Will you need a dementia specific advance directive?

Reflection on a Lake

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

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

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

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

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

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

What are our choices?

Do nothing and hope for the best. 

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

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

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

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

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

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

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

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

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

Medicare and the Midterm Elections?

On the threshold

The Future of Medicare as We Know It Will Be Affected by This Election

Medicare is the federal health insurance program for people who are 65 and older and a small group of other folks.  It consists of several parts: Part A (Hospital Insurance), Part B (Medical Insurance, which covers doctors’ services, outpatient care, home health services, and other medical services), and Part D (which covers outpatient prescription drugs).  The Congressional Budget Office states that

Nearly all Medicare beneficiaries enroll in the program soon after they become eligible, typically either at age 65 or two years after they qualify for Social Security Disability Insurance benefits. Part A benefits are paid from the Hospital Insurance Trust Fund (funded largely through payroll taxes); Part B and Part D benefits are paid from the Supplementary Medical Insurance Trust Fund (about 25 percent funded by premiums paid by enrollees and about 75 percent funded from general revenues).

I know of baby boomers who aren’t yet able to retire and qualify for Medicare who put off major medical care (to the extent is feasible) until they are covered by Medicare.  Medicare, such that it is, is a bright spot for most Americans who are retired.  But things are changing!

But Medicare may be under attack – at least according to Save Medicare Now,  whose website* lists these good questions to ask our elected officials and candidates:

•What specific steps will you take to preserve and strengthen Medicare for all beneficiaries, whether they are in traditional Medicare or a Medicare Advantage plan?

• How will you make Medicare more affordable for all the people who rely on it to make sure they get access to the care they need?

• Will you fight attempts to privatize Medicare by unfairly favoring private Medicare Advantage plans and/or by turning it over to big insurance companies?

• Medicare is a popular program, but there are significant gaps in what it covers, including most oral health, vision and hearing care. Do you think Medicare should cover these things? If so, how do we get there?

• Most people want to remain in their own homes as long as possible, but Medicare makes it hard for people with chronic conditions and longer-term illnesses to get home health care. Will you help ensure that all people who qualify can get home health care under Medicare?

• Some hospitals pretend people haven’t been formally “admitted” and are just “under observation” so they must pay out-of-pocket for nursing home care after they leave. Would you support pending legislation that would count all time a Medicare patient spends in the hospital toward the 3-day requirement to get nursing home coverage? What about removing the requirement altogether?

• At best you can generally get only 100 days of nursing home coverage if you are on Medicare. Do you think Medicare should include a long-term care benefit? If so, how would you accomplish that?

What Can We Do About Our Ever-Rising Health Care Costs?

This seems to have become something we all expect – that health care costs continue to rise in this country and as the baby boomers age, and these result in greater per capita costs to Medicare.  Did you know that the Affordable Care Act helped to reduce Medicare spending?  Remember all those tax cuts from earlier this year?  Many of the people left behind on those tax breaks are going to start feeling the pinch soon. The midterm elections may determine whether our elected officials in Washington choose to strengthen Medicare or to gut it.

If this is news to you, consider that cutting Medicare is one way that some members of Congress would manage the deficit.  This is an interesting development, particularly considering that a “Medicare for all” options is becoming more popular, even among Republicans.

Hmmm…. Maybe we need a health care revolution to stop our bleeding?

I often wonder when the credit agencies will start asking folks not what their monthly rent or mortgage payment is but rather what their monthly health insurance premium is!  My monthly premium for my HSA qualified plan (among the cheapest available) continues to rise and for the last couple years it is larger than my mortgage payment!

That’s all for now and don’t forget to return your ballots on time!

*Thanks to Professor Rebecca Morgan, a contributor to ElderLawProfBlog for psoting about the Center for Medicare Advocacy’s  website Save Medicare Now changes to Medicare.

