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

When and How Should Someone Report Suspected Elder Financial Abuse or Exploitation?

Safety in Numbers

My posts about reporting elder abuse remain my most popular among readers and since it’s been a while since I’ve written on the topic, I thought it was time! I get regular calls from people about this question, often from adult children who are concerned about what is going on with a parent.  Plus, I listened to a webinar put on by the ABA last week about recognizing and preventing these scams.  Today I’m focusing on federal programs and resources.  Here’s a link to the US Department of Justice (DOJ) Elder Justice Initiative to get started.

Among the presenters at the webinar were a representative from the Consumer Financial Protection Bureau (CFPB) and a prosecutor from the US DOJ Civil Division’s Consumer Protection Branch.  I mention these two federal resources because most of us tend to focus only on local or state law enforcement when it comes to reporting suspected financial abuse or exploitation of an elders.  One other recent detail popped up on a listserve recently, reporting a scam concerning what was represented to be an “escrow company” to the victim and who told her they were assisting in the sale of her time share in Mexico.  Apparently tens of thousands of dollars were cumulatively wired to the scammers, for the purported purpose of covering taxes and transaction fees.  I searched online and found several posts about these types of scams that sound like perfectly legitimate businesses.  One of these scammers was using the name of a legitimate Colorado business.  Couple this with a scammer’s ability to “spoof” a phone number on the recipient’s caller ID, and it’s a pretty dangerously convincing mix!

The scammers are as familiar as the rest of us with the adage “if it’s too good to be true it probably is,” but some of these scams persist, coming in many new and different forms.  The more troubling scam scenario however is the much more legitimate sounding scam, which doesn’t purport to be a “sure thing,” but instead rely on a common human tendency toward “in for a penny, in for a pound” behavior, or what economists refer to as sunk cost fallacy and psychologists call commitment bias.

Many of these scenarios involve mail fraud and wire transfers.  Read a recent press release from the DOJ about actions concerning mail schemes targeting by foreign nationals.  Last March, the CFPB issued an advisory and a report with recommendations for best practices for banks and credit unions on “how to prevent, recognize, report, and respond to financial exploitation of older Americans. Financial exploitation, the illegal or improper use of a person’s funds, property or assets, is the most common form of elder abuse and costs seniors billions of dollars per year.”  The Advisory, which contains recommendations concerning the development of internal controls for the protection against and reporting of exploitation, training of staff to prevent , detect and respond to elder financial exploitation and using appropriate technology for the detection and reporting to local, state and federal authorities, is available here.  The executive summary of the CFPB’s report begins with an important message:

Elder financial exploitation has been called the crime of the 21st century and deploying effective interventions has never been more important. Older people are attractive targets because they often have assets and regular income. These consumers may be especially vulnerable due isolation, cognitive decline, physical disability, health problems, or bereavement. Elder financial exploitation robs victims of their resources, dignity and quality of life—and they may never recover from it.

You can read more of the report here.

There are many ways that scammers defraud elders and some of these include Medicare, Medicaid and health insurance fraud (which is akin to a form of identity theft), IRS and tax scams, mail fraud and internet scams involving “sweethearts” and online dating, sweepstakes and lottery “winnings” and tech support scam.  The Justice Department also has a helpful roadmap identifying what type of scam and which federal agency to which it can be reported.

One valuable thing for people to consider in reporting an incident of suspected elder financial abuse and exploitation is this: a single victim may not have suffered a devastatingly huge loss, relative to their life savings perhaps, and it may even have been a relatively small loss, but if it is multiplied among a range of victims nationwide, what the scammers take can amount to millions of dollars.  This is why reporting remains critically important.  We are charting new ground here as many facts and figures about the incidence and forms of elder financial abuse and exploitation remain unknown due to underreporting.

That’s all for now.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Successful Elderhood, Autonomy and Driving

 

Columns of Support

Columns of Support

Last week I was driving from my office in Littleton to my dental appointment in southeast Denver. I took a familiar route, proceeding down the twists and turns of Monaco Parkway as I proceeded north of the Denver Tech Center. I’m not in the habit of recounting my driving experiences in these blog posts, but that afternoon was different because I called 911 while underway.  . . . There was an elderly driver who was driving in the parallel northbound lane alongside me for several blocks and then he moved over (negotiating the median in a sort of left turn) to the southbound side of the parkway as he proceeded northbound (at 30 mph or better). Luckily there were no cars for the four or so blocks he drove down the wrong side of the parkway, so a head-on collision was avoided.  He corrected himself and ended up driving behind me for several more blocks before turning off from Monaco Parkway. I didn’t think it was a drunk driver – I suspected it was a confused driver.  Just a couple days before a colleague from one of my listserves had asked me about what could be done regarding contacting someone about an elder he knows who has much difficulty operating a motor vehicle.   This is a tricky matter!  He forwarded me the email he received from the commander of the metro district for the Colorado State Patrol, which advised him to

Dial *CSP(277) from a cell phone if you observe dangerous driving behavior.  Of course, if the situation rises to the level of an emergency, you can always dial 911.  These situations are particularly difficult as pro-actively requiring a person to submit to a re-exam for their driving privilege can only be initiated by a family member or a physician.  Law enforcement can make the request but only after observing driving actions that would support the need.

