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

 

 

Capacity and Incapacity in Context

Maigue Swan

 

Capacity is not some dusty old legal concept! In this post I revisit some implications encroaching incapacity or. . .  the “dark side” of our longevity.

The issue of capacity basically concerns judgement – the ability to reflect on and consider decisions required for daily living.  When one lacks that capacity (or is deprived of it) the validity of some actions taken or decisions made – which have legal implications – can be called into question.  This capacity discussion is likely to become more commonplace as more baby boomers move into retirement years and greater longevity…

Here’s a definition of capacity referring to Black’s Law Dictionary:

Legal capacity is the attribute of a person who can acquire new rights, or transfer rights, or assume duties, according to the mere dictates of his own will, as manifested in juristic acts, without any restraint or hindrance arising from his status or legal condition. Ability; qualification; legal power or right. Applied in this sense to the attribute of persons (natural or artificial) growing out of their status or juristic condition, which enables them to perform civil acts; as capacity to hold lands, capacity to devise, etc.

Capacity includes the ability to behave rationally and exercise one’s own judgment (for better or worse).  Certain matters which typically adversely impact one’s otherwise presumably intact capacity include: mental disorder, developmental disability, intoxication, injury affecting one’s cognitive abilities, or the course of a disease process.

Reference to judgement capacity (or the ability to process information) is a legal notion often coupled with or inclusive of a functional (objective) capacity assessment.  This is because so many of our human “doings” can require distinguishing (as our law does) between when we can manage and when we can’t.  The term “capacity” by nature refers to an ability.  I won’t go into any discussion about the nuances and historical underpinnings in the law relating to capacity as distinguished from competence.  If you want to read further on that topic, check out this entry from the Stanford Encyclopedia of Philosophy on decision-making capacity.

So – how do we move from being presumed to have capacity to being legally incapacitated?

Where an adult has diminished or diminishing capacity, the law makes reference here to the “least restrictive means,” a concept borrowed from disability law.  For Colorado adults who are determined by a court to be incapacitated, there is a finding by the court that “the ward is an incapacitated person and the ward’s needs cannot be met by less restrictive means, including the use of appropriate and reasonably available technological assistance.”  See JDF 848, Order Appointing Guardian for Adult.

Because my practice focuses on elder law and probate, most of the petitioners whom I represent file petitions for guardianship (or conservatorship) concerning elders who have “slipped” in their capacities to manage for themselves, meaning the individual no longer has sufficient capacity to manage their affairs or make important decisions on their own.  Many of these elders are at risk of financial exploitation as a result.  I have also represented petitioners who are often parents of developmentally disabled young adults.  The distinctions among them, as for elders, are varied and numerous.  Suffice it to say that sometimes, for younger adults, it may be easier to establish grounds for a limited – as distinguished from the much more commonplace unlimited guardianship.  In the former there can be specific references to supports to help facilitate an adult’s capacity(ies).  Unfortunately, limited guardianships remain rare birds for a number of different reasons.

  Capacity in Daily Living

To bring this discussion back to the practical level, I not that one’s capacity to “live independently” or perform the activities of daily living (ADLs) are often part of the incapacity picture as well, but this is generally due to a concern for an elder’s self-neglect.  With regard to an elder who is named as a respondent in a petition for guardianship, the elder’s physical capacity or incapacity is generally irrelevant in determining incapacity unless it substantially affects his or her ability to make or communicate important decisions regarding his or her person, family, property, or results in self-neglect.  Physical impairments alone are often of limited import in the guardianship context, as evidenced by reference in Colorado law assistive devices and technologies and the preference for least restrictive means, but in making the determination of incapacity, reference is made (as stated above in JDF 848)  to those assistive technologies.

Another context for elders and capacity which is receiving more attention is the issue of consent for sexual relations.  I would imagine that the free-loving baby boomers will test their adult children’s tolerance and demand that more attention be paid to this aspect of living in a communal or institutionalized setting. Read a recent study about the generation gap in attitudes and practices of extramarital sex here.  A couple years back I wrote a blogpost on this topic and also about a husband in Iowa who was prosecuted for allegedly sexually abusing his demented wife.