©2018 Barbara E. Cashman, www.DenverElderLaw.org

 

 

Memento Mori: Bringing Death Into Conversation

Memento Mori – from Kirkwall, Orkney Islands

Memento Mori: Remember Death, That You Will Die

Last weekend I attended the International Death Symposium in Toronto, Canada. I went with a friend who is a Canadian death midwife.  We both enjoyed it. It was a rather extraordinary place to be, amidst an entire community of folks committed to dispelling the death taboo.  The presenters and attendees were Canadians mostly, some Americans and an Irishman who spoke eloquently about his father’s death and wake.

So, what is conversation anyway?

Definition of Conversation

1 obsolete : CONDUCT, BEHAVIOR

2a(1) : oral exchange of sentiments, observations, opinions, or ideas

… we had talk enough but no conversation; there was nothing discussed.

—Samuel Johnson

(2) : an instance of such exchange : TALK; a quiet conversation.

Of course, I couldn’t mention “conversation” without a reference to The Conversation Project, which is a very useful tool to help people (like many of my clients) toalk about the end of their lives and express their wishes and values around that part of life.

In this post, I’ll share a couple highlights from the symposium. One of the “rocks stars” who presented was BJ Miller, a hospice doctor from San Francisco.  You can watch a video here about the “problem of death” in our medical delivery system.  Part of his presentation at the Symposium addressed the conflict of aesthetics of caring for the dying and the widespread use of anesthesia.

Aesthetic versus Anaesthetic

My late mother, an R.N. who received her nurse’s training through the Nurse Cadet Corps, would have been thrilled to hear an M.D. make reference to the work of a nurse.  The nurse was none other than Florence Nightingale, the “mother of nursing,” who wrote about the aesthetics of caring for patients.  Miller contrasted Nightingale’s insistence on aesthetics – a set of principles concerned with the nature and appreciation of beauty – with the current widespread use of anaesthesia (or anesthesia in the US) which is the numbing or rejection of aesthetics in favor of

Insensitivity to pain, especially as artificially induced by the administration of gases or the injection of drugs

In this place of intersection between our ability to sense and perceive beauty with the selfsame capacity to sense pain, what do we make of our commonly accepted and pervasive use of drugs in this country (and so much of the west) to numb us down to “ease our suffering” regardless of where in our lives we encounter that suffering?  It could be at the end of our life, somewhere in-between for a surgical procedure, or it could become a lifestyle treatment for anxiety and depression.  Does it matter where the suffering occurs for which we seek anesthesia?

Our Sense or Capacity to Appreciate the Beautiful is Inextricably Linked to Our Capacity to Feel Pain

Isn’t the pain of dying just the pain of living at a time of greater uncertainty?  Why do we pretend we can draw the distinction so clearly –  particularly during a time of unprecedented numbers of people dying of drug overdoses?  I’m not talking about the present opioid crisis – a recent study has shown that our current opioid overdose epidemic actually began forty years ago and has been increasing – exponentially – since then!

How and why we distinguish between the pain of living and the pain of dying . . .  well, that’s a topic for another blog post!

I’ll write more soon about the Symposium.

I’ll close with Emily Dickinson’s Because I Could Not Stop For Death

Because I could not stop for Death –

He kindly stopped for me –

The Carriage held but just Ourselves –

And Immortality.

 

We slowly drove – He knew no haste

And I had put away

My labor and my leisure too,

For His Civility –

 

We passed the School, where Children strove

At Recess – in the Ring –

We passed the Fields of Gazing Grain –

We passed the Setting Sun –

 

Or rather – He passed us –

The Dews drew quivering and chill –

For only Gossamer, my Gown –

My Tippet – only Tulle –

 

We paused before a House that seemed

A Swelling of the Ground –

The Roof was scarcely visible –

The Cornice – in the Ground –

 

Since then – ‘tis Centuries – and yet

Feels shorter than the Day

I first surmised the Horses’ Heads

Were toward Eternity –

From The Complete Poems of Emily Dickinson, Thomas Johnson, ed.

That’s all for now, next time I’ll post about the Phone of the Wind, a.k.a Kaze No Denwa

© 2018 Barbara Cashman  www.DenverElderLaw.org

Observing World Elder Abuse Awareness Day, June 15, 2018

A Wee Highland coo…

WEEAD is Friday! If you want to show support in social media for this day, try this Thunderclap link to add your voice.  I write this post after a move to a new office, which is comfortable and spacious, where I am nestled amidst tenants who are friendly and engaging.  It has happens to be just a few blocks from where I attended junior high school.