I was reminded of the 14-year-old boy who was killed in southeast Denver by an 81-year-old driver with a history of driving problems.  This issue of when it is time to turn over the car keys is a difficult one for many elders as well as their family members because alternative transportation arrangements are required to get the elder to the grocery store, appointments and other places.  Many elders will not willingly give up their car keys and sadly, it often takes a crisis or an accident for the elder and family members to realize driving is no longer a safe option for the elder.

One of the other factors (besides requiring alternative transportation for a car-less elder) contributing to the difficulty of determining when driving is no longer safe is the challenge of getting a diagnosis of dementia.  This fear of such a diagnosis is shared by elder and family members – which is why I have referred to dementia as being “contagious” in the sense that we are all afraid of it – for the elder and for ourselves as family members.

So when do we decide and how do we decide, as individuals, families and communities – when we are no longer able to safely operate a motor vehicle?  Do we tenaciously cling to our badge of independence?  A Rilke quote comes to mind here:

The transformed speaks only to relinquishers.  All holders-on are stranglers.

From: Uncollected Poems by Rainer Maria Rilke, translated by Edward Snow, 1996.

What part of our identity as autonomous persons is our ability to be able to drive?  This concern with safety is a distinct one because it involves operating a car and all the dangers that poses to the drivers and others on the roads (or sidewalks).  Here is a recent article which addresses the challenges to driving a car which are faced by the growing number of persons diagnosed with Alzheimer’s Disease.  How do we negotiate the changes in our lives and our ability to manage for ourselves as we age?  These questions do not have easy or even simple answers, but we must nonetheless grapple with them!  I think another poem is in order. . .. this one entitled “Sunset:”

Great carnal mountains crouching in the cloud

That marrieth the young earth with a ring,

Yet still its thoughts builds heavenward, whence spring

Wee villages of vapor, sunset-proud. —

And to the meanest door hastes one pure-browed

White-fingered star, a little, childish thing,

The busy needle of her light to bring,

And stitch, and stitch, upon the dead day’s shroud.

Poises the sun upon his west, a spark

Superlative,—and dives beneath the world;

From the day’s fillets Night shakes out her locks;

List! One pure trembling drop of cadence purled—

“Summer!”—a meek thrush whispers to the dark.

Hark! the cold ripple sneering on the rocks!

E. E. Cummings (or e.e. cummings, if you prefer)

I will write more on this topic soon.

© 2016 Barbara Cashman  www.DenverElderLaw.org

Digital Assets After You’re Gone – Digital Assets in Decedent’s Estates

The Call

 

Part III: This post is about digital assets after you have passed away.  What happens with your digital assets?  This question is simpler to explain (notice I did not use the term “answer”) in the decedent estate administration context, but the answer is a lawyerlike response of “it depends.”

If you would like to view a fun infographic blog post, check out Linda Rosenthal’s post about digital estate planning here.   Okay, let’s start with the basics.

  1. What is Digital Property?

Any online account you may own or any file that is storedon your computer, another device or in the cloud.

2. What might an estate planning attorney want to advise a client about digital assets in the EP context?

Many of us who practice law in this area use a “letter of instruction” as an organizational tool to help a personal representative do their job.  It is not a legal document but rather an organizational document designed to help make the job of the personal representative (PR) easier.  Many people have experience with trying to locate assets, insurance policies, investment accounts, etc., that are nowhere to be found after a person dies.  This is what the letter of instruction is designed to flesh out.  Many people assume that if they have a will or a trust, that this document alone will suffice to guide them to assets.  This is not necessarily so and is often not the case at all.  The will names the PR and describes the assets and property of the person who wrote the will and usually dictates the method of distribution of the property, but often a will or a trust will usually not give a PR any indication as to the identityor nature of many of the assets, how they can be located and accessed, along with other important details.

There are several services online to put into place if you want to make arrangements via persons other than those whom you have selected as your agent or personal representative.   I think it is crucial that a letter of instruction contain a digital access as well as digital assets listing so that the agent, PR or survivors can identify the “known universe.”  How is that universe constellated?  Look to Kipling’s six serving men to assist here: what, why, and when, and how, where and who.

  • Computer storage of information (hard drive or cloud-based)
  • Email accounts, usernames and passwords
  • Online Banking information
  • web domains and the like (internet real estate)
  • intellectual property (e.g., blogs, pictures, etc.)

