. The connection came to me the other day in the form of a Google alert.  It cited to a recent article about Casey Kasem’s daughter Kerri, who had a dispute with Kasem’s wife about his care while suffering from Lewy body dementia as well as the disposition of his last remains.  Glen Campbell’s children also had difficulties with their stepmother and their effort resulted in a Tennessee law that will “protect elderly.”  This LA Times article is about Kerri Kasem teaming up with Catherine Falk to advocate for more restrictions on a guardian’s authority which would allow more family members and others the right to visit a person under a guardianship.

In coming posts, I will explore topics including:

  • The importance of making your fiduciary/care wishes known If you are part of a dysfunctional family;
  • Who and what are fiduciaries in the elder law and probate context and why have they become so controversial?
  • What are unlimited guardianships, limited guardianships and “other protective arrangements;”

As well as other topics that arise in this context.  So please stay tuned!

© 2017 Barbara Cashman  www.DenverElderLaw.org

 

Elder Abuse and Domestic Violence

Elder Abuse Hastens Death

October is domestic violence awareness month.  I have previously explored some of the links between these two dangerous expressions of violence -elder abuse and domestic violence, but I thought it was time to delve into this topic a bit more deeply.  The National Committee for the Prevention of Elder Abuse identifies domestic violence as

an escalating pattern of violence or intimidation by an intimate partner, which is used to gain power and control.

Two broad categories of domestic violence against the elderly can be identified:

“Domestic violence grown old” 

is when domestic violence started earlier in life and persists into old age.

“Late onset domestic violence”

begins in old age. There may have been a strained relationship or emotional abuse earlier that got worse as the partners aged. When abuse begins or is exacerbated in old age, it is likely to be linked to: events such as retirement, disability, changing roles of family members and sexual changes.

Many people might find it curious that some elders would enter abusive relationships late in life, but there is a strong connection between elder abuse and family violence.  Family violence can manifest in a variety of ways, from callous and violent actions toward a pet or other animal which can often lay the groundwork for the “power over” relationships with others, particularly those who are in low power positions such as elders.  Following on this thread, the American Humane Society has identified connections between animal cruelty and human violence.

Effort is Needed to Improve and Streamline the Collection of Data and the Study of Elder Abuse

The study of elder abuse – encompassing its variety of forms and definitions – is still in its infancy.  The Urban Institute’s research report from June 2016, What Is Elder Abuse? A Taxonomy for Collecting Criminal Justice Research and Statistical Data, notes that there is no uniform, national-level definition of elder abuse because the response to elder abuse has occurred primarily at the state and local level.  The report’s proposed taxonomy seeks to grapple with the disconnect between estimating the incidence of elder abuse nationwide when there is such a wide variation in definitions of elder abuse among the states, not to mention how these incidences of such events or crimes is reported among the states.  The report looks at the many layers of elder abuse in terms of what types of acts constitute elder abuse; what kinds of people are the victims; what is the relationship between the perpetrator and the victim; when is elder abuse a crime or not a criminal offense, and why it is important to collect data concerning reports which fall below the threshold of elder abuse.

The fact that the study of elder abuse  – as a form of interpersonal and often domestic or intimate partner violence – is in its infancy does not mean, however, that there are not valuable and helpful resources available, such as these resources from the National Center for State Courts’ Center for Elders and the Courts, which offer educational information for laypersons as well as proposed standards for state courts to improve the courts’ ability to recognize and effectively respond to victims of elder abuse, as well as offering guidance to guidance to and effectively prosecution of these offenses by law enforcement.

The Troubling Intersection of Domestic Violence and Elder Abuse for Elder Women

One of the troubling intersections I came across in research for this post was the element that the elder woman victim may need to pay close attention to which state “system” she enters to report the abuse, as the domestic violence and adult protective service agencies operate independently and define causes of abuse differently.  I found a very helpful article on this topic published by two faculty members of the School of Social Work at Loyola University Chicago.

Fortunately, there is a developing approach to the challenge of identifying, reporting and prosecuting elder abuse which is multidisciplinary in nature.  Not all elder abuse is criminal.  For most of us practicing in the field of elder law for more than a “few years,” there was often a refrain from a law enforcement agency that the alleged abuse was not serious enough (or not a large sum of money involved) to warrant prosecution and so was “a civil matter.”  I remain concerned that there is a wide gulf between what is sufficient to activate the criminal prosecution of elder abuse and how the civil law (including probate proceedings) can provide applicable and appropriate relief to the fullest extent appropriate.

I believe the best policy is to have persons unsure about reporting suspected elder abuse to make the call to law enforcement so that the appropriate government authority can determine the scope of the investigation of the suspected abuse and whether it is appropriate for prosecution.  This reporting, even if it results in no investigation or subsequent prosecution, remains important for data collection purposes.  In this context, as in so many others. . ..  information is power.