Community has many definitions depending on the various contexts of our interactions with each other and where we are interacting with each other.  A big part of community is seeing the other person and being seen by another. Being seen is something we take for granted.  Last week, a man hid himself under the front of a public bus, which then dragged the man’s body nearly half a mile until coming to a stop.  This took place on the street where my office is located, right in front of my office window.  But I didn’t see it happen.  The bus driver obviously didn’t see the man, which ended in the man’s tragic death.  It seems that our ability to see one another is becoming increasingly more difficult.

WEEAD – Prevention of Elder Abuse Begins with Seeing Elders as a Contributing Part of Our Community

In our world, seeing is a precursor to engaging with the other.  Engagement can lead to effective participation.  Take a look at this link to The Road to Elder Justice Virtual Art Gallery with many beautiful expressions of what elders contribute.  On this WEEAD, events are scheduled in nearly every state to raise awareness.  Check out this event organized by the Boulder County Area Agency on Aging.  Here’s a link to a Facebook Live broadcast today at 5:00 p.m. MDT about how the Office of the Inspector General at the Social Security Administration detects and prevents suspected elder financial exploitation  and how people can protect themselves and others from mistreatment.

A question follows: what do we see about elder abuse and how do we see it?

One helpful resource has identified the beliefs about elder abuse as “the swamp:” which includes limiting beliefs (often mistaken for conventional wisdom…) such as:

modern life is the problem – we simply don’t care enough about older people so caregivers are pushed to the limit and older people are devalued;

there are not enough resources for any solutions – there is not enough money for prosecution and surveillance of perpetrators, or raising awareness and education about elder abuse to help recognize it or for providing support for caregivers and as a result, nothing can really be done;

the individuals affected are really the problem – perhaps these elders had it coming as payback, many older people are difficult to deal with or have personal weaknesses, the perpetrators are greedy, lazy, opportunistic, or bad people who cannot be deterred, and we’re either all responsible for it or no one is;

elder abuse is vaguely defined and hard to recognize for many people – elder abuse as such is not acceptable, but many forms of neglect don’t qualify as abuse, including sexual abuse of elder women.

This ”swamp” thinking described above is hardly “thinking”, as these represent only relatively common types of limiting beliefs like: universalizing a problem to inflate its significance and make “solving” it impossible; personalizing elder abuse to make it only about certain types of individuals who are affected; catastrophizing it so that the only “response” can be hand-wringing; and making unrealistic or false distinctions about what is acceptable behavior and what is not so as to make identification of the real problem impossible.

We Must Refuse to Accept That Elderhood is Only About Loss and Marginalization

Like the “swamp thinking” above, many of us have unexamined beliefs about what it means to be “old.”  These beliefs can reflect scarcity beliefs and thinking about the world each of us lives in.  Those beliefs can dictate what we see in elders and how their role in society is marginalized. In this respect, the marginalization of elders as a kind of “lesser than” or “has been” segment of our culture and economy becomes a kind of collective self-fulfilling prophecy.  Sociologist Robert K. Merton coined that phrase in 1948 with these terms:

The self-fulfilling prophecy is, in the beginning, a false definition of the situation evoking a new behavior which makes the original false conception come true. This specious validity of the self-fulfilling prophecy perpetuates a reign of error. For the prophet will cite the actual course of events as proof that he was right from the very beginning.

Looking at the relationship between our diminished expectations of what is possible in elderhood and what we expect to see, based on our expectations, generally leads to …  These expectations become the self-fulfilling prophecy, for ourselves and for others.  But, this challenge becomes an opportunity to change our perspective and change our minds.

There are good resources available that help us to reframe the story of elder abuse from one based on inevitable decline, vulnerability and victimhood to a story from a different perspective, reframed to tell of empowering ourselves and elders to engage with and participate in pro-social activities designed to strengthens the ties which already exist – instead of disowning them because of some of the difficulties we have come to experience.