For better or worse, digital assets that have value can be transferred or disposed of relatively easily via a will or trust.  Management of those assets is another story.  How can estate planners stay on top of the ever-changing landscape?!  How about a special digital asset trust?  You certainly don’t want the private information contained in your will.  I just probated a will where I had to redact the testator’s SSN.  The trust’s ownership of the assets will survive the death of a testator, and (in states outside Colorado where estates are public record) remain private.  Trusts can be amended relatively easily, and a special successor trustee (like a digital asset management company) may be named to manage the assets. This is just one idea to consider among several alternatives.

3. What are some of the difficulties to consider when devising an estate  plan which includes digital assets?

Most states do not have any law that applies particularly to digital assets in the probate context.  In our legal system case law can develop in new areas of the law but a preferable means of  a cogent legal response to this ever-changing landscape would be to devise a new “regime” for such assets by including them in each state’s probate laws.  There is of course a difficulty of the variety of each state’s probate laws, and this mobility is relevant in our mobile American culture.  This effort, a uniform state law regarding digital assets, is what the Uniform Law Commissioners (ULC) is engaged in presently.  In the meantime however, we must consider the lack of clearly applicable law, the uncertainty of existing law, the prevention of identity theft for online activities all in the context of taking steps to make sure that a person’s wishes relating to digital assets are carried out in the way  intended.  This area is a natural place for the ULC to get involved, as the need for uniformity across state lines, along with the consideration of applicable federal laws regarding the internet requires a considered approach.  In the durable power of attorney context, the issues are much more challenging than in the decedent estate context.

4. Fiduciary Access to Digital Assets

There are important distinctions between fiduciary management of digital assets when a person is alive  and the management of those same assets after a person has passed away.  The situation appears to be much more problematic as they concern management of assets while a person is alive and perhaps incapacitated.  The situation is clearer and a bit more manageable as it concerns decedents’ estates.  I previously wrote a blogpost about social media and mourning, here’s an article about a new feature on Facebook that allows people to memorialize, pay tribute to and otherwise grieve on Facebook.

I will have another post on this topic before year’s end – updating our digital accounts and assets should be on everyone’s year-end to do list!

©Barbara Cashman 2013     www.DenverElderLaw.org

New Case Law Shows Teeth in Uniform Power of Attorney Act for Breach of Agent’s Duties

 

Irish Arches

In an opinion published 11/7/13, the Colorado Court of Appeals ruled on substantial questions relating to the Uniform Power of Attorney Act (UPOA) as it relates to an agent’s duties and the types of activities which a power of attorney (POA) authorizes.  In People v. Stell, 2013CA0492,   the Court of Appeals reversed and remanded with directions a case involving a criminal indictment of an agent who was acting under a POA.  This decision has wide and beneficial implications for principals who have executed  POAs and whose agent are acting in their own self-interests,  are converting their principal’s assets for the agent’s use or otherwise stealing from them.  Here’s a sketch of the factual background of the case. Thanks to Vicki H. for sharing this case with me!

The principal (referred to as “victim” in the opinion) executed a POA in 2009 in Virginia.  Both Virginia and Colorado have adopted the UPOA so, even though the statutory cites vary, the law is substantially the same.  In the POA, the Principal named as agent his son, the defendant Stell.  While acting as agent under the POA, Stell wasted no time liquidating all of principal’s bank accounts, CDs, a 401K account, a piece of real property and the timber sold from that land – to the tune of $453,928.81.  The following year, Stell proposed that the principal place other assets into a trust so they would be protected from creditors.  The trust document that principal signed at his agent Stell’s direction did not name the principal as beneficiary of such trust and so, principal was permanently deprived of the use and benefit of that property.  In October 2010, principal terminated the POA and asked the Denver District Attorney’s office to investigate.  As a result of such investigation a nine-count indictment was drawn, eight counts for theft and one count of conspiracy.  The appeal of the trial court’s ruling is based on the dismissal of counts 1, 2, 4 and part of 3 – relating to the authority of the agent Stell to transfer principal’s property as agent under the POA.  In its dismissal of those counts, the trial court ruled that because the agent Stell had authority under the POA to do anything with the principal’s property that principal could do with it, that Stell couldn’t commit theft against his principal.  The Court of Appeals soundly rejected this line of thinking.

The POA is a document that confers broad powers, but it is no license to steal.  In this criminal case, the Court of Appeals examined carefully the fiduciary duty owed by an agent to his principal under the UPOA.  Citing a Virginia Supreme Court decision, the Court of Appeals stated that “powers of attorney are strictly construed.”  (Opin. at para. 17) Going further, the court ruled that the expansive language in a POA should be interpreted narrowly and should be construed in light of the surrounding circumstances.  It soundly rejected the argument that, because a POA typically gives a broad grant of authority, it could somehow give an agent the authority to misbehave, commit theft and otherwise breach fiduciary duties owed as a consequence of the nature of the principal-agent relationship.