Suffice it to say that this debate is ongoing, particularly as more institutions look to provide more person-centered care for residents who still enjoy physical intimacy.  Some of these folks have dementia or other cognitive impairments which can affect their ability to consent.  Do not underestimate the “eeewww” factor of many of these folks’ adult children who would rather not be informed of mom’s recently contracted STD or consider that an elder parent is sexually active!

We must remember, even when an adult is determined to be incapacitated for purposes of imposing a guardianship, what can still remain intact is that person’s capacity to express a preference as to the person who will serve as guardian.  In In re Estate of Runyon, 343 p.3d 1072, 1077 (Colo.App.Div.4 2014), the court held that

a finding that the respondent is an “incapacitated person” within the terms of the statute does not necessarily mean that the respondent lacks sufficient capacity to express a preference as to a guardian or conservator.   Neither the definition of incapacitated person nor the criteria for appointment of a conservator automatically exclude the ability to make a rational choice as to the selection of a guardian or conservator. Therefore, an incapacitated person may “still be able to express an intelligent view as to his choice of guardian, which view is entitled to consideration by the court. (Citations omitted)

That’s all for now and thanks for reading!

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Colorado End of Life Options – A Follow-Up

denver elder law

Spring Orchid at DBG

 

I’m writing this as a follow-up to my last post, which elicited a heartfelt comment from a subscriber and a fruitful discussion on LinkedIn. . .

Voluntary euthanasia is when death is chosen by a person, when they are killed with their own expressed consent.  These types of requests and the consent needed for such must be clear.  To review a bit – passive euthanasia is when a person makes an advance directive in the form of a living will in which the person indicates the level of medical intervention – or lack thereof – in the event they are in an end-of-life scenario.  In the Colorado Medical Treatment Decision Act, Colo. Rev. Stat. 15-18-101 et seq., we distinguish between persistent vegetative state and terminal condition as the triggering circumstances for the application of the living will.  Persons dying according to the terms of their living will may direct in advance the withholding or withdrawal of certain medical interventions which would tend to prolong or sustain life. The Living Will is in essence a statement of wishes and the persons involved in providing for assisting with another’s grave medical condition must be aware of its existence and its contents.  Unfortunately, what sometimes happens is that an elder goes to a senior center or some other place to fill out a living will form, but the elder neglects to inform their family members they have done so.  No one knows of its existence or contents and so it is of no value.  This is why having “the conversation” – especially with one’s health care agent – is so valuable!

So, let’s get on with the discussion at hand.  Many of us have experience with active euthanasia in the form of “putting down” a beloved pet.  When my dear old dog Pepper was nearly paralyzed, we made the decision to euthanize her after considering the alternatives.  When two of my sons and I were with Pepper at the vet’s office (sitting on the floor with her, stroking her and telling her how much we loved her), she was injected with the drugs that would end her life.  The vet commented to me – “I wish we could do this for people.”

This is the paradox of passive and active euthanasia – that active euthanasia is more humane in that it hastens the death to alleviate the suffering, while passive euthanasia requires the withholding of the means of sustaining life – which means a person can go quickly if they are dependent on breathing support or. . . .  they will slip away slowly as they starve to death.

It occurs to me that many of us don’t think of the living will as a statement as to the form of euthanasia preference – or if there is no preference for such.  Is the living will a document that tells our loved ones to “let us go” or is it a document that gives the patient’s preference as a statement of self-determination, to be free from the unwanted interference of others?  Can it be both?

There are of course a wide variety of living will forms available.  While the documents are acceptable forms of stated preferences regarding euthanasia, different religious communities have their own preferred documents in compliance with their laws or traditions.  What is the distinction between letting someone die by not intervening and allowing a person to die by their own choice with the assistance of a doctor?  Is there really a bright line between the two?

Getting back to the “letting go” versus “self-determination” purposes of the living will, how do these play out in the context of active euthanasia or physician assisted death (as in the Colorado End-of-Life Options initiative)?  These tensions are even more pronounced in this context.  Where is the distinction between one’s not wanting to be a burden on loved ones and the subtle coercion that a gravely ill person may feel to “get on with” dying so that their loved ones can be liberated from the burdens of caring for the sick person?  I certainly am not suggesting answers.  What I am concerned about is that people seem to look for answers without regard to the question and what it entails or requires.

An exclusive focus on the self-determination rights of gravely ill people to be statutorily allowed to take their own lives – with the assistance of medical doctors – skews the discussion.  I liked Jennifer Ballentine’s article entitled “Law & Sausage: Physician Assisted Death and the Solution to Suffering.”  You can read it here.