© 2017 Barbara Cashman  www.DenverElderLaw.org

Dreaming Into Retirement Planning

Dreamtime Batik

I recently ran across an article by financial “coach” Chris Hogan  about the importance of having a dream to inspire us to plan for and to carry out our plan for retirement.

Hogan’s tactic is to motivate, not intimidate or strike fear. His book “Retire Inspired: It’s Not an Age, It’s a Financial Number” and if you’re interested in listening to one of his podcasts, here’s a link to that.

I liked this idea and of course it wasn’t new.  I thought of Richard Leider, the author who penned the book “Life Reimagined” in 2013 and has championed risk-taking for folks over 50 while cautioning us against being a “former” anything in retirement.  You can watch his Ted x talk about the importance of finding your purpose, particularly to motivate retired people to get out of bed in the morning.

Can we dream into our purpose when we are facing retirement?

Dreaming can, at any time or stage of our lives, help us find our place in the world and to help identify the challenges which face us.   Dreams can help us construct our own personal mythology, our story in terms of what we are here to do and how we are meant to be in this world.

I suppose it depends on how you define “dreaming “of course  – and whether we work on the dreams or they work on us.  I am rather fond of Dr. Jung’s quote from Dreams, Memories, Reflections, which he wrote when he was eighty-one:

Who looks outside dreams; who looks inside awakes.

It’s a rather slippery slope, isn’t it?  Particularly for us Americans who have always felt so strongly about being in charge of our lives.  We who know such boundaries and demarcations flowing from our sense of autonomy. Retirement forces us to think differently about what we do with the rest of our lives.  We often thing about this as a sad, backward gaze, held and nurtured for its lost glory.  But it can be a time for us to lighten our load of our thinking about our lives and about its doings.  Perhaps it can be liberation.

Leider talks about the three “M’s” of money, medicine (health) and meaning – the fundamental things that help us identify what we really need so we can be free to leave behind the other things that may simply distract us.

I think for many of us the fear of retirement, and why we are loath to plan for it, is that we don’t want to allow ourselves the space to dream because, well, it might not be what we think we “always wanted” or what was expected of us.  I think it also has a lot to do with our fear of aging in general as the run up to the inevitable end of our lives.

So what to do in the meantime?

Start dreaming, particularly your own dream, not someone else’s!  And if you don’t want to dream because it sounds too silly, then take Leider’s napkin test and see if you can pull that off!  Get together with a loved one or colleague and take “the napkin test” to discover what is really important to you, what gives you joy and allows you to feel connected to others.  Stop and reflect.  You can watch (on Daniel Pink’s website) a one minute and twenty second video featuring Leider explaining how to do this

I’ve condensed a bit of Hogan’s advice here from that Washington Post article above:

  • A secure retirement isn’t accidental;
  • Dream your dream and make a plan that will get you to that dream;
  • Execute the plan with a commitment to do what is necessary to bring it to fruition.

Lastly, here is another article by Hogan about  What do you need to do to retire with $1 million?

Happy dreaming!

© 2017 Barbara Cashman  www.DenverElderLaw.org

Boulder Senior Law Day is Saturday, September 23, 2017

Venetian Canal

 

The Boulder County Senior Law Day will take place this Saturday at the Plaza Event Center in Longmont, CO.  Here is their website if you are interested in registering for the event or would like more information.  There will be 20 different presentations on topics ranging from how to serve as a fiduciary or health care agent for another person; the basics of Medicaid and what you need to know; what’s “trending” in elder fraud (presented by Jane Walsh, Deputy DA from the 20th judicial district); special needs planning and many other interesting topics.  I have been asked to present on ethical wills and leaving a meaningful legacy.

I have written several blog posts on this topic, but I find something new to write about each time I return to this topic!  Most of us estate planning attorneys need to have a sharp eye for identifying potential minefields in a client’s choice of beneficiaries.  It goes without saying we must be vigilant to find ways of minimizing conflict and potential conflict among fiduciaries (agents under powers of attorney, trustee, and the like) as well as beneficiaries in assisting a client in putting together a comprehensive estate plan for managing disability or incapacity (using durable powers of attorney) and for post-mortem planning (by using a will and other available tools suited to the client’s situation).

The estate planning documents we draft for clients are legal documents and we lawyers tend to draft them in ways that are free from language regarding the testator’s (the legal term for a person who makes a will) thoughts or feelings about particular persons or things, but some important documents can help fill in the gaps or empty spaces.  One of these is an ethical will.

Another related document is what is known as a “side letter” which is focused more closely on fleshing out and providing the context for a testator’s intent concerning the rationale for distribution in a will or other estate planning document.  These “side letters” are not without risk and they will likely not be effective in swaying contentious beneficiary who holds to the belief that they have been cheated out of a larger share of an estate.