The fact that a POA contains a broad grant of agent authority does not mean that an agent is nonetheless duty-bound (as in an agent’s fiduciary duty, as described in the UPOA) to exercise authority in acting as agent in the utmost good faith, loyalty, and other duties owed.  The Court of Appeals rejected that trial court’s reasoning that a broad grant of authority to the agent implied that an agent’s actions that were in violation of the fiduciary duties owed were somehow still “authorized” because agent was acting under a POA.  In paragraph 21 of the decision, the Court of Appeals identified the factual questions appropriate for a jury’s determination of whether an agent under a POA was acting within or outside of his or her scope of authority as determined by agent’s fiduciary duties.  They included the following questions of whether agent acted: (1) in accordance with principal’s reasonable expectations and consistently with the principal’s interests and intent; (2) in good faith; (3) loyally for the principal’s benefit; and (4) with the care, competence and diligence ordinarily exercised by agents in similar circumstances.  In reversing and remanding the counts of the indictment dismissed by the trial court, the Court of Appeals gives an indication that the days of the POA as a “license to steal” for noncriminal law purposes are over.  This is an important development for Colorado – for both the new mandatory reporting of financial exploitation law(read my post about that law here ) as well as the ability of exploited elders and other at-risk persons to recover funds  improperly taken from them by an agent under  a POA.  It gives more protection for principals who have been taken advantage of by their agents to establish that the agent’s conduct was improper and to strengthen the ability to recover such funds that were improperly used or converted for the agent’s exclusive benefit.

©Barbara Cashman 2013     www.DenverElderLaw.org

Estate Planning and other Fearsome Topics: part I

des Beaux Arbres en Marbre

You might be wondering about the topic of this post, I’ve written about estate planning in the therapeutic jurisprudence context before, so what is this one about?  It is about  . . .  the dark side, or fear-based estate planning.   Is someone or something – perhaps working together and typically referred to as “they“ – out to get you?  Perhaps to rob your heirs of the rightful proceeds of your estate . . .  !   Who is this nefarious individual or entity?

If you read some of the newspaper ads, are you surprised to learn about all the bad things that could happen to you that you didn’t know about?  “Fear based” estate planning is taking the “nightly news” gloom and doom approach to a very individual and personal situation, creating a problem that may or may not exist, but is something that strikes fear, and offering a solution in a tidy little package with a typically rather large price tag.  Estate planning is too individualized, too personalized to an individual or family’s unique circumstances to leave to a fear-based reaction mode of decision making.  Perhaps this is where I transition to myth buster mode, so let’s proceed.

Myth #1: You Need to Avoid Probate (as in probating a will) at All Costs

Many people have been trained to fear probate, but if you asked them why, it would often be difficult to get a straight answer.  Lawyers, like doctors, must obtain informed consent for their legal services. Informed consent requires that a person’s consent to be competent, voluntary, and informed.   Clients need to be informed of alternatives so that they can make their own informed decisions about how they wish their attorney to proceed.  Fear-based estate planning often threatens this basic requirement.  There may indeed be good reasons for a person or a family to avoid probate, but they ought to be considered in a calm and rational manner.

Since 1973, Colorado has had a version of the Uniform Probate Code.  Probate in Colorado is simplified and the vast majority of it requires no judicial involvement.  Our financial lives in today’s world are seldom simple. Even those of us who are certain that we have updated and appropriate beneficiary designations on our accounts (like a beneficiary designation for an IRA, or a pay-on-death provision for a bank account) can drop the ball over the course of years.

When a person dies without a will, the law that applies to the disposition of the decedent’s estate is known as the law of intestacy.  It is part of our probate code.  Intestacy is designed to approximate what most people would provide in their will, but with some important details left out.  Intestacy can apply in a fairly straightforward manner where there is a “Leave it to Beaver” style family, which is no longer the “typical” scenario.  Modern complications include: married with no children; unmarried committed couple; remarried couple with stepchildren; divorced with minor or adult children; married with assets in a community property state; and a host of other life circumstances that seem to affect the majority of us.

Another option for Colorado probate is to collect an estate via affidavit.  This affidavit can be used where there is no real property involved and (for 2013) the assets do not exceed $63,000.

If there is real property or are probate assets which may include “surprise” probate assets (nonprobate assets which they lack an effective beneficiary designation and which exceed $63,000) then a probate will generally need to be opened.  If you can’t afford an attorney, many judicial districts have assistance available at “self-help” centers.    Many of my colleagues and I assist at these clinics.

At the present time, the statutory filing fee for opening a decedent’s estate is $164.00. Colorado, unlike some other states, does not require judicial supervision of decedent estates (except where there is a will contest or other contested matters which require juridical intervention) and there is no percentage valuation of an estate that goes to either a lawyer probating the estate or the state by virtue of some appraisal of the estate’s value.  Colorado has no estate tax.  The federal estate tax is currently around $5.25 million, so this is not a concern for most people.

