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

 

 

A Brief Look at the Thinking Behind Guardianship Reform

Help with wings

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

The Challenges of Reforming Different Systems Among the States

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

There Are At Least Two Different Populations of Vulnerable Persons

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

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

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

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

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

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

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

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

© 2018 Barbara Cashman  www.DenverElderLaw.org

What Might Guardianship Reform Look Like?

Sienese Sculpture

 

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

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

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

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

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

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

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

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

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

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

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

© 2018 Barbara Cashman  www.DenverElderLaw.org

Does Guardianship Law Need Reform in Colorado?

guardianship reform

At the Threshold

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

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

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

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

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

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

  • Stronger procedural due process protections in the appointment process;

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

  • Guardian accountability and court monitoring; and

  • Public and agency guardianship.

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

Is Guardianship Usually Considered a “Last Resort?”

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

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

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

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

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

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

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

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

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

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

© 2017 Barbara Cashman  www.DenverElderLaw.org

Is Guardianship Reform Coming to Colorado?

One Stone of an Ancient Ring

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

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

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

The Uniform Guardianship, Conservatorship and Other Protective Arrangements Act

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

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

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

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

In coming posts, I will explore topics including:

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

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

© 2017 Barbara Cashman  www.DenverElderLaw.org

 

Elder Abuse Detection: the Vital Role of the Physician

Flowers in Stone

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

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

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

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

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

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

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

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

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

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

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Financial Empowerment for Elders

The Mighty Tiber

I’m privileged to be the invited speaker for Denver City Councilwoman Kendra Black’s “Senior Series” program tomorrow morning on the topic “Financial Empowerment: Planning for Longevity.”  I hope it will be a lively Q & A session with the participants!

So what is this empowerment anyway? Merriam Webster’s online defines empower as:

transitive verb: (1) to give official authority or legal power to; (2) enable; and (3) to promote the self-actualization or influence of.

Empowerment has at least a couple layers here, but for my purposes in educating and assisting elders who are living longer and in greater number than ever before, the most important aspect is the “give legal power to” in the first definition.

What I’m thinking of are documents like durable powers of attorney – both medical and general (financial) as well as other documents like a living will, a disposition of last remains and other similar documents.

Modern estate planning traverses two different “time zones” if you will – both the longevity scenario which covers the incapacity and disability side of life among the living, particularly for a long life, as well as the other side of life, or what happens after someone passes away.  Empowerment can and does often involve both of these time zones, but it is critical that the first time zone be discussed and planned for because the longer we live, the greater our chances of being incapacitated (for short or longer term periods).  Empowerment here means a conversation not just about the inevitable (death) but also about what one’s preferences are in the event one cannot speak or communicate on their own.  But it also means enlisting support from our loved ones and friends, as well as our community, in the event we need help, support or protection.

That is a big part of what I will be addressing tomorrow.  The more we talk about these important matters, the easier the conversation becomes.  Some of these topics, like elder abuse and financial exploitation by adult children or caregivers, are still quite difficult to talk about – but they are necessary conversations!

I’ll be sure to share in a later post about what some of the participants concerns were and what we discussed.  In the meantime, I hope to see some of you at the Eisenhower Recreation Center (4300 East Dartmouth Ave., Denver) tomorrow at 10 a.m.!

© Barbara E. Cashman 2017   www.DenverElderLaw.org

 

The Eclipse and the End of Life As We Know It

True Illusion

The eclipse that is set to occur on Monday, August 21, 2017 is a big deal. I have several friends who are traveling to get a better view of this event.  One couple I know is going to Fort Laramie, Wyoming and other friends to McCook, Nebraska.  Here’s a handy map that shows the strip of total eclipse. Based on my research, the last coast to coast eclipse in the US was ninety-nine years ago.  I remember seeing a partial eclipse in Denver almost thirty years ago.  It was pretty cool.  So, if you want to “prepare” for this eclipse, go to this link on the NASA website.  After all, it’s set to last for nearly three hours, reaching its maximum at 11:47 a.m. in my neck of the woods.

So what is it about the eclipse that would cause me to couple it with. . . the end of life?!  Well, here goes.

The word eclipse comes from the Greek ekleipsis, which means abandonment, cessation, failing, omission or flaw.

But remember that the eclipse merely obscures the sun from our sight – the moon appearing before the sun to block it does not extinguish the sun, but from our eyesight-based superficial understanding of what we think we see. . . . well, what’s the difference?

It’s a matter of vision, not eyesight.

