In Honor of Elder Law Month: The Law of Aging and the Study of Aging

 

Glass Dome of Ralph Carr Judicial Building

Glass Dome of Ralph Carr Judicial Building

May is national elder law month! As a member of The National Academy of Elder Law Attorneys, I proudly post a blog announcing this theme.  The law of aging? Do I mean physical laws, man-made or what – exactly . . .  Some of those, to be certain.  This another installment on my theme of looking at some of the effects of having so many more people around who are living longer than ever. I’ll start with what I know.  Elder law is a field of practice that is focused on the legal problems of the elderly.  It is not a practice area like securities regulation or DUI defense, where a practice is focused on a particular set of laws (including statutory and case law, along with regulations). No – elder law is a practice area concerned with the legal problems of people “over a certain age.”  Many persons who would be included in the group of “elders” would not consider themselves as such because they don’t think they are “old.”  As we all know, what is considered old is a sliding scale. For purposes of the federal Age Discrimination in Employment Act, the protected class of persons is people age 40 or older.  According to the new Colorado law for mandatory reporting of elder abuse, an elder is a person aged 70 or older.  So you can see that the legal system doesn’t have a clearly defined number when it comes to defining “elder.”

Gerontology is the study of aging and older adults. I am borrowing from the useful definition I found at the Institute of Gerontology at the University of Georgia’s College of Public Health.  They offer a further definition, one that is being updated as we go along:

The science of gerontology has evolved as longevity has improved. Researchers in this field are diverse and are trained in areas such as physiology, social science, psychology, public health, and policy.

A more complete definition of gerontology includes all of the following:

  • Scientific studies of processes associated with the bodily changes from middle age through later life
  • Multidisciplinary investigation of societal changes resulting from an aging population and ranging from the humanities (e.g., history, philosophy, literature) to economics; and
  • Applications of this knowledge to policies and programs.

Gerontology is a multi-disciplinary approach to the study of aging using research methods and applied science.  They didn’t specifically include law in their definition, but I am confident that the development of elder law is part of the evolution of the field of gerontology just as it helps inform the multidisciplinary investigation of the burgeoning number of elders in this country.  I haven’t looked into the career opportunities in gerontology, but I have been interviewed by a couple M.A. students from the University of Northern Colorado.  At first glance, I would imagine that there are many opportunities in this burgeoning field but that because it involves work with elders, it is not highly remunerative.  I did find that UCD offers an adult gerontology nurse practitioner certification.

The doctors serving the population of elders are diverse in their specialties, but the area focusing on the medical and health care needs of elders is known as geriatrics.  It is broad in scope and by its nature (at least in theory) looks at the whole person, with a view to maintain functional independence and self-determination.  Geriatricians are board certified in internal medicine or family medicine and have obtained a certificate in geriatric medicine.  At many geriatric doctors’ offices you can find a team that supports the doctor which might include: nurses, social workers, nutritionists, physical therapists, occupational therapists and other who have special training or experience in treating or working with elders (older adults).  As the baby boomers age, and many of the cohort include geriatric doctors and their staff, there may be a shortage of people equipped to treat this growing number of people.

Some of challenges of an aging population include the medical treatment of diseases associated with aging, and many of these have legal consequences.  Some of the diseases and conditions are Parkinson’s disease, different forms of dementia, diabetes, neurodegenerative disorders, heart disease, arthritis, osteoporosis and hypertension, to name a few.  Chronic diseases that so often in the past led to an early demise are now being managed more successfully.  Likewise, we are facing new medical challenges as a result of aging and its complications.

I recently met with someone who runs a local home care service.  These types of services can be key to allowing elders to age in place in their own homes by making it possible to stay put with the assistance provided by supportive services of providers who come into the home.  Many times people can stay at home and avoid altogether any period of needing to move to a residential facility that offers such services or institutionalization.  One of the topics we discussed was Colorado’s mandatory reporting law, which is now in effect and requires – beginning July 1, 2014 – the mandatory reporting of suspected elder abuse.  While we both strongly agreed that it was about time that Colorado had such protections in place, I mentioned to her that putting elders (people 70 and above) in a class of people does have certain implications for ageism and civil rights.  Don’t get me wrong – I think these protections and wider enforcement of the law are overdue, I just recognize that this area of the law – of determining whether an elder has been abused or exploited by another – contains a fairly large gray area.  The treatment of elders with dignity and respect in a way consistent with their civil rights and protecting them from and allowing fuller redress of exploitation and wrongdoing of others may be a bit of a challenge in many cases, where protection might really mean paternalism.  I will write more on this topic.  As far as I’m concerned, it is a new frontier of civil rights.

 ©Barbara Cashman  2014   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