Myth #2: Getting a Trust Will Protect Your Assets from Nursing Home Costs and Medicaid Recovery

Medicaid is a federal program for providing health care coverage to aid to indigent persons including children, pregnant women, people with disabilities and older persons.  It is a program for which one must be eligible.  For older persons, one must be sick enough and poor enough to qualify for benefits.   Medicaid is not Medicare.

In Colorado, Medicaid is administered through the Department of Health Care Policy and Financing (HCPF).  This agency really doesn’t care for trusts that some people have created and to which they have transferred title to their residence.  For example, if someone puts their house in the trust’s name and then needs to apply for Medicaid within the five year look back period, there will likely be a penalty, a period of ineligibility based on the amount of the gift (the transfer to the trust for less than fair consideration) and the average costs of care in a nursing home.  It may be necessary for the trust to convey back the title to the person applying for Medicaid so that they can become eligible.  This is not always possible.

A reverse mortgage is another method that some individuals use to tap into equity resources of their home, and these require that the home be titled in an individual’s name, and not in a trust.  Bottom line is that trusts don’t generally work for “keeping your assets out of the hands of nursing homes” where it involves a home that is the primary residence.

I will be back soon with another myth-busting installment on this topic. . . . stay tuned.

©Barbara Cashman 2013     www.DenverElderLaw.org

Dementia, Capacity and Old Age: part II

Part I of this post began: In our death-denying and youth-glorifying culture, how does dementia figure as a disease? Is there a cause? Is there a cure?  What pills can be prescribed?  We might choose to view dementia is a dark side of longevity.  Where we have unprecedented longevity due to medical advances, isn’t it right to wonder about what our lives are for – especially if we have more length of days to ponder the meaning.   As I frequently comment to clients, we have never had so many old people on the face of the earth before.  Many of the challenges we face in supporting  elders and caring for them – the legal, financial, medical, social and emotional challenges – are new problems and require new thinking. 

How is it decided who gets to go back home, back to their independent living arrangements, after a discharge from a hospital or rehab facility?  Long term living arrangements for elders in institutions have been becoming more rare – but is this trend likely to continue as more of the baby boomers reach retirement age?  In the institutional setting, a major issue presented in this context of dementia and capacity is the “choice between” autonomy and restraint.  This is a recurrent dilemma for many elders living in facilities and the staff members charged with managing their care in these institutionalized settings.  This is “big brother” in the context of the growing number of elders.

What is it that matters about old age – why do so many people want to live longer?  When we focus on the do-ing part of our lives, extending that “active adulthood” indefinitely, or at least valuing that part of our lives as the only part worth maintaining and carrying on, we do disservice to the be-ing part of our lives.  I recognize that the vast majority of our culture is focused on the doing, the active (not contemplative), the choosing (not reflective) and the control, and that these are the hallmarks of a culture that holds choice and self-determination in high regard.  However, there is also the more fundamental backdrop of human dignity that often gets overlooked when we get caught up in our rights-bearing choice-making mindset.  This is the challenge of dementia and and other end-of-life scenarios and why we need to rethink our thinking in some fundamental ways.  For an institutionalized person with advanced dementia, that person is entitled to dignity and respect as a person, simply by reference to their being alive, and without reference to a focus on all the capacity that a person has lost.  How many times have we heard comments like “look at him now, he used to be a university professor.”  I think these comments are symptomatic of our unbalanced focus on the do-ing part of our adult lives, (which undoubtedly helps many of us maintain our sense of control over our lives) at the expense of the be-ing aspect of our lives.    We exist as people  as long as we are alive, as human beings.

Below I quote the entire poem “Tithonus,” by Alfred Lord Tennyson, a  poem about aging as told by the lover of the goddess Eos, whose immortality was granted by Zeus – but Eos forgot to ask Zeus for his eternal youth and he was thereby left in an eternal prison of old age.

The woods decay, the woods decay and fall,

The vapours weep their burthen to the ground,

Man comes and tills the field and lies beneath,

And after many a summer dies the swan.

Me only cruel immortality

Consumes; I wither slowly in thine arms,

Here at the quiet limit of the world,

A white-hair’d shadow roaming like a dream

The ever-silent spaces of the East,

Far-folded mists, and gleaming halls of morn.

Alas! for this gray shadow, once a man–

So glorious in his beauty and thy choice,

Who madest him thy chosen, that he seem’d

To his great heart none other than a God!

I ask’d thee, “Give me immortality.”

Then didst thou grant mine asking with a smile,

Like wealthy men who care not how they give.