Perhaps we eclipse-seekers are simply in search of awe, what some of our forebears would call miracles. Where should we search – in the familiar places or the unfamiliar, even uncomfortable ones? That’s hard to say. Few of us look for that awe in the mundane and everyday, but that is almost always where it seems to be found, discovered, seen.

This awe can cause a cognitive shift in our awareness, as in the “overview effect.” The term was first coined by Frank White in his 1987 book The Overview Effect — Space Exploration and Human Evolution and is described in this Wikipedia entry as

the experience of seeing firsthand the reality of the Earth in space, which is immediately understood to be a tiny, fragile ball of life, “hanging in the void”, shielded and nourished by a paper-thin atmosphere. From space, national boundaries vanish, the conflicts that divide people become less important, and the need to create a planetary society with the united will to protect this “pale blue dot” becomes both obvious and imperative.

It strikes me that this eclipse, and its draw to our experience of life, is not unlike the awe at the end of life. The drawing and that movement is perhaps generated in different directions so to speak. We can “attend” the eclipse and experience it in ways we enjoy, but the end of our life demands a different kind of presence – one no less awe-some, one that we may think we are not quite ready to experience.

In his book Places of the Heart: The Psychogeography of Everyday Life, Colin Ellard looks at places of awe.  At 154 of the book he looks at research into experiences of awe which focus on two essential aspects: a feeling of vastness and a sense of accommodation.  Vastness is the feeling of hugeness and grandeur, while accommodation describes our response to what created the feeling.  Ellard notes this often involves contradiction. An excellent article on awe (and its self-diminishing aspects) and prosocial behavior can be found here.

What is the inevitable here? We can easily face and even celebrate the inevitable when it is. . . . not too close and personal!  But what of dying and how can we recognize it as it approaches and obscures our sight ? Most of us don’t want to see death coming, so we turn away!

When people refuse to have the conversation about dying and its uncertain circumstances, to name or appoint someone to speak for them in the event they are unable to do so on their own, well – then the doctors will decide for you.  Here’s an interview with Dr. Jessica Zitter, ICU and palliative care doc and author of Extreme Measure, a book about the ethics of end of life medicine. Thanks for sharing that with me Georgine!

So maybe there is some preparing we can do for the eclipse(s) of our life. . . .   I think these Buddhist sayings (dhammas) sum up this essential changeable quality of our nature and that of the cosmos most succinctly:

I am of the nature to decay, I have not gone beyond decay.
I am of the nature to be diseased, I have not gone beyond disease.
I am of the nature to die, I have not gone beyond death.
All that is mine, dear and delightful, will change and vanish.

It’s a hard place to just be, to be with the uncertainty – will there be a sun that returns after the moon passes over it completely?

The eclipse of –  disease, misfortune, old age, fear of change, death.

Perhaps we can see this eclipse opportunity as an invitation, a path, to assist us in recalling how to revere, to feel deep respect or awe for something, for our relationship with the world and with each other.  In this respect, we remember reverence through nature – our nature – not outside, but inside each of us.

© 2017 Barbara Cashman  www.DenverElderLaw.org

Capacity, Incapacity and Vulnerability

Old boats on the Isle of Mull

This is the last post (for now at least) on the topic of capacity and incapacity. In my field of practice, I must be comfortable with making assessments of capacity concerning potential clients and I must also be familiar with the panoply of assessment tools used by the medical establishment (and psychologists who perform neuropsychological evaluations of capacity).

Capacity and incapacity are legal constructs, but they often arise within a medical context and are typically established (in the Colorado probate code as a requirement for a physician’s letter to support a petition for guardianship) with reference to medical evidence relating to a person’s cognitive capacities or mental status.  Interestingly, issues of medical capacity, or what is commonly referred to as “decisional capacity,” is something in which the court system is rarely involved.  So this relationship between legal and medical capacity is not much of a two way street!

In this post I’m looking at where these two notions of capacity and incapacity can meet.  Sometimes we hear that an elder is not capable of doing something any longer – for physical, cognitive, psychological or emotional reasons, and we often fail to consider the intersections of these parts of each of us as people.  We must depend on the integration of those capacities for our continued functioning.  Sometimes it can be very difficult to determine whether a difficulty is short lived or temporary or whether it is a harbinger of greater difficulties which lie ahead.  We each face these challenges alone, but we must rely on others in this stage of our lives, just as we have in earlier, higher functioning stages of our lives – but most of us  struggle mightily with our vulnerability.  The NIH website has a list of resources available for dementia caregivers available here.

