The Few, The Brave, Those Willing to Plan for Dementia

Scottish Spring

This is the second installment of my series.

If you’re reading this post you might be one of the few people willing to talk about dementia – specifically about YOUR dementia.  You may have determined, regardless of whether you think you will suffer from some sort of dementia or significant cognitive impairment in later life, it’s a good idea to express your wishes while you can. 

Making decisions for a person with advanced dementia is difficult at best, and at its worst, making the decisions in a vacuum – without any idea what the person with dementia would have wanted – is exponentially more difficult.

Do you have strong preferences about how you wish to be treated if you suffer from dementia?

Perhaps you have been around long enough or have simply paid attention to witness the challenges and difficulties we have with dying in America, particularly with the kind of dying which appears to play out in slow-motion – which often accompanies advanced dementia.

Who will be your care partner?

Some years ago I wrote a post with a link to a “bill of rights” for dementia patients and here is a current link to a trademarked bill of rights for folks with dementia. These documents tend to be focused on dignity, maintaining a person’s “right of association” with people and places where they are valued and having a trained “care partner.” The people I have worked with who have been diagnosed with early stage dementia and who participate in research studies have usually identified a “care partner” because that is part of the preparation for the advancement of the disease.

The dementia directive’s choices: freedom from and freedom to…

These older types of dementia directive tend to be centered on holding to a person’s traditional preferences.  In civil or human rights terms, these types of statements are positive human rights and many are aspirational in nature.  But these statements also have an important place in reminding all of us of our inherent dignity, regardless of our cognitive abilities.  But many people want to take things further….

How much further? I received a call from someone whose sibling was gravely ill and in hospice care.  While he had been expected to die some days or weeks prior to the phone call, the ill sibling was hanging on by a thread while in hospice care.

The question posed to me was straightforward: can a health care agent for a dying person arrange for getting a prescription for life-ending medication for the terminally person?

The answer is “no”.  Under our End of Life Options Act, only an adult (in hospice care) who has decisional capacity can seek such a prescription.  A person with advanced dementia or someone who lacks decisional capacity cannot get aid in dying meds. The law does not allow an agent for an incapacitated person to procure such a prescription

The terminally ill sibling had a form of dementia caused by major organ failure, not Alzheimer’s or another type of dementia which has a disease process of many years and so was not able to assist the dying sibling in this way.

What exactly is an advance directive for health care?

I find this question requires a lengthy answer because “advance directive” can include a medical power of attorney, a living will, along with other documents or directives.  An advance health care directive is typically used for setting up the legal framework for someone to name another person to make health care decisions for them (a medical power of attorney) and to provide them some guidance and direction about end-of-life choices (a living will).

This dementia directive has been in the news lately and has been the subject of a couple posts in my listserve communities.  A CBA subcommittee has been formed for this topic, with the goal of providing a suitable form for clients, and yours truly is part of the subcommittee.

So, a dementia directive is a medical directive?

The answer here is a bit tricky! Why? AD is a neurological disease which is generally covered by a medical directive, but there is also AD with behavioral disturbance.  The dementia directive falls in the rift between neurology and psychiatry that was created in the last century.  For our purposes in Colorado, it appears to fall under the category of advance medical directive, but in other states such as Washington, the dementia directive is a mental health directive.

More about the nuts and bolts of the contents of the dementia directive in my next installment!

© Barbara E. Cashman and www.DenverElderLaw.org  2019. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Barbara E. Cashman and www.DenverElderLaw.org  with appropriate and specific direction to the original content.

Will you need a dementia specific advance directive?

Reflection on a Lake

Are you one of the few and one of the brave who is willing to talk openly about dementia – specifically what kind of care you want and how you want your health care agent to decide for you in the event you have dementia?  Based on stats from the summer of 2017, fewer than one-third of Americans have executed a living will.

So, if you are one of those persons, this series of posts is for you!

By midlife, many of us have had some personal experience with a family member or loved one with dementia.  The disease Americans are most afraid of is the dreaded Alzheimer’s Disease (AD for short) or some other form of dementia.  For some of us, it overshadows even the fear of death.  Perhaps this is because that dis-integration of the brain causes us to forget the most basic of things – who we love, what we like to do, what is our identity, and even how to die. 

In our brain-centric culture, which so often takes a reductionist view of the body as a kind of machine (e.g., the heart is only “a pump”), to lost one’s mind is the most fearsome of possibilities.

 How will you know whether you might need a dementia advance directive? [Yes, it’s a trick question….]

Over the years I have worked with a couple clients who have been diagnosed with early stage AD.  These are typically the folks who are recruited to participate in studies involving the progress of the disease and new therapies.  Informed consent for voluntary participation in these studies can be challenging. Here’s a link to an informative background paper from the 2017 Research Summit on Dementia Care, through HHS.