What I will be talking about Saturday are the benefits of drafting an ethical will or legacy letter to “bequeath,” if you will, the intangible legacy and values of a person’s life.  This writing can also greatly benefit the writer of the document to provide an opportunity help establish one’s own meaning of existence and to weave together the pieces of one’s life into something one might call purpose.  In today’s always-on age of constant chatter, busy-ness and noise, such an exercise of reflection can be priceless!

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Elder Abuse Detection: the Vital Role of the Physician

Flowers in Stone

Colorado physicians are mandatory reporters under the Colorado elder abuse statute.  See Colo. Rev. Stat. §18-6.5-108(1)(a) – (1)(b).

There is typically a lot of shame and guilt around abuse or exploitation with an elder victim, particularly when the abuse is perpetrated by an adult child or family member of the elder and the elder may be reluctant to take any protective action on their own.  The elder often suffers alone and in silence and will sometimes neglect themselves as a result.  Remember that we don’t really have any firm grasp on how rampant elder abuse or exploitation is in our country due a number of factors which include: the reluctance of a victim to self-report; the variety of state law definitions of what constitutes elder abuse; and a lack of any central clearinghouse for collection of state or federal data concerning reports of elder abuse (in its different aspects).

Financial exploitation, emotional or physical abuse tend to have serious and life-shortening health effects for an elder.  Remember that a 2009 JAMA article on Elder Self-Neglect and Abuse and Mortality Risk stated that elders who have been abused have a 300% higher risk of death compared to their age cohort of those who have not suffered such abuse.  This is most certainly a health issue for at-risk elders and this fact makes it that much more important that doctors, particularly ER (or ED) doctors be trained to recognize the signs of abuse or self-neglect resulting from mistreatment.

The ER doctor sees not just the immediate physical effects or injuries of a physical abuse or emotional abuse (spiking blood pressure, increasing risk of stroke or heart attack) but they also see the effects of depression and other factors which both contribute to an elder’s isolation and vulnerability and are the ongoing results and manifestations of the elder’s victimization.

A recent Kaiser Health news article recently highlighted findings from a study in New York on increasing ER doctors’ awareness of signs of elder abuse.  Some of the training is around going behind the explanation of the injuries – usually from a fall or some other accident, and asking questions which may uncover the abuse which caused the “accident” and its injuries.  We have a long way to go to train more ER doctors to be up and running mandatory reports.  Doctors have made huge strides in recognizing other “accidents” or injuries resulting from domestic violence and child abuse and we need to have the same strides made for the detection and reporting of elder abuse.  It’s time!  We need to connect the ER doctors more effectively with the agencies involved in assisting victims – adult protection services and law enforcement agencies.

Here is an informative pdf from Florida State University’s National Prevention Toolkit on Domestic Violence for Medical Professionals. You might think it has to do with domestic violence, but it is a document that looks at each of the fifty states’ laws on reporting elder physical abuse. It identifies the reporting law for elder abuse, identifies who are the mandatory reporters (especially physicians and other health care professional) and provides some detail concerning the applicable civil and criminal statutes.

Why is it important to empower doctors with this information? An article from 2015 on physician screening for elder abuse observed:

Healthcare workers, more specifically Emergency Department physicians, are in a unique position in which they can not only screen and detect elder abuse in their patients, but also can change the abusive situation and prevent its continuation.

A brief article on emergency department care (filed under elder abuse treatment and management) urges doctors to take the time needed to assess a suspicious situation, noting that elders do not usually self-report and observing there may be concerns around balancing autonomy and safety.  Referral to APS is noted as “vital to decrease morbidity.”

Physicians and other health care professionals can provide important, necessary and perhaps life-saving medical care to victims of elder abuse.  Here is a link to a webinar on the ElderJustice.gov site to a webinar entitled “How EMTs Can Help Identify and Report Elder Abuse.”  When there is widely available training of medical professionals about how to ask and what to ask an elder on this difficult topic and there is also familiarity with available reporting units (APS or law enforcement) and sources for service referrals to assist the elder, elders in our community will be better served and the community will have another valuable resource for reporting incidents of abuse.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Are There Alternatives to Guardianship for an Elder with Dementia?

Abacus of Glass Beads

I’m taking a look at the alternatives to unrestricted or plenary guardianship as a result of reading my latest issue of the ABA’s Bifocal magazine, in which the ABA’s House of Delegates adopted Resolution 113, urging states and other legislatures to amend guardianship statutes to consider less restrictive alternative to unrestricted or plenary guardianships of incapacitated adults and to require consideration of putting into place decision making supports that would allow a person the right to supported decision making as an alternative to (or reason for termination of) guardianship of an adult. I found the topic thought-provoking, particularly in light of a recently approved uniform law which contains many references to supported decision making.