The attraction is clear – to focus on the individual right to extend medical self-determination to include physician assisted death is a very American pastime!  We have a long tradition of championing and enshrining individual rights.  But in the context of active voluntary euthanasia, or end of life options, such exclusive focus myopically steers that discussion away from the critical context of the exercise of such a right [author’s disclaimer: I wear corrective lenses for correction of nearsightedness].  This right would certainly not exist in a vacuum.

I don’t think it is too much to consider a look at the bigger picture here and to identify in advance of our ballot choices this November the many unintended consequences which would flow from our choice.

© 2016 Barbara Cashman  www.DenverElderLaw.org

Did You Know October is Conflict Resolution Month?

Cloud Above Santa Maria degli Angeli

Cloud Above Santa Maria degli Angeli, Assisi

 

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

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

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

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

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

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

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

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

©Barbara Cashman  2015   www.DenverElderLaw.org

Advance Health Care Planning and the Death Taboo

Summer Flowers

Summer Flowers

Early on in my blog on this website, I wrote a post entitled Law as a Healing Profession, which included a discussion of a law review article by Mark Glover, author of  “A Therapeutic Jurisprudential Framework of Estate Planning.  So I turn again to the big picture of our culturally-accepted death denial and look at the context for some documents that lawyers often prepare to help clients cope with this uncertain enterprise known as life.  Yep, there’s another law review article I’m considering as well – this one entitled “In Denial: The Role Of Law in Preparing for Death,” by Barbara A. Noah and published at 21 Elder L.J. 1(2013) and which you can read here.

Many baby boomers are facing end of life questions and responding with a conversation with family members or loved ones about their wishes.  This is a very positive step.  The conversation must be had many times over the course of our lives, so we know what we want and communicate those wishes to others.  There are different motivations for these important conversations, which are often the result of unsettling experiences around an elder parent’s death, and which compel a person to do things differently.  These conversations are important and invaluable for families and communities, however there is still much death denial.  For a different treatment of the question of death denial, read “Confronting the Cadaver: The Denial of Death in Modern Medicine.” Death denial is found in many places in our culture, it is particularly prominent in our technology centered medical model.  How we have come to be estranged from death has much to do with the fact that most of us don’t have much experience with family members dying at home as this is typically left to the medical professionals to manage, which separates us from the passing of a loved one and what we often feel as our helplessness in the face of encroaching end of life.  The fact is, no one, no institution or technology can protect us from death.

Whose denial is it anyway?  It isn’t just a modern American phenomenon – the death taboo has relevance in many aspects of other cultures and traditions.  Wellness, disease and dying can also be understood in the broader context of medical anthropology, which often informs thinking around the dying process and death.

But even amidst the further study of death denial and criticism of its power to alienate us from life – has much really changed since Ernest Becker’s groundbreaking 1973 book The Denial of Death,  where Becker attributed the materialistic high-tech nature of modern life (I would call it post-modern, to be more precise) that left us in the shallows searching for the meaning, the missing depth of life in the context of inevitable death.  Fear and anxiety are like sharks there in these shallows, terrorizing many of us into a state of helplessness and feeling out of control.  It is one vicious cycle.  In our autonomy-valuing, action-based view of choosing what our lives are, isn’t death the ultimate indignity, particularly when it comes at the end of a disease which we may view as being one that robs one of autonomy and dignity.  Yes, I’m thinking of the ill-fated “death with dignity” bill that made it to a second reading in our legislature in Colorado.  The whole idea behind the “dignity” described in that proposed legislation was to preserve the dignity of a person’s ability to choose, to do something in response to the indignity of disease and its quality of life robbing advance.  This is human dignity that is focused exclusively on the “human doing” and not the “human being” so to speak!

Whose death is it which we confront?  Can we really be present for another’s death if we don’t really know how to do that?  Here’s an article from a nursing journal about death anxiety.

There are many other interesting developments taking place in many communities across the country which respond to the alienation from death by making it part of our lives once again.  I’m thinking here of home care for a recently deceased person, a DIY funeral care in one’s home as well as wider involvement of those who have come to be known as “death doulas” or midwives to the dying.  You can read a recent New York Times article on this topic here.