What are our choices?

Do nothing and hope for the best. 

This is what most of us will choose by default.  “My kids will know what I want,” I’ve heard said with a shoulder shrug.  Really? How much more difficulty do we want to add to an already challenging situation?

Can’t I just rely on people I’ve already put in charge who know me to make the right decisions for me?

Yes, of course, as long as you have the documentation in place.  Most importantly a health care power of attorney, which names a person (an agent) to make decisions for you in the event you cannot give informed consent for medical treatment.  The health care provider is the person who decides whether a person can give informed consent.

You must rely on others, because dementia is a scenario which will leave many of us very vulnerable and unable to manage things on our own.  There, I’ve said it.  Is that really a fate “worse than death?”  There is an inherent dignity of human beings, regardless of our “cognitive status” or whether we have trouble thinking or remembering.

What do I need to consider to put in this dementia directive?

This is some heavy lifting…. Let me start with a bigger picture.  I enjoyed reading a recent New Yorker article by the late neurologist and writer Oliver Sacks which recounted the activities of two different patients with dementia.  One was a doctor who had been the medical director of a hospital where Sacks had worked.  Despite his mid-stage dementia, the doctor had periods of relative clarity where he believed he was a doctor at the hospital and would write prescriptions.  This was intermittent, however and some of the time the doctor was painfully aware of his predicament and his mounting losses. The article poses the basic question about how to treat someone with AD, do we honor the persons dignity and support them, to the extent feasible and appropriate, in the belief that they can still perform the job that served as the cornerstone of their identity?

This can be a tricky conversation, but of think of a relative who died in a facility from AD.  After she lost most of her ability to speak and communicate with others, she retained a decent command of her fine motor skills.  She had been an expert seamstress and embroiderer and my cousin reported how happy and occupied she was when she was given a knotted up necklace chain to untangle.

Okay, back to the response to the third question.  There is a big difference in a dementia directive between expression of a “freedom to”  in terms of what a person wants provided for them in the type of dementia care, and the right to express preferences which are a “freedom from” a statement of what is not wanted in advance of a time when we may no longer be able to object to such interventions planned or carried out “for our own good.”  How much can we describe and determine in advance and what will actually “stick” in terms of the two competing positive and negative statements?  Well, that’s a topic for my next post!

© Barbara E. Cashman and www.DenverElderLaw.org  2019. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Barbara E. Cashman and www.DenverElderLaw.org  with appropriate and specific direction to the original content.

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

What Might Guardianship Reform Look Like?

Sienese Sculpture

 

What would a change in our guardianship law in Colorado mean?  Well, that depends! In my previous post about guardianship reform I looked at it in general as well as its application to Colorado.  In today’s post I’m asking some additional basic questions, which are aimed at making some fine-tuning adjustments where our present law doesn’t appear to suffer any major shortcomings.

How Can We Appropriately and Affordably Assess a Person’s Capacity?

Last month I attended a meeting of the UGCOPAA subcommittee of two Colorado Bar Association sections.   We are tasked with looking over the proposed uniform law’s provisions and we discussed some of the UGCOPPA’s provisions concerning the role of evaluations – like neuropsychological evaluations to assess a person’s functional capacities to perform different cognitive tasks of a person’s capacity.

How can we ensure that a capacity assessment is “good enough” for purposes of a court’s determination regarding whether a person is incapacitated or whether a person could benefit from assistance for particular tasks or function – something short of an unlimited guardianship and what will later be discussed as a kind of “other protective arrangement?

What Are the Implications for Going Beyond a “Physician’s Letter” that Are Currently Used to Support a Petition for Guardianship?

In Colorado, our law presently disfavors the imposition of plenary or unlimited guardianships over limited guardianships.  But – and this is a big caveat – the difficulty, particularly in addressing the circumstances of an elder with worsening dementia, is that it may sound like a good idea to have a limited guardianship but such arrangement may not be workable on a practical level because it might require the court to revisit the person’s needs as they increase and require more support from others which would not be contemplated in a limited guardianship.

Will the cost for getting a “good enough” evaluation make the proceedings too expensive?

The challenge here is how to make the laws accessible but still affordable for states with tight judicial resources. Easier said than done! I don’t think it would be a good idea to have a law which is an “unfunded mandate” in this context!

In case you’re wondering what is going on in the rest of the country regarding “guardianship reform,” there are some recently updated resources from the American Bar Association’s Commission on Aging.