In Colorado, an Incapacitated adult is defined our Probate Code at C.R.S. §15-14-102(5) as one

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

The definition comes from the Uniform Guardianship and Protective Proceedings Act, or CUGPPA in Colorado.  Below I’ll take a brief look at a continuum of less restrictive alternatives to implement in the making of decisions for persons who may be or become incapacitated (but not necessarily determined to be such by a probate court in protective proceedings).

First, I’ll note that each of these aspects of functional capacity and incapacity implicate a person’s rights to self-determination.  Self-determination is a broad topic. The principle of self-determination is prominently enshrined in Article I of the Charter of the United Nations.  It remains a concern under international law due to the fact that there are peoples who are not necessarily represented by the nation in which they find themselves.  For an adult who suffers from a progressive condition or disease process that results in cognitive impairment, there really isn’t such a stretch here to say that a person with dementia is at risk of being “colonized” or have their rights self-determination effectively erased by a legal determination of incapacity.  Here I’m talking about self-determination in the medical, and personal preferences context (concerning levels of care or autonomy, as well as choice of the setting in which one lives). The UN Convention of the Rights of Persons With Disabilities (CRPD), also speaks about supported decision making and you can read more about it here.

The medical or health care POA

I’m focusing on the medical POA here because Colorado’s protective proceeding for a person’s property is known as a conservatorship.  A conservatorship is often not necessary if a person has made effective POA naming an agent and the relationship is working and not otherwise under threat from an interloper.  But. . .  keep in mind that sometimes a non-agent family member or friend can take advantage of a person more easily if there is no court-imposed protection of the person’s property. Ah, there’s that ugly head of patriarchal protection (in the form of parens patriae, the power of the state to act as guardian for those who are unable to protect or care for themselves) again!

Bottom line is that, when people (sometimes known as “patients”) make their wishes known in advance to family members or others and empower another to decide for them as the person’s agent in a MDPOA , that empowerment alone can often lead to better outcomes.  But the fact remains that many of us choose not to choose to name an agent. So what’s next? In Colorado there are also proxy decision makers, which we might consider as “de facto” decision makers under applicable Colorado law.  So, that brings us to the next item. . .

Supported decision making – an intermediate ground . . .  or no man’s land?

This item is specifically included in the newly minted 2017 version of the Uniform Law Commission’s UGPPA, er UGCPAA (Uniform Guardianship, Conservatorship and Other Protective Arrangements Act) at §101(13) where it is listed as one of the “less restrictive alternatives” to guardianship.   In the proposed UGCOPAA, supported decision making means “assistance from one or more persons of an individual’s choosing” (§102(13)); and is added to the end of the above stated definition of incapacity – to read “unable to effectively receive and evaluate information or make or communicate decisions, even with appropriate supportive services, technological assistance, or supported decision making” (§301(a)(1)(A)); is an appropriate consideration for a court visitor to include in the report (§304(d)(2)); for inclusion in the court’s order appointing a guardian (§310(a)(1)); as one of the rights retained by an otherwise incapacitated adult, to “be involved in health care decision making to the extent reasonably feasible. . .  (§311(a)(3)); and in other examples perhaps appropriate for a later blog post. . . .

What are some standards for supported decision making, which is related to “person centered” planning (now part of the Medicare rules, incidentally)?

This alternative sounds all well and good Barb, but what about those elders with dementia whose cognitive impairments are likely to worsen?  Is it realistic to devise a plan for this supported decision making?  After all, those folks are arguably in a situation different from developmentally disabled adults who may can live independently and working in the community, so long as there are community supports.  But I think this is a less restrictive alternative that is seriously underutilized due to the simple fact that people aren’t used to the idea and it is challenging to identify what it might entail and look like in an alternative to probate court protective proceedings or as part of a court’s order granting a limited or restricted guardianship.

Limited guardianship

This one is pretty self-explanatory.  Only certain identified matters are under the authority of a court-appointed guardian and the rest of the rights are reserved to or preserved in the “ward.”  The tricky part with this is an important detail – scarce judicial resources.  Most courts are not anxious to re-examine how supported decision making or a limited guardianship is working and re-tool it as needed.  Most courts have a difficult enough time simply monitoring those guardians!

Plenary or unrestricted guardianship

This is the norm in this country, regardless of lip service in statutes or case law concerning less restrictive alternatives.  But if we are to truly attempt to accomplish guardianship reform, we (courts, elder law attorneys, service providers and other resources) must work together to fashion a viable alternative to what has become the quick and dirty, default request in a guardianship proceeding involving an elder with dementia who may be in the future or already is “incapacitated.”  Stay tuned for more on this topic in the future.

© 2017 Barbara Cashman  www.DenverElderLaw.org