I’m sure I’ll be writing more soon about how many of us are reclaiming the use of ritual around end-of-life care and the dying process and also the re-sanctification of the dying process…

©Barbara Cashman  2015   www.DenverElderLaw.org

Dementia and Memory: Out of Time, Out of Mind II

Mount Hope Angel

Mount Hope Angel

This second part of the post focuses a bit more on the qualitative aspect of memory – memory as meaningful life activity, not just a necessity of daily functioning and detail management that holds together moving parts.  I will include the quote from James Hillman I used in my first post:

Why do the dark days of the past lighten up in late recollection?  Is this a subtle hint that the soul is letting go of the weights it has been carrying, preparing to lift off more easily?  Is this a premonition of what religious traditions call heaven, this euphoric tone now coating many of the worst experiences, so that there is little left to forgive?  At the end the unforgiveables will never be forgiven, because in old age they do not need to be forgiven: they simply have been forgotten.  Forgetting, that marvel of the old mind, may actually be the truest form of forgiveness, and a blessing.

Hillman, The Force of Character at 93.  In case you’re wondering about whether I am promoting some Romantic view of memory or denying all the recent advances in neuroscience, I would unequivocally state “no.”  In fact, a favorite of mine in that discipline is Dr. Norman Doidge’s book published in 2007 entitled The Brain That Changes Itself.  Particularly instructive for purposes here is his chapter entitled “Turning Our Ghosts Into Ancestors,” about psychoanalysis as a neuroplastic therapy that helps a sixty-year-old man recover long-buried memories of the death of his mother (when he was a small child) so they could be transformed and improve his relationships and life.

I think part of what Hillman is talking about is that quality of memory, which often gets neglected in our present culture that glorifies the person as a right-bearing agent of our own destiny, valued for capacity, independence and measurable productivity.   This makes me think of Massimo Cacciari’s book The Necessary Angel.  I find intriguing what he says about our space-filling tendencies of this modern obsession  we have with chronological time, especially where he observes that “the greatest idolatry is the cult of the has-been of the irreducible it-was.”   Cacciari at 51.

If this obsession of the factual, objective or “forensic” memory is idol-worship of the “cult of the has-been,” and indeed widely and universally worshipped indeed as “chrono-latry,” then might the recognition that letting go of details that do not serve life review and accumulation of wisdom be an appropriate response to that greed, of releasing the power of the idols?  If we as human beings are more than our personalities accumulating and exchanging our experiences as a form of “currency,” then recognizing this and getting past the worship of the idols of chrono-latry would look like progress!

One very important aspect of the quality of memory for many elders is as a part of life-review, of integration and wisdom acquisition and consolidation.  Another of the qualities of memory is kairos.  It strikes me that our generation’s dependence on smartphones means that many of us need to memorize fewer of the important operational details of our lives.  This is of course liberating, but it is also a trade-off.  No, I won’t go astray here to discuss that issue!  Suffice it to say that the term “memoria” in the Western classical tradition is based on the Latin term for memory.  Memoria was one of the five canons of rhetoric, which grew out of oratory.  The classical orators used no notes, let alone Power Point slides!  I add this point to draw the connection between memoria and kairos – I’ve blogged about it previously.  Kairos being the right time, the opportunity, based on an attunement to the right time to recall memory – memory being identified in the Ad Herennium as “the treasury of things invented.”  So perhaps we might come to more closely examine and question our relatively recent and very narrow definition of what is memory and look at the historical notion of memory in its broader context.  This broader view of time in both qualitative and quantitative aspects will certainly diminish the power of the idols of chronolatry.

Yes, this reminds me of the Steely Dan song, Time Out of Mind – you can listen to it here.  This is life review, traditionally a province of poets to write about the letting go at the end of a life and there is thankfully much wisdom from that quarter.

From stanza IV of Dejection: An Ode, by Samuel Taylor Coleridge:

… we receive but what we give,

And in our life alone does Nature live:

Ours is her wedding garment, ours her shroud!

         And would we aught behold, of higher worth,

Than that inanimate cold world allowed

To the poor loveless ever-anxious crowd,

         Ah! from the soul itself must issue forth

A light, a glory, a fair luminous cloud

                Enveloping the Earth—

And from the soul itself must there be sent

         A sweet and potent voice, of its own birth,

Of all sweet sounds the life and element!