But thy strong Hours indignant work’d their wills,

And beat me down and marr’d and wasted me,

And tho’ they could not end me, left me maim’d

To dwell in presence of immortal youth,

Immortal age beside immortal youth,

And all I was in ashes. Can thy love

Thy beauty, make amends, tho’ even now,

Close over us, the silver star, thy guide,

Shines in those tremulous eyes that fill with tears

To hear me? Let me go: take back thy gift:

Why should a man desire in any way

To vary from the kindly race of men,

Or pass beyond the goal of ordinance

Where all should pause, as is most meet for all?

A soft air fans the cloud apart; there comes

A glimpse of that dark world where I was born.

Once more the old mysterious glimmer steals

From any pure brows, and from thy shoulders pure,

And bosom beating with a heart renew’d.

Thy cheek begins to redden thro’ the gloom,

Thy sweet eyes brighten slowly close to mine,

Ere yet they blind the stars, and the wild team

Which love thee, yearning for thy yoke, arise,

And shake the darkness from their loosen’d manes,

And beat the twilight into flakes of fire.

Lo! ever thus thou growest beautiful

In silence, then before thine answer given

Departest, and thy tears are on my cheek.

Why wilt thou ever scare me with thy tears,

And make me tremble lest a saying learnt,

In days far-off, on that dark earth, be true?

“The Gods themselves cannot recall their gifts.”

Ay me! ay me! with what another heart

In days far-off, and with what other eyes

I used to watch if I be he that watch’d

The lucid outline forming round thee; saw

The dim curls kindle into sunny rings;

Changed with thy mystic change, and felt my blood

Glow with the glow that slowly crimson’d all

Thy presence and thy portals, while I lay,

Mouth, forehead, eyelids, growing dewy-warm

With kisses balmier than half-opening buds

Of April, and could hear the lips that kiss’d

Whispering I knew not what of wild and sweet,

Like that strange song I heard Apollo sing,

While Ilion like a mist rose into towers.

Yet hold me not for ever in thine East;

How can my nature longer mix with thine?

Coldly thy rosy shadows bathe me, cold

Are all thy lights, and cold my wrinkled feet

Upon thy glimmering thresholds, when the steam

Floats up from those dim fields about the homes

Of happy men that have the power to die,

And grassy barrows of the happier dead.

Release me, and restore me to the ground;

Thou seest all things, thou wilt see my grave:

Thou wilt renew thy beauty morn by morn;

I earth in earth forget these empty courts,

And thee returning on thy silver wheels.

Alfred Lord Tennyson

Does our culture’s denial of death as part of life, our glorification of youth at all costs condemn us to Tithonus’ fate?

If we cannot stop to think about the purpose of our lives during our adult years, can we abandon to hope that such meaning will somehow arrive at our doorstep, unbeckoned?  If this were to happen to us, would we even recognize its meaning?   I think not.  Elderhood is an extension of adulthood, and growing up is – quite simply – optional in our culture.

©Barbara Cashman     www.DenverElderLaw.org

Dementia, Capacity and Old Age: part I

In our death-denying and youth-glorifying culture, how does dementia figure as a disease? Is there a cause? Is there a cure?  What pills can be prescribed?  We might choose to view dementia is a dark side of longevity.  Where we have unprecedented longevity due to medical advances, isn’t it right to wonder about what our lives are for – especially if we have more length of days to ponder the meaning.   As I frequently comment to clients, we have never had so many old people on the face of the earth before.  Many of the challenges we face in supporting  elders and caring for them – the legal, financial, medical, social and emotional challenges – are new problems and require new thinking.

Self-determination is important in medical care, this is why informed consent is required.  Perhaps because medical care is more of an ongoing need in most people’s lives, health care providers seem to be much more capable of embracing the gray area (no pun intended) of self-determination regarding patients with severe mental impairment, many of whom are elders with dementia.

In the legal context, an adult person retains the ability to make decisions for himself or herself, and this capacity is presumed by our legal system and continues generally until a person is determined to be “under a disability” meaning that a probate court has adjudicated the person incapable of managing very basic requirements for themselves.   Colorado law defines an incapacitated adult 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 lack the ability to satisfy essential requirements for physical health safety, or self-care, even with appropriate and reasonably available technological assistance.  Colo. Rev. Stat. §15-14-102(5).