There is an intersection between disability law and elder law in the approach to how we facilitate the assisted decision-making on behalf of another as well as the living arrangements for an incapacitated adult.  This is the term  ”least restrictive means” or also “least restrictive environment.”   The former term is distinguished from regulatory and constitutional law, in the probate incapacity context it is the language of the preference for limited guardianship over unlimited or plenary guardianship.  For the latter, we see the term in the federal Individuals with Disabilities Education Act (IDEA) which refers to inclusion and mainstreaming, which are of obvious relevance and value to elders who are losing or have lost capacity (ies).

The parallels between the rights of the disabled and the rights of incapacitated elders are numerous.  A large number of elder law attorneys practice in both fields of law because there are so many similarities.  Here’s a link to the Guardianship Alliance of Colorado’s website, which has great resources relating to protecting adults with disabilities.

This determination of incapacity sounds like a one-way street from which there is no turning back, but that is not the whole story.  I came across an interesting article by law professor Nina Kohn and Catheryn Ross about how a person previously stripped of “legal personhood” can regain their legal status.  You can read “Lawyers for Legal Ghosts: The Legality and Ethics of Representing Persons Subject to Guardianshiphere.  The introduction recounts the story of Jenny Hatch, a young woman with Down’s syndrome who was a ward of the state and who successfully challenged not only the terms and conditions of her guardianship, but also her right to make decisions for herself.

Elders in Colorado are part of a “protected class” of persons in our elder abuse statute.  Some of my colleagues take offense at the reference to age because they are close to that age (70) and still don’t want to think of themselves as “old” or in need of protection.   I suspect they don’t consider themselves “old” because they don’t have enough youngsters in close proximity. . . .

What does incapacity mean for a person once a probate court has determined the person incapacitated?

Incapacity determinations by probate courts generally strip a previously capacitated adult of nearly all of their civil rights.  In Colorado, wards (what a person who is named as Respondent in a guardianship petition is called after the court determines the person is incapacitated and in need of a guardian) can still exercise their right to vote.  So once a persons is stripped of those civil rights, a ward essentially ceases to exist in many ways or is legally dead.  This is one aspect of vulnerability.

If you find this patently offensive, please consider the historical common law rules of marriage and property which were “imported” into North America by the colonists.  Hey, didn’t we recently celebrate our independence on the Fourth of July a month ago?! These “coverture laws” basically reduced the legal status of an unmarried adult (otherwise capacitated) woman from an adult to the legal status of an infant once she was married.  These coverture laws pertained to a married woman’s legal rights to own property, to sign contracts, make a will and many other useful matters.  A married woman was otherwise legally incapacitated, but she could seek relief from a court of equity.  Connecticut was one of the first states to establish the property rights of married women.  Back in those early days, the courts of law were separate from the courts of equity, the latter were often referred to as chancery courts.  Those courts were merged with courts of law in many court systems but still exist as separate courts in states like Delaware.  In Colorado’s system of “combined courts” a court sitting in probate is both a court of law (employing the statutory probate code as well as case law) and a court of equity.  Equity is specifically referred to in our probate code, but the two concepts are still legally distinguished from each other because they are different sources of law and the remedies it affords parties.

A ward can regain his or her legal status of personhood – but it can be daunting.  In Colorado, there is a special form for that.   A psychologist I know recently contacted me about getting this form and providing a supporting letter for their client – here is the form from the state judicial website JDF 852.  If imposition of a guardianship over a ward is legal death, then termination of the guardianship based on a restoration (or re-evaluation) of capacity is akin to resurrection.  I won’t go into the gnarly details about the attorney’s ethical rules of representing wards seeking termination of their guardianships, but the Kohn article above is an excellent overview of how attorneys can overcome some of the challenges inherent in our ethical rules to assist those persons in getting their legal personhood or at least some of their rights restored.  Attorneys need to assist these wards to protect fundamental rights.

That’s all for now….

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Capacity and Incapacity Considered

Swirling

As a growing portion of our population continues to age, we are more frequently forced to confront the question of capacity.

What is capacity and why should we care? 

As we continue to enjoy unprecedented longevity, we face greater likelihood of incapacity in our future.  Sometimes this incapacity is short-lived or temporary but for many of us, particularly for elders, it can become an issue that plays out over time and can result in a permanent incapacity.  There are very few “bright lines” to define what is capacity and what constitutes incapacity generally, but there are many useful contextual and functional definitions of capacity to assist us in this effort.