I will write more about pro-social behaviors we can nurture and support to prevent elder abuse – as individuals and collectively.

© 2018 Barbara Cashman  www.DenverElderLaw.org

May is National Elder Law Month!

Italian Door

Did you know that the first recognition of this month was in 1963, when President Kennedy declared it to be Senior Citizens Month to honor those 65 and older?

I am observing it in my way by continuing to post about topics relevant to elders and the rest of us who aspire to become “senior citizens” …  Today’s post is another in my series on guardianship reform.

I recently read a new publication by Thomas Lee Wright, The Family Guide to Preventing Elder Abuse (2017: Skyhorse Publications). Wright also produced Edith and Eddie,” the 2018 documentary short Oscar nominee, which you can watch here.  I watched this poignant short film about a newly married nonagenarian couple.  There were many things in the short that were left out of the film which concerned Edith’s dementia.  The film could have gone into detail about the legal wranglings relating to Edith’s guardianship, but it didn’t.  To my mind, the beauty of the story was its simplicity: their love for each other.  I don’t want to give a spoiler alert concerning the sad ending, suffice it to say it had to do with Edith’s guardian’s decision-making authority.

Back to the book.  Many aspects of Wright’s book I found to be informative and helpful, but one of the shortcomings I sometimes find about books of this nature which originate from an author’s personal experience, is that its scope tends to be narrow and somewhat reactive to the situation with which the author unfortunately was made familiar.  I did like that many of the chapters are written by others with expertise in the field about which they write and provide different perspectives.

Are the Probate Attorneys and the Guardians of Incapacitated Elder Adults Part of the Solution or Part of the Problem?

As an attorney representing clients involved in protective proceedings or related matters, I work in an imperfect system.  Sometimes I struggle to explain to clients why things work the way they do.   Sometimes they ask me why it is so hard, why it has to be so difficult to take care of a parent.  My answer is always the same: if it were easy to do the right thing, we would live in a vastly different world. There is no black/white or right/wrong in our legal system, even fewer in probate matters as there are many perspectives and viewpoints of someone’s “best interests” in probate court.  A colleague once referred to it as “like a divorce except with five people involved.”  It is in this sense a branch of domestic relations court.

Why is this observation important? Each of us – attorney, client, as well as the other involved in proceedings (and there can be a rather large cast of characters) always need to keep in perspective that we have our own perception of what is happening and why, our own beliefs about what is in another’s best interest, and our probate court system tries to account for these things while respecting due process rights of the elder involved who is not able to make or communicate important decisions relating to the court proceedings.

But I digress, so back to the book… of interest to me were chapters 7 “Working with Professionals” (doctors and lawyers) and chapter 8 “Abusive Guardianships.”  Chapter seven addresses how to work with doctors and lawyers.  Many of my clients with whom I work have not previously hired an attorney.  There are many things to consider in hiring a lawyer in the elder law context, but I think the most important considerations are working with someone you feel you can trust, he uses clear and effective communication skills and answers your questions and provides guidance.

As for chapter eight, I found the co-authors’ very brief “history” of guardianship law to be not helpful and its broad statement concerning the standard of proof in guardianship proceedings is misleading and could easily have been corrected with fact checking.  In Colorado, the standard of proof for establishing a conservatorship is a preponderance of the evidence, while for a guardianship the standard is clear and convincing evidence.  There is no “one size fits all” preponderance of the evidence burden of proof in civil proceedings.

I also found their use of the term “predatory attorneys and guardians” to be vague and misleading.  I was not sure whether the term was used to refer to professional guardians and there were few details to flesh out the use of these terms.  As an attorney in Colorado, I can say that in a Petition for Guardianship or Conservatorship, I must alert the court as to the existence of a medical or general (financial) power of attorney and will typically explain in the Petition why the agent is unable to perform their duties as anticipated.  The advance planning in the form of POAs is not just summarily chucked out the window!