But there are many practical shortcomings to the legal description of “incapacitated” and the requirement that a probate court is the only court capable of determining such, thereby stripping a person’s civil rights after a legal proceeding.  In this regard, the legal system, for better or for worse recognizes individuals’ rights to self-determination, even when that right to autonomy cannot effectively be expressed or communicated.  By contrast, the medical setting allows much more flexibility and recognition of people’s fluctuating levels of capacity and variable mental states.  If you have ever known a committed coffee drinker state “don’t ask me to decide anything that matters until I’ve had my cup of coffee” then you realize that the context for these fluctuations in mental states has always been with us.  These fluctuations tend to become more pronounced for many of us as we age, and for some people who experience cognitive decline that is disease related and not “merely” a function of aging.  So what does dementia look like?  The Alzheimer’s Association has described ten warning signs:

    1. loss of memory that is life-disrupting
    2. difficulty performing familiar tasks
    3. problems with language, word finding – written or spoken
    4. confusion or disorientation as to time and place
    5. poor or declining judgment
    6. difficulty with abstract thinking, visual and spatial orientation
    7. losing or misplacing things and inability to retrace steps
    8. changes in mood or behavior
    9. loss of initiative, withdrawal from work and social activities
    10. personality changes

 

What we often overlook is that these determinations are made relative to what our life was like before some fixed period of time, some diagnosis or a tragedy.  Often there is a traumatic event that wakes family members from their slumbering denial of an elder’s difficult situation.  Notwithstanding the lifelong fluctuation of our capacities, this line of capacity/incapacity gets narrower  and more pronounced as elders in frail health or with dementia move closer to the place of incapacity.

 

When we look at institutionalization, a focus on people’s autonomy and rights may sound an alarm bell when we think about the compromises and those made into real or perceived injustices leveled at frail or demented elders.  Some of these people may be subjected to physical or chemical (pharmaceutical) restraints, so as to make them more safe and more manageable in a community.  As long as we focus on the doing part of our autonomy at the expense of the being, we necessarily focus on the past and all the losses sustained.  We are unable to really see person as they are, in the present moment.  This at the expense of meaning.  I will close this post with a portion of a poem by Walt Whitman:

Old age, calm, expanded, broad with the haughty breadth of the universe,

Old age flowing free with the delicious near-by freedom of death.

Song of the Open Road, verse 12,  Walt Whitman

to be continued…

©Barbara Cashman     www.DenverElderLaw.org

 

May 1st is Law Day – Happy Law Day!

Law Day – what is that about. . . .? I haven’t seen the greeting cards to mark the occasion! The theme for Law Day 2013 is Realizing the Dream: Equality for All. This year’s commemoration is all about civil and human rights, the American Bar Association has some great resources available here.


This year’s Law Day is a fairly patriotic event in that it marks our nation’s long history in the struggle to honor and promote people’s civil and human rights. This year is the 150th anniversary (or sesquicentennial if you prefer that) of the Emancipation Proclamation. In Denver, our local and state bar associations are co-sponsoring a screening of the 2012 film Lincoln.  The event even has a CLE (continuing legal education for lawyers) component.
On the civil rights theme, I would like to have linked to a youtube showing the historic “I Have a Dream” speech by the Rev. Dr. Martin Luther King, but there is a bit of an intellectual property right issue there.
Sometimes lawyers forget why they went to law school and what the struggle for justice, still ongoing, is about. Law day seems to be an observance primarily for lawyers and bar associations, but it also has an important component of education about our legal system as well. Our system of justice cannot effectively function when people are not educated about their rights. In most of Europe and many parts of the world, May Day is not law day but is a commemoration of workers’ rights.
I looked up the history of Law Day in the US and discovered it was the idea of Charles S. Rhyne, President Eisenhower’s legal counsel and also president (the youngest person to serve in that capacity) of the American Bar Association. My connection with Charlie Rhyne? He started the World Peace Through Law effort. I attended the 1987 Seoul Conference on the Law of the World and served as rapporteur for one if its committee meetings. The organization is now known as the World Jurist Association.  International law is grounded upon the recognition of the rule of law among nations.
So, Law day and civil rights – where’s the elder law connection? I have previously blogged about the Universal Declaration of Human Rights in the context of elders’ rights.  For their part NAELA, the National Academy of Elder Law Attorneys (of which I am a proud member) has a press release here about their efforts and elder and special needs law attorneys’ efforts to educate their community about legal options. They observe the entire month of May as Elder Law Month.
So, you may not be thinking about the civil rights and the elderly and incapacitated when you consider civil right. But make no mistake – elder law is a hotbed for civil rights – why? Guardianship proceedings (as they are known in Colorado, in most state jurisdictions protective proceedings are known as guardianship of the person and guardianship of the property – for what is known as conservatorship in Colorado). As the number of elders continues to increase, we will need to develop more appropriate legal mechanisms to manage the gray area of defining incapacity. This is where the law evolves to meet the needs (that’s the goal at any rate) of a changing demographic and society.
How will I spend law day? I will be grateful for being a citizen of this great country where the rule of law is well respected. What is “the rule of law?” Okay, I skipped the definition in my trusty Black’s law dictionary – too stuffy sounding and like the Wikipedia one better: it refers to the authority and influence of law in a society, especially as a constraint upon behavior, including behavior of government officials.  When I was studying international law back in my law school days, this was a revolutionary concept in many legal institutions. In fact, it still is in many parts of the world. One of the best parts about being a lawyer is staying on top of developments and figuring out how to tailor these to meet a particular client’s needs. Estate and elder law provide me a wonderful opportunity to advise people about their legal options and counsel them in the context of what works best from their own legal, financial, medical and emotional point of view. I am grateful for my clients and I love being a lawyer. . I wouldn’t have it any other way.
I think it’s a fitting way to observe Law Day – even if it is spent with lots of boxes and the movers who will be moving my office from southeast Denver to Centennial, two miles south of my current office.
              My new address is 7955 East Arapahoe Court, Suite 3000, Centennial, CO 80112. My new direct line is (720) 242-8133.