 ©Barbara Cashman  2014   www.DenverElderLaw.org

August 6th Interactive Gathering on The Conversation Project

 

denver elder law

DBG Japanese Garden Stream

 

I recently received an invitation for an event at The Denver Hospice (at their corporate headquarters) and wanted to share it with the community.  I have blogged previously about the importance of having a conversation about end of life wishes (and also the need for documents based on that conversation – like a health care power of attorney and advance directives) as well as The Conversation Project and so this cause is near and dear to me.  I won’t be able to attend this event, but know it will be well facilitated by Laurel Okasaki-Cardos, community educator at the Life Quality Institute.  If you are interested in participating, please email Laurel at lokasaki@lifequalityinstitute.org to get more information or RSVP.  You can also call her at 303-398-6259.

In case you can’t attend the gathering at the Denver Hospice on the 6th, Laurel offers these interactive gatherings for groups of seven or more people – free of charge – if you are interested in organizing one for your community.  Be sure to get in touch with her if you want more information.

©Barbara Cashman 2014     www.DenverElderLaw.org

The Insurance Industry’s Response to our Unprecedented Longevity

Denver Elder Law

Monet Garden Pond with Chihuly Glass sculpture, DBG July 2014

 

This post is about the insurance industry’s response to our unprecedented longevity.  Hmmm. . . . puzzling over the title of this one?  Well, a couple interesting insurance developments have made it onto my radar screen recently and so I thought I’d write a post about them.  I’ll focus on two in particular:

  1.  Flexible long-term care insurance

We used to have a much larger number of companies offering long-term care insurance in this country, about 100+ ten years ago and now it seems we’re hovering around a dozen or so companies offering the policies.  But it is important to note that there are still many misconceptions about long-term care insurance.  Many people still mistakenly think that Medicare will cover this (it doesn’t) and that there will be plenty of Medicaid beds and service providers if they need care (the Medicaid coffers are still shrinking and doesn’t coordinate well with Medicare).  I recently read about the prediction that the Medicare trust fund for hospital benefits will be depleted by 2026.  Ouch! if I’m lucky enough to still be here, I will be eligible for social security benefits the following year.   For a variety of reasons, long term care insurance has never really “caught on” in this country, at least in part due to the misconceptions that someone else will be able to pay for it if we are unable to pay and in need of such care.  It also has to do with the fact that paying for these premiums is for providing the care that we hope we will never need to receive.  But bottom line, it is about not being a burden on your family members – from a financial, medical or emotional perspective.

There are many different types of LTC policies available, with more variety than ever.  This makes it even more important to understand and know what kind of policy it is you are purchasing and that it is the right one for your situation.   As the number of old elders (80+) continues to grow, Long term care insurance still has hurdles in selling to the baby boomers.  What happens if you pay all those years for coverage and then can’t afford the premiums anymore?  What happens if you pay all those years and then die without ever having used any benefits?  These and many other questions are now answered in new and interesting ways thanks to new and varied option for LTC.  A standard feature of most of the new policies is that they provide coverage for home care, which can be more expensive than staying in a facility – so it’s not just “nursing home insurance” anymore.  There are a number of different products available, so be sure to start with some good information about the basics  of how these policies work.   It is a good idea to remember that health care in this country is not cheap, and Medicare and “Medigap” only get you so far.  And in case you’re wondering whether I am trying to “sell” LTC, I’m not – there are still plenty of risks involved in both purchasing the policies and investing in the companies offering those policies.

Bottom line is, the best way to ensure that unforeseen medical consequences do not decimate your financial well-being or that of you spouse as a result of the need for long term care – is to carefully consider your options now so that when you decide to make a choice, it will be a considered one and not made under the duress of crisis.  Thinking about these matters now lessens the burden on your family members or loved ones in dealing with difficulties in the event they arise in an uncertain future.

  1. Longevity Insurance

Where did this new product come from?  Changes in tax rules!  This kind of insurance is essentially protection against running out of money in our ever-lengthening old age.  Since none of us knows how long we will live, whether we will have saved enough for retirement, along with a few other life-altering details along those lines . . .  this insurance looks to have big potential.  Couple that with the emotional attractiveness of annuities, and we’re off to the races!  Check out this recent NY Times article about some of the rules for these policies as retirement tools.  What makes these policies “new?”  The article considers the previous prohibition against using these annuities within retirement plans due to required minimum distribution rules.  With the rule change “workers can now satisfy those rules if they use a portion of their retirement money to buy the annuities and begin collecting the income by age 85.”