Advance planning does not work 100% of the time.  Complications can arise when an agent is no longer willing to perform because the job is too difficult.  In my practice this typically takes place because of family dynamics and as a result of sibling relationships becoming more fractured and hostile due to an elder parent’s cognitive decline or incapacity.  Sadly, some children readily take advantage of the situation, sometimes out of a sense of entitlement, that the parent “owes” them, or because they have nurtured a lifelong grudge against the sibling who is selected as the parent’s agent.  Sometimes it’s one child with a “misery loves company” modus operandi, these folks are very troubling to their unwitting parent and the adult child the parent has named to assist the parent as agent.

By the time an adult enters the probate court proceedings as a “respondent” named in a Petition for Guardianship or Conservatorship, the elder parent may be in the final stages of advanced dementia and barely rooted in time and place. Court appointed counsel, known as “Respondent’s counsel” may or may not be able to adequately represent the Respondent’s legal interests due to communication difficulties and a court may find it necessary to appoint a Guardian ad Litem to represent the Respondent’s best interests.

No Respondent Goes Willingly to the Hearing on a Petition for Guardianship!

I have yet to hear an elder respondent state, “why yes, your honor, I have really been slipping cognitively and need the court to appoint someone to take care of everything and make decisions for me.”  The cognitive impairment of an elder is often barely noticeable because it tends to happen over time, often gradually.  Some elders refuse to go to a doctor because they suspect they will get a dreaded diagnosis they don’t want.  I sometimes refer to Alzheimer’s as a contagious disease because it often happens that the denial that something is terribly wrong is shared with a spouse, adult child and sometimes others close to the elder with cognitive impairment that puts them at risk to financial predators.  Couple this with the fact that there is no medication to slow the decline or reverse the losses and the result often means waiting until a catastrophe has taken place.  Maybe mom gave away $30,000 of her $60,000 life savings to one of her kids or to a neighbor or to purchase lottery tickets.

There is neither a simple nor an easy solution to this challenge to our legal system.  It will only become bigger and more complicated as the numbers of old and cognitively impaired baby boomers rise and their often fractured family relationships contribute to the dysfunction.

In the next post on this topic I will look at standards for appointing a guardian or conservator as well as the oversight by the court system of these proceedings, which can cover a long span of years.

© 2018 Barbara Cashman  www.DenverElderLaw.org

What Might Guardianship Reform Look Like?

Sienese Sculpture

 

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

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

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

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

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

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

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

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

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

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

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

© 2018 Barbara Cashman  www.DenverElderLaw.org

Does Guardianship Law Need Reform in Colorado?

guardianship reform

At the Threshold

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

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

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

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

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

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

  • Stronger procedural due process protections in the appointment process;

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

  • Guardian accountability and court monitoring; and

  • Public and agency guardianship.

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

Is Guardianship Usually Considered a “Last Resort?”

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

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

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

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

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

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

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

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

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

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

© 2017 Barbara Cashman  www.DenverElderLaw.org

Is Guardianship Reform Coming to Colorado?

One Stone of an Ancient Ring

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

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

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

The Uniform Guardianship, Conservatorship and Other Protective Arrangements Act

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

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

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

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

In coming posts, I will explore topics including:

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

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

© 2017 Barbara Cashman  www.DenverElderLaw.org

 

The Perils of Elderhood: Retirement Insecurity

Florentine graffiti… what me worry?

The road to elderhood, a successful elderhood at least – relies upon a foundation built on experience.  The experiences of this “newness” to one’s old age or elderhood, implies that in the second half of one’s life we can utilize our experiences of trauma, grief and pain which we all experience in the first half of life and translate them into our own personal form of resilience.  Well, that might be a goal at least.  How many of us get evaluated or graded upon these kinds of things? Hmmm, not many – particularly when many of us who have reached that “certain age” as the French call it, care less about what others might think of us. Retirement insecurity can take on many characteristics including depression due to a lack of a purpose to get out of bed or a place to go, not knowing where we “fit in” in the new world of retirement, determining where we want to live if our grandchildren are far away, and so on.