©Barbara Cashman www.DenverElderLaw.org

April is Donate Life Month – Do You Have a Heart?

Of course you have a heart! This title is about whether you have one of those little hearts with a “Y”  in the center on the front of your Colorado Driver License . . .

This is what it’s for!

This month Donor Alliance is hosting events statewide to publicize this year’s National Donate Life Month.  Check out one of the events here .  You can also see some activities of Donate Life Colorado (the namesake for the Colorado license plates ) on Facebook here .  Of course, it isn’t just about organ donation, there are plenty of related activities for this month.  In light of the recent tragedy in Boston, it is important to remember that there is something many of us can do to help someone in need – donate blood!  In the metro area there are several Bonfils Blood Centers that make donating easy (almost painless, in fact) and on their website  you can find out if there is a blood drive that can make your donation even simpler.  In my experience, there are better snacks and goodies at those blood drives . . . . . !

Bonfils has their own marrow donor program, but I am registered through DKMS as a donor.  Some years back at Film on the Rocks  (when Talladega Nights was playing at Red Rocks), DKMS was recruiting, so a cheek swab and an interview later, I’m signed up.  I even got contacted two years ago as a potential match for a patient.  I wasn’t able to donate because the patient wasn’t in a position to receive a donation.  These can be very tricky matches from a timing perspective for the patient, which makes it even more imperative to have lots of registered donors available.  You can visit the DKMS Americas website for more information In case you’re wondering about DKMS, it stands for the German – Deutsche Knochenmarkspenderdatei (bone marrow donor) Center, which began in 1991 when a young woman, critically ill from leukemia and in need of stem cell transplant was in need of a match for a donation.  DKMS USA was founded in 2004 and has been involved in stem cell donation to battle blood cancers – cancers such as leukemia, lymphoma and myeloma.

So why donate?  Here are some quick facts about blood donation:

  1. 4.5 million Americans will a need blood transfusion each year.
  2. 43,000 pints: amount of donated blood used each day in the U.S. and Canada.
  3. Someone needs blood every two seconds.
  4. Only 37 percent of the U.S. population is eligible to donate blood – less than 10 percent do annually.
  5. About 1 in 7 people entering a hospital need blood.
  6. One pint of blood can save up to three lives. PS This is the amount of a donation at a blood bank.
  7. Healthy adults who are at least 17 years old, and at least 110 pounds may donate about a pint of blood – the most common form of donation – every 56 days, or every two months. Females receive 53 percent of blood transfusions; males receive 47 percent.
  8. 94 percent of blood donors are registered voters.
  9. Four main red blood cell types: A, B, AB and O. Each can be positive or negative for the Rh factor. AB is the universal recipient; O negative is the universal donor of red blood cells.
  10. One unit of blood can be separated into several components: red blood cells, plasma, platelets and cryoprecipitate.

Find more facts about blood donation here .

So . . . .  why donate? It is a gift of life for someone in need, it is a way to help others.  It is also a way of showing gratitude for good health that many of our community members do not enjoy.  Have you ever known someone who required a blood transfusion?  Most of us have and we are grateful that the blood was available at their time of need.

It’s easy enough to do.  first you determine whether you are eligible.  If you are, you will have your blood pressure, pulse and blood count (hemoglobin level) measured.  The next step is that needle in your arm to donate the blood.  When you are finished, you get a snack and perhaps a colorful bandage.  Pretty simple and definitely not too time-consuming.  Whole blood donors can give as often as every six weeks.  Because of the number of people who need blood and the relatively smaller number of people who can donate, you might decide to donate on a regular basis.  But every little bit helps.  In the U.S., someone needs a blood transfusion every 2-3 seconds.  Keep in mind that most of us will need a blood transfusion at some point in our lives.  Don’t wait till an emergency to wonder if the blood you or a loved one e might  need will be available.  Your donation this month will help ensure the adequacy of the blood supply.  Okay, if you still need a little YouTube inspiration, watch this clip about a mom of triplets whose life was saved a transfusion.   Okay, this last bit is for the legal part of this post, don’t forget to make advance arrangements with the correct legal documents to state your wish to be an organ donor.

©Barbara Cashman     www.DenverElderLaw.org