But keep in mind that the sky is not the limit here and retirement plan participants can use no more than 25 percent of their total account balances, or $125,000, to buy the annuity, whichever is less.  If you are considering these, you will want to carefully read all the fine print concerning these new vehicles.  What is helpful to know is that, for the Americans that have saved some money for retirement (sadly, only about one-half of American households have a retirement account beyond social security), there are more options available.

©Barbara Cashman  2014   www.DenverElderLaw.org

 

 

Elderhood as a Life Stage: The Power of Naming (part 2)

Roses of a Certain Name

Roses of a Certain Name

Where is this place – old age?  In the first post I looked at the power of naming and how we often use and misuse it in the context of challenges presented by aging.  Here in the second post I will explore the individual and collective means of naming in the context of old age, vulnerability,  elder abuse and other kinds of naming and identity. Did I mention there will be a part three?

One of the losses many elders face is a loss of place, of the previously recognized or accustomed stature and home  – at least in the generally recognized sense of the term (if there even is such a thing).  I have blogged about Eric Erikson’s stages of the life cycle (psychosocial) development and his wife and collaborator Joan Erikson’s addition of the ninth stage when it became apparent that the eighth stage didn’t really cover the breadth of longevity in the context of all the physical challenges and responses to those that an old (80’s-90’s) person and body often faces.  I find it interesting that the ninth stage also denotes a shift in the trust/mistrust pole, where a physically and socially vulnerable elder can come to mistrust their own abilities and capabilities as well as those of the environment in which the elder finds him or herself.

So, instead of asking oneself “what do I want to be when I grow up?” a related question may still be forward-looking – as distinguished from backward-looking, but it involves our continued functioning and capacity.

            •           – Which parts of our selves (including our bodies) and our relationships still work and which don’t?
            •           – What awareness do we have or are capable of having over these losses or compromises?
            •           – Well, what if old age is simply too depressing?

A recent article in The Times of India referred to efforts  by HelpAge, an Indian nongovernmental agency, to identify abuse of the elderly in that country, noting that when the study commenced ten years ago, even elders living with families were very lonely and sad.

So where do we as individuals look for guidance to navigate the terrain of Elderhood?

How do we chart the course collectively and collaboratively as a culture and within the bounds of our legal system?  Well, it depends of course.

I think a big part of it concerns how we address these questions involves our perspective on them  Do we look at elderhood  as a window or elderhood as a mirror?

I will note that the either or setup above might just as easily be a “both and” lineup.

The Mirror.  What is the story we already know of ourselves as we approach that officially recognized age of retirement, 65?  Can we manage to arrive at or transport ourselves to Erikson’s eighth stage which begins at 65?  BTW, the eighth stage – the virtue of which is wisdom, represents in Erikson’s “psycho-social crisis” category that of ego integrity versus despair, the significant relationship here is “mankind, my kind” and the existential question for this stage is “is it okay to have been me?”  But I would ask, do we really need to wait that long to get to “wisdom?”  What of those of us who might be stuck in some continuous loop of an earlier stage – maybe the “intimacy versus isolation” stage. . . .

There is also the question of regret, depression and other negative emotions can have on that backward glance at our lives.  But what of those who are still looking forward – perhaps in recognition of Kierkegaard’s observation that while life can only be understood backwards, it must be lived forwards?

The Window.  One of the hallmarks of Erikson’s ninth stage – whether it is an extension or an additional category, is a term which Joan Erikson has provided: gerotranscendence – you can read more about it in this article from the Journal of Aging Studies.

Geotranscendance (yes, I’m spelling it with “dance” on the end, it’s been done before!) is about building on that strength of wisdom from the eighth stage and looking forward and beyond oneself, hence the transcendence.  I thought of the tee-shirt I’ve seen a few times: “old age is not for sissies” when I was reading about Joan Erikson’s description in the ninth state of the daily dystonic element of despair.  Perhaps this means of transcendence is in this respect a means of survival, of going beyond the despair and dis-integration, to look beyond the self for broader meaning.  Maybe I’m straying off-topic. . . .