I believe that the more we can learn about how these capacities and incapacities present themselves in the context of our daily lives, the better equipped we can become to help detect and prevent elder exploitation and abuse.  This post is about three particular types of capacity along the capacity continuum.  I use the term “continuum” because it is easy for many of us to think (or rather, wish to believe) that this capacity question is relatively straightforward.  It is not!  Like so many other aspects of human doing and human being, it can get quite complicated.

I’ll look at three familiar types of capacity here to put the question in context.

  1. Capacity to Make Medical Decisions

These medical Informed consent issues can include a range of capacities relating to what a patient is being asked to do – there is a range from the “mundane” question of whether the patient give informed consent to medical treatment or to decline such treatment; if the patient wishes to name a health care agent to make decisions for them in the event of their incapacity; and what about the capacity to make end-of-life wishes known with a living will?  Here the functional elements of these capacities can be broken down into four basic parts:

(a) To express a choice: The standard of expressing a choice refers to patients who are seen to lack capacity because they cannot communicate a treatment choice, or vacillate to such an extent in their choice that it is seen to reflect a decisional impairment;

(b) To exhibit understanding: The standard of understanding refers to the ability to comprehend diagnostic and treatment related information and has been recognized in many states as fundamental to capacity.

(c) To appreciate the implications of a particular choice or course of treatment. This aspect capacity has been described as the ability to relate treatment information to one’s personal situation. The standard of appreciation can reflect the patient’s ability to anticipate or infer the possible benefits of treatment, as well as to accept or believe a diagnosis.

(d) To rationally process information. This reasoning aspect of capacity involves the ability to recognize and offer rational explanations or to process information in a logically or rationally consistent manner.

Each of these aspects of medical capacity are interwoven into the ongoing conversation of one’s medical treatment and are of course highly subjective in many ways due to the individual patient’s own preferences or style of communication.

  1. Capacity to Drive an Automobile

This one is big for us Americans who don’t have so many public transportation options! The ability to drive is often one of the last things to go because it can in some ways restrict an elder’s ability to go places on their own schedule.  The AARP has an online defensive driving course and AAA has resources for getting evaluations of one’s driving skills as well as clinical assessments, but the “official” Colorado program is the Drive Smart program – click here for more information about it.  Under Colorado law, doctors (and optometrists) can provide medical opinions to the DMV concerning a patient’s medical condition and the patient’s physical or mental ability to safely operate a vehicle.  For more information about when an examination is required, here’s a link to a power point about it from the Colorado Coalition for Elder Rights and Abuse Prevention.

  1. Capacity to Make a Will

As an estate planning and elder law attorney, I meet with prospective clients and must make capacity determinations as a matter of course.  The ABA has a handy guide for lawyers and psychologists concerning assessment of a person’s capacity.  It is available here.  In order for an attorney to represent a client, an attorney must first establish that the potential client has the capacity to hire the attorney as well as direct the activities of the attorney.  We have a special rule of professional conduct which applies to clients with diminished capacity.

Historically, this testamentary capacity is at the lowest level along the capacity continuum.  In Colorado, the law is a bit less clear since the Breeden case, but  many states still recognize testamentary capacity as a separate and special category.  The Colorado probate code allows for a protected person (a person under a conservatorship) to make a will through the conservator. See Colo. Rev. Stat. §15-14-411.

One of the aspects of this low level of capacity required to exercise our testamentary freedom is that a will can be subject to challenge under some circumstances.  The person’s ability to make a will, or their testamentary capacity, can be the subject of a lawsuit known as a will contest.  Challenges to testamentary capacity often revolve around “undue influence,” in which a person challenges the will (and sometimes nontestamentary transfers as in the recent Colorado Appeals Court decision in Estate of Owens v. Dominguez).  Undue influence depends on many situational factors but generally can require a showing by the one challenging the will that: a person standing to benefit from the new will was in a confidential relationship with the testator (person making the will); that the person received a substantial benefit; from the testator who was suffering some mental, social or psychological impairment which compromised the testator’s mental capacity or independent thinking.

To conclude this post, if we think of capacity not just as a concept but as grounded in a particular context – as illustrated by the examination of capacity to perform a particular task, we can go much further in our examination of how much capacity is required and whether the requisite capacity is lacking.  From this contextual basis, we can then take a look at what type of assistance to “facilitate capacity” is appropriate and what kind of “assistance” is actually interference indicative of improper influence, exploitation or abuse.  I’ll write more on this topic this summer.

© Barbara E. Cashman 2017   www.DenverElderLaw.org