Remember that the “guarding the guardians” theme is nothing new for guardianship legislation.  Over the years, studies have been performed to assess the effectiveness of monitoring and oversight by courts, as well as training and accountability for court appointed fiduciaries (including guardians).  There have been a number of national guardianship conferences (including those known as “Wingspan”) in which specific recommendations have been identified, which have included those concerning monitoring  by courts.

The National Center for State Courts also has a Center for Elders and the Courts webpage, which contains useful resources including an elder abuse toolkit and an elder abuse curriculum.  What we’re really talking about here in guardianship reform is about preventing elder abuse.  But it is complicated because the definitions concerning what constitutes elder abuse are inconsistent among states and federal law.  I do not want to diminish the importance of looking at reforms for state guardianship laws, but in my experience, the detection and reporting of elder abuse is a far more challenging and pervasive problem.  Ensuring that the civil rights of elders are protected requires us to look at the big picture in this regard, so that is what we are doing.  More on this topic next time….

© 2018 Barbara Cashman  www.DenverElderLaw.org

Does Guardianship Law Need Reform in Colorado?

guardianship reform

At the Threshold

This may seem like a pretty basic and simple question, maybe too simple for some – but it lies at the heart of a debate currently raging in many parts of our country.  A couple axioms come to mind here – first: “don’t throw the baby out with the bathwater;” and “if it ain’t broke, don’t fix it.”  I don’t want to appear trite here, but we do first need to identify and distinguish the baby from the bathwater so to speak, as well as identify the system (which is imperfect as all systems are) and/or its parts which may be working as anticipated or which are in fact broken.

So what is it that people mean by “guardianship reform?”

Well, it depends on who you ask! I like this definition of law reform:

Law reform is the process of analyzing current laws and advocating and carrying out changes in a legal system, usually with the aim of enhancing justice or efficiency. By promoting and executing changes in a legal system, individuals and groups can implement changes in a given society. Law reform can be achieved through litigation, legislation, or regulatory change, and often requires the collaboration of a variety of groups in different practice settings. Law reform may also be defensive – stopping changes in existing law through litigation or legislative advocacy.

Here is an explanation on the need for guardianship reform as explained by the National Academy of Elder Law Attorneys (NAELA), of which I am a longtime member:

Guardianship is an ancient legal device dating back to early Greece and the Roman Empire.  It protects at-risk individuals and provides for their needs.  At the same time, because it removes fundamental rights, it should be considered a last resort when no appropriate less restrictive alternatives are available. With the aging of the population and rising numbers of persons with mental disabilities, adult guardianship has received increased scrutiny in the last 25 years.  The history of guardianship reform shows a marked advance in law but uneven implementation in practice. Guardianship reform laws have focused on five related areas:

  • Stronger procedural due process protections in the appointment process;

  • Changes in duties and powers of guardians, and provisions for limited guardianship orders;

  • Guardian accountability and court monitoring; and

  • Public and agency guardianship.

With the “silver tsunami” of aging baby boomers, there can be no doubt that more attention and resources are needed to address this challenge for each state and the federal government (which has its own system for its programs) of crafting a workable and cost-effective legal framework which honors human dignity, protects fundamental rights of elder disabled or incapacitated persons, provides accountability of court-appointed fiduciaries (guardians and conservators) and honors other important values.

Is Guardianship Usually Considered a “Last Resort?”

As an attorney practicing in this field and appearing regularly in probate courts, I can say that under our statutory framework (the Colorado Uniform Guardianship and Protective Proceedings Act or “CUGPPA”), as evidenced by the Colorado State Judicial Department’s proscribed form for a Petition for Guardianship, as consistent with applicable case law, and as a result of certain judicial officers questions posed to counsel and interested parties to a protective proceeding – the imposition of a guardianship is a last resort.

When I counsel clients for estate planning and we discuss the importance of durable powers of attorney, I stress the importance of choosing the right person to serve as agent.  I also state that in nearly all cases, the powers of attorney will work as intended if the need for them arises – but I also caution clients that while a guardianship or conservatorship may be the “nuclear option” in many scenarios, it is sometimes the only effective means to protect a vulnerable adult from the influence of or exploitation by another.  Sometimes I have had to explain in court documents or to an inquiring judicial officer why the power of attorney is not working as intended.  These types of situations can be quite complicated and usually involve some family dysfunction that is expressed as one person’s (often an adult child of an elder) need to try to control a situation or the actions of or access to an elder parent.

Notwithstanding these considerations, once a determination is made that an elder adult is incapacitated and in need of protection, there is supposed to be a range of alternatives which a court can order, ranging from a limited guardianship to an unlimited or “plenary” guardianship.

But a limited guardianship is generally considered unworkable because of the myriad challenges to and difficulties of monitoring a limited guardian’s exercise of authority.