Change Typically Makes Us Feel Insecure

So, can this story of one’s elderhood be a “new” story for us?  I think the answer is a resounding “yes” – this notwithstanding my lack of reference to a single “self-help” book! Acknowledging the hurts and harms we sustained in the past and being with them to the extent that we neither deny their existence nor do we fixate on trying to heal those hurts.  Maturity here calls forth both a degree of necessary resilience as well as a certain perspective taking which is not “all about us.”  The funny thing about time and our relationship to it is that we are always able to remake and retool that relationship.  I think about the oft-used saying that it is “never too late to have a happy childhood.”

We Can Plan For Some Semblance of Security and Adjust Our Expectations

I will use the quote by Antoine de Saint-Exupery (author of the beloved story The Little Prince) on this topic:

The time for action is now. It’s never too late to do something.

The number of boomers inching into retirement continues to rise, this notwithstanding the changes and insecurity that retirement brings.  I have heard many people say that they can’t afford to retire and they will just keep working. . . but this is often realistic because it ignores some of the challenges that come with aging and assumes that there will be a job or some form of suitable employment.  Here’s a recent Washington Post article about financial insecurity in retirement.

As the U.S. government Accountability Office recently observed in a report – financial insecurity is trending.  I’m not quite sure what that means – but I don’t think it’s a good thing!  Section four of the GAO’s 173-page report examines the need to re-evaluate the nation’s approach to financing retirement.  It notes:

Over the past 40 years, the nation has sought to address the issues facing the U.S. retirement system in a piecemeal fashion. This approach may not be able to effectively address the interrelated nature of the challenges facing the system today. Fundamental economic changes have occurred, as well as the shift from DB to DC plans, with important consequences for the system. Further, it has been nearly 40 years since a federal commission has conducted a comprehensive evaluation of the nation’s approach to financing retirement. A panel of retirement experts convened by GAO in November 2016 agreed that there is a need for a new comprehensive evaluation. The experiences of other countries can also provide useful insights for ways to improve the system.

There are numerous articles about the failed IRA and 401(k) experiments as a replacement for defined benefit (DB) plans, a/k/a pensions, but I will steer clear of those.  These plans have encouraged Americans to save for their retirement, but about half of Americans aged 55 or older have NO retirement savings in an IRA or 401(k).  But here is a link to a Forbes article which disputes the dire findings of the GAO report for its failure to account for valuable pensions.

It’s Not Too Late to Plan for Or Scrutinize Our Retirement Budget Expectations

So, retirement saving and planning is both an individual and a collective phenomenon, that’s nothing new – but what about those factors affecting the sufficiency of our retirement income based on our savings, pension and social security income?  How much money will we need in retirement? The answer is, of course – it depends!

The single biggest expense that faces Americans in retirement is health care and it is under attack once again, this time in the form of tax legislation which the Congress is still working on, but the handwriting was on the wall for Medicare when the 2018 budget was recently unveiled.   We still don’t have any details about the tax package.

How Many Elders Will Be Able to Afford Medicare Coverage in the Coming Years?

Here is a 10/27/17 article from the Kaiser Family Foundation which examines how the loss of the ACA’s Cost-Sharing Payments will affect insurance premiums in 2018.  While the costs of health care in retirement remain largely uncertain and unknown for most of us, an article from last summer estimated that health care will cost couples $275,000 in retirement.  Wow!  What happens to those elders who can’t afford the Medicare premiums, co-pays and deductibles?

It is extremely difficult to anticipate how much coverage will be left in Medicare as well as how much it will cost in premiums. Here is a link to the 10/26/17 AARP’s  “Premium Support is the Wrong Direction for Medicare: Highlights from a New Research Report.”  The Urban Institute’s 10/26/17 Report, on which the criticisms of restructuring Medicare premium support is based, is available here.  The conclusions include several areas of concern around the effects of premium supports, which they conclude would drive up premiums, making better plans much less affordable, along with the prospect that in some areas, private plans may no longer be available.    These effects would not lead to any increase in choice, but would lead to homelessness and hardship among elders, as one source reported only a few days ago.

Perhaps elders still have some voice in stating preferences about how they will be affected by changes to Medicare. . . .