So how do the eighth and ninth stages factor into the socially-acceptable and praiseworthy paternalism of mandatory reporting statute regarding elder abuse?  Well, I’m afraid they go back to that death denial and youth glorification temple that is such a fixture in our daily modern life.  When we look in the mirror – who is it that we see?  When we look at elders, who is it that we see?  What is our relationship to the world and how do we make sense of it?  First, we give it a name.

Every Judgment is a naming, and every judgment is (or more precisely, potentially is) a name, can become a name.

                                                        Sergius Bulgakov

More about naming and unnaming in the mirror and through the window in my next installment. . . .

 ©Barbara Cashman  2014   www.DenverElderLaw.org

 

This Week: Small Business Week and Elder Law Month

An Irish Ruin

An Irish Ruin

This is an interesting combination topic – don’t you think?  Perhaps you might be thinking that I am taking this whole “theme” thing a bit too far.  Putting together the “Happy Small Business Week” (which I learned about from my Google page on Monday) and Elder Law Month. . . .  Isn’t this a bit of a stretch?!

Why no, not at all!  In fact many folks in the second half of life are shunning retirement in favor of . . . . “risky startups.”  Read the January 7, 2014 Bloomberg article about this here.  It’s no surprise to learn that job opportunities for folks over 55 are “limited” but it was surprising for me to learn that the number of people aged 55-64 has been increasing, with a full 23.4% of them starting their own businesses in 2012.  What is prompting people to do this?  Many have discovered that the retirement benefits that many of our parents enjoyed are simply not on the table anymore.  Couple that with a lifelong yearning to work for yourself, and there you have the boomer startup!  The Small Business Administration is well aware of this trend and has targeted free resources available for this cohort.

Last month I was pleased to present the CLE program at the monthly meeting of the Elder Law Section of the Colorado Bar Association.  My friend and colleague Rick Mishkin gave me a very kind introduction and revealed publicly my secret desire to be a talk show host . . . .!   He was generous enough to update the title of the solo/small firm disability and death planning presentation I have given a few times now to “The Death You Need to Plan for Should Be Your Own.”  As it was the elder law section, which is an interdisciplinary group, there were a few professional fiduciaries who attended the program and a couple of them (one of them a finance person and the other a professional guardian) noted that the materials I shared were helpful to them as sole proprietors who wanted to have some succession or disaster planning in place.  A bar staffer told me the materials would be available on the bar website. I am happy to share these resources with other solo professionals who are so inclined.

Among the small business startups by those underemployed boomers or boomers who just aren’t ready to be retired can be found more than a few businesses targeted at the elder care services field.  There are businesses that are founded on services that most family members that traditionally were largely provided by family members.  With our modern-American and far-flung families, many elders have come by necessity to rely on service providers for many services and support.  In fact, the Eldercare Locator, a public service of the U.S. Administration on Aging has a handy website that can help locate local providers of services including information on Alzheimer’s Disease, health insurance, transportation, housing options, legal assistance and long-term care.  Many of those service providers are baby boomers who found that the service their parent(s) needed was not really available, and so many unique forms of assistance for elders were born from this necessity.

The boomers have a vested interest in how these business developments they are involved in turn out.  They are the “silver tsunami,” which is necessitating a reexamination of resource allocation in services that will be made available to the biggest ever cohort of elders in our country (and many other nations worldwide) has seen.  There are many dimensions of what has been called “the 2030 problem” of meeting the challenges to public policy placed on caregivers and public finances; and to focus only on economic challenges (like issues around raising tax rates while tending to economic growth of service costs at the expense of other forms of social investment along with tending to the well-being of future generations of workers) may be misleading in its simplicity (or not).  This topic is not at all an easy one to identify and discuss, let alone come up with what might be “solutions.”

Another excellent online resource is the American Society on Aging.  On their site is a tab called “business and aging.”  Turns out there are a few discussions of the topic outlined above – how long should a boomer work; will there be enough caregivers to go around when we need them; and what about long-term care insurance issues . . . ?  My favorite item on this site is a video by Katy Fike, Ph.D., a member of the ASA’s Board of Directors entitled “Ten Innovations that Could Change the Way We Age.”  Spoiler alert: one of them is the Google self-driving car!  I think we Boomers have a lot to look forward to in our old age.

©Barbara Cashman  2014   www.DenverElderLaw.org