As for the unlimited or plenary guardianship, I would say that this has become the “default” type of guardianship imposed.  This is where my concern about civil rights for elders resonates and why I am looking closely at the new legislation put forward by the Uniform Law Commission (the Uniform Guardianship, Conservatorship, and other Protective Arrangements Act or “UGCOPAA”)  for adoption by the states.  The National Center on Elder Abuse has a helpful document which summarizes the goals of the new model legislation.  The American Bar Association urges support of the UGCOPAA for its provisions regarding “supported decision making” as a less restrictive alternative to imposition of a guardianship.

What Do Abuses Have to Do With the Need for Systemic Reform?

My question here is again a basic one.  There can be no doubt that the incidences of overreaching or financial abuse by court-appointed guardians must be remedied, particularly where a state court’s system allowed for such abuse to take place because of the lack of systemic protections of elders’ civil rights including due process.  One of the most infamous examples of this was described in The New Yorker article “The Takeover,” written by Rachel Aviv, a chilling true story which recounts in detail what happened to an elderly couple (and several other elders) in Las Vegas, Nevada and how their daughter was powerless to protect her parents.

I have had a couple clients ask me whether that Las Vegas-style abuse could happen here in Colorado.  I believe it could not happen here, but I remain concerned about the protection of elders’ civil rights.  Remember that the guardianship proceeding is essentially an extinguishment of an elder’s civil rights!

But there is a separate consequence at issue here – once a guardian or conservator is appointed by a court, there remains the issue of court oversight of the appointed fiduciary and this is another place where things can get difficult.  Here’s a link to a recent NY Times article which contains some alarming statistics about the amount of money that has gone missing in reported cases of guardians stealing from their wards.  In each judicial district, Colorado maintains a probate monitor whose job it is to ensure that guardians and conservators (particularly the latter as they manage finances for a protected person or ward) provide the necessary information for filing the required reports.  The Colorado state judicial branch monitors probate cases in other ways as well.

In my next post in this series, I will examine some of the abuses which have been uncovered and publicized and put forward as compelling reasons for guardianship reform.  I wish everyone a happy new year!

© 2017 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 Veterans and Elder Abuse

prevent abuse of elder veteran

ROTC picture of my Dad, who became an officer of the U.S. Army Air Corps

In observance of this Veteran’s Day, November 11, 2017, I wanted to share a blog post on this topic as well as some valuable resources.

“Boots on the Ground” to Prevent Exploitation of Elder Veterans

I want to begin with a shout-out for: Boots on the Ground – Fighting Financial Abuse of Elder Veterans by Tamari Hedani, Associate Director of the Elder Abuse Prevention Program at the Institute on Aging.

Fraudsters and Scammers Often Specialize in Particular Target Communities

Financial predators often “specialize” in identifying their victims by targeting specific populations and communities.  We know this is true for elder veterans.   I recently read an article about the “ghost scam” in New York City, where elder Chinese immigrants have been victimized by well-organized groups of scammers looking to take advantage of a common language and cultural ties for the purpose of stealing money from the immigrants.

Some People Who Claim to Be Offering Assistance to Elder Veterans Are Looking to Take Advantage of Them

There is an unfortunate variety of elder financial exploitation among the community of elder veterans.  Keep in mind that it is against the law to charge veterans or their families to fill out paperwork for the purposes of applying for benefits, and veterans and their friends and family members need to be reminded of this.  There are firms who do attempt to charge money for these services, and they should be reported, along with any kind of suspected fraud.

Fraud against veterans can involve variations on an old scam and involve bad advice concerning eligibility and result in financial windfalls for the seller of annuities or insurance.  The AARP warns in a recent post of four types of scams: the “cash for benefits” scheme; the “update your military file” scam; charity scams involving money for sick  or disabled veterans; and the “Veterans Choice Program” scam.  but worse yet are the pension poaching scams and other financial abuse of elder veterans.  Here is helpful information  from the Center on Elder Abuse about what a retired veteran needs to know before assets are transferred in order to qualify for benefits.

Whether Elder Veterans Are Aging in Place at Home or Living in Communal Settings, Important Resources Are Available to Assist in Detecting and Reporting Suspected Abuse or Exploitation

On the topic of benefits, the Veterans Health Administration (part of the Department of Veterans Affairs) and the U.S. Department of Health and Human Services developed the Veteran Directed Home and Community Based Services program to provide wider choices concerning long-term care services and living at home as long as possible.

Elder veterans and their loved ones have resources available to assist them in detecting and reporting elder exploitation and abuse.  This flyer from the US Department of Justice’s Elder Justice Initiative contains phone numbers for immediate assistance and other helpful contact information for veterans.

© 2017 Barbara Cashman  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