© 2017 Barbara Cashman  www.DenverElderLaw.org

Elder Abuse and Domestic Violence

Elder Abuse Hastens Death

October is domestic violence awareness month.  I have previously explored some of the links between these two dangerous expressions of violence -elder abuse and domestic violence, but I thought it was time to delve into this topic a bit more deeply.  The National Committee for the Prevention of Elder Abuse identifies domestic violence as

an escalating pattern of violence or intimidation by an intimate partner, which is used to gain power and control.

Two broad categories of domestic violence against the elderly can be identified:

“Domestic violence grown old” 

is when domestic violence started earlier in life and persists into old age.

“Late onset domestic violence”

begins in old age. There may have been a strained relationship or emotional abuse earlier that got worse as the partners aged. When abuse begins or is exacerbated in old age, it is likely to be linked to: events such as retirement, disability, changing roles of family members and sexual changes.

Many people might find it curious that some elders would enter abusive relationships late in life, but there is a strong connection between elder abuse and family violence.  Family violence can manifest in a variety of ways, from callous and violent actions toward a pet or other animal which can often lay the groundwork for the “power over” relationships with others, particularly those who are in low power positions such as elders.  Following on this thread, the American Humane Society has identified connections between animal cruelty and human violence.

Effort is Needed to Improve and Streamline the Collection of Data and the Study of Elder Abuse

The study of elder abuse – encompassing its variety of forms and definitions – is still in its infancy.  The Urban Institute’s research report from June 2016, What Is Elder Abuse? A Taxonomy for Collecting Criminal Justice Research and Statistical Data, notes that there is no uniform, national-level definition of elder abuse because the response to elder abuse has occurred primarily at the state and local level.  The report’s proposed taxonomy seeks to grapple with the disconnect between estimating the incidence of elder abuse nationwide when there is such a wide variation in definitions of elder abuse among the states, not to mention how these incidences of such events or crimes is reported among the states.  The report looks at the many layers of elder abuse in terms of what types of acts constitute elder abuse; what kinds of people are the victims; what is the relationship between the perpetrator and the victim; when is elder abuse a crime or not a criminal offense, and why it is important to collect data concerning reports which fall below the threshold of elder abuse.

The fact that the study of elder abuse  – as a form of interpersonal and often domestic or intimate partner violence – is in its infancy does not mean, however, that there are not valuable and helpful resources available, such as these resources from the National Center for State Courts’ Center for Elders and the Courts, which offer educational information for laypersons as well as proposed standards for state courts to improve the courts’ ability to recognize and effectively respond to victims of elder abuse, as well as offering guidance to guidance to and effectively prosecution of these offenses by law enforcement.

The Troubling Intersection of Domestic Violence and Elder Abuse for Elder Women

One of the troubling intersections I came across in research for this post was the element that the elder woman victim may need to pay close attention to which state “system” she enters to report the abuse, as the domestic violence and adult protective service agencies operate independently and define causes of abuse differently.  I found a very helpful article on this topic published by two faculty members of the School of Social Work at Loyola University Chicago.

Fortunately, there is a developing approach to the challenge of identifying, reporting and prosecuting elder abuse which is multidisciplinary in nature.  Not all elder abuse is criminal.  For most of us practicing in the field of elder law for more than a “few years,” there was often a refrain from a law enforcement agency that the alleged abuse was not serious enough (or not a large sum of money involved) to warrant prosecution and so was “a civil matter.”  I remain concerned that there is a wide gulf between what is sufficient to activate the criminal prosecution of elder abuse and how the civil law (including probate proceedings) can provide applicable and appropriate relief to the fullest extent appropriate.

I believe the best policy is to have persons unsure about reporting suspected elder abuse to make the call to law enforcement so that the appropriate government authority can determine the scope of the investigation of the suspected abuse and whether it is appropriate for prosecution.  This reporting, even if it results in no investigation or subsequent prosecution, remains important for data collection purposes.  In this context, as in so many others. . ..  information is power.

© 2017 Barbara Cashman  www.DenverElderLaw.org