The Dead Girl Who Continues to Live

Death Upside Down

Four years ago I wrote a post entitled “When Death Is Not Death: Stumbling Over the Parameters of “Brain Dead” about brain death and other medical-intellectual curiosities.  Turns out that one of the young women whose “brain dead” status I described is still. . . not dead, er… rather alive.  Alive for some people, seems to mean “brain dead” for others!  I read with interest Rachel Aviv’s Feb. 5, 2018 New Yorker article  about Jahi McMath, the teenager who suffered complications from a December 9, 2013 tonsillectomy at an Oakland, California hospital.  Some of the story is about our “health care system” and its values – about whose life matters, what condition of life passes for death.  The biggest challenge I see for all of us and this predicament we find ourselves in with health care in this country – is the dogma of the medical-industrial complex and its insistence on getting everyone “in line” about what passes for death and training us to simply not question the information we are given by the professionals reading the diagnostic screens.

Acting “As If” Death Had a Clear Legal and Medical Definition

To the extent we privilege the measurement of brain activity as a measure of our consciousness, as an indicator of the proof of our existence, we deny the underlying philosophical problem of defining or delimiting life and death (and consciousness).  Our present obsession with the measurable quantification of our biological activities is a major component of our current health care system.  We love the pictures of our insides and their operations in “real time.”  As long as we continue to collectively pretend that one’s existence can be verified by a particular type of brain scan, we will remain in denial.

But that denial is often a safe place, based on the “safety in numbers” type of thinking and as a result of the unquestioned power that doctors have and wield over us with their technocratic medical delivery system.

The Audacity to Think – or Rather Believe – That Our Technology Alone Can Be Used as a Means of Extending Someone’s Life by Prolonging Rudimentary Bodily Functions.

I talk to many people who confuse life support with extending one’s life and also with prolonging the dying process.

How do we tell the difference?  Why, ask the doctors!

Can I be kept alive indefinitely against my will? I haven’t heard that question yet, but I suspect there are versions of it being asked.  I am not comfortable handing over my authority to a health care provider who refuses to consider (let alone struggle with) the bigger questions about life – and death.

At a fundamental level, Jahi McMath’s story is about her family members who simply refused to believe what they were being told by the doctors.

One of the neurologists who examined Jahi McMath was the recently retired chief of neurology at Olive View – UCLA Medical Center.  Dr. D. Alan Shewmon was no stranger to cases where patients – many of them children or youths, survived for months or years after being declared brain dead by the medical establishment.  You can read his 1997 article “Recovering from Brain Death: A Neurologist’s Apologia”   here.

No answers in this post, only questions.  How far does the death taboo extend to our thinking or believing (which are often indistinguishable) about what passes for life?  In our brain-obsessed culture that is fascinated with measurements and arriving at the quantifiable, where does the subjective and mysterious show up – or is it simply banished and its existence denied?

© 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

Giving Tuesday – Consider Giving Some Time to an Isolated Elder

Make the Connection!

Today is Colorado Gives Day!

Otherwise known as Giving Tuesday, the day designed to spotlight opportunities for people to give to charitable causes.  The day seems to have come into existence when two organizations, the 92nd Street Y in New York City and the United Nations Foundation came together in October 2012, with the intention to set aside a day that was all about celebrating the generosity of giving, a great American tradition.   According to USA Today, Giving Tuesday raised $180 million in online donations.  That is nothing to sneeze at!

Donating Locally is Easy!

Here in Colorado, we’ve got our own website with over 2,000 nonprofits listed to receive donor’s contributions.  You can visit the website and find a good place for your donation to support if you’re at a loss about which type of charity you’d like to benefit.

Instead of highlighting the worthy nonprofits which serve low-income elders, I’m looking at Colorado Gives Day with a different goal in mind – to raise awareness about reaching out to socially isolated elders in our communities.  I’m not just talking about making contact with folks who reside in senior housing residences, assisted living or skilled nursing facilities, but also to those elders who are “gaining in place” in their own homes and face considerable social isolation based on a number of factors.

What About Donating Your Time?

One way to ease an isolated elder’s isolation and also solidify our own connections with community members we might never have otherwise met – is to volunteer our time – even if for a few short minutes or hours.

You can easily volunteer your time locally through a nonprofit like Metro Volunteers, who will match your skills with a nonprofit looking for someone with your skills.  Whether it is a board of directors position you seek, a mentoring opportunity with a youth, or serving food to people at a shelter – Metro Volunteers can assist.

But the focus of today’s post is about giving time to an elder who is isolated.

There are numerous article and research into the effects of loneliness on the elderly population.  One recent study concluded that loneliness is a significant public health concern among elders.  In addition to easing a potential source of suffering, the identification and targeting of interventions for lonely elders may significantly decrease physician visits and health care costs.

Decreasing an Elder’s Sense of Isolation Helps Prevent Elder Abuse

I’m reposting a link from an elder abuse prevention listserve I am part of, originally posted this morning by the Social Media Manager of the NYC Elder Abuse Center at Weill Cornell Medical College.  The holidays are difficult times for many of us.  She writes “During the holiday season, family gatherings are more commonplace. Older adults feel social isolation more acutely, yet crave the connection. This holiday season NYCEAC is asking our social media followers to commit to have a conversation with an older adult in their life during the month of December. We know everyone benefits from a connection, and improves the health of the community at large, too.” We’re calling our campaign Countering Isolation, or #CounteringIsolation.

Remember that this type of giving of our time to another who doesn’t have the physical, psychological, financial or emotional wherewithal to engage in the broader community is a good thing with many positive benefits for us,  Happy Giving Tuesday!

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Dreaming Into Dying: A Practice for Letting Go

 

dreaming-into-dying

Patience

I thought since last week I wrote on the topic of dreaming into retirement, well – why not take it a step further and look at dreams of the dying or dreams of death?

Research Into Dreams of the Dying

Here’s an interesting article from the New York Times February 2, 2016.  The story is about some work from a team of researchers led by Dr. Christopher Kerr at Hospice Buffalo.   The study was conducted with fifty-nine terminally ill patients, nearly all of whom reported having dreams or visions, most of which were comforting.  The article noted that

The dreams and visions loosely sorted into categories: opportunities to engage with the deceased; loved ones “waiting;” unfinished business. Themes of love, given or withheld, coursed through the dreams, as did the need for resolution and even forgiveness. In their dreams, patients were reassured that they had been good parents, children and workers. They packed boxes, preparing for journeys, and, like Mr. Majors, often traveled with dear companions as guides. Although many patients said they rarely remembered their dreams, these they could not forget.

Reading about “traveling companions” reminded me of a dream my father related to me some weeks before he passed away.

Dreams and Dying as Part of Life’s Process Toward Completion

The article and the research it discusses are remarkable because it addresses one of the taboo subjects around dying as a life process – is there preparation for it with our psyche’s assistance (through dreams or visions) and whether persons sometimes know in advance that death is imminent (notwithstanding the lack of knowledge of an illness).  Our cause and effect, materialist-objectivist obsession with measuring what we can know (or pretend to know, if enough people are in agreement) generally simply denies outright the mystery of the end of life.  But as more people die at home or with hospice and palliative care providers who are not leading a pitched against the “enemy” – collectively disease and death – it seems that we are gaining more personal experience with death and dying.  It might represent a gradual questioning or moving away from the model of technocratic dying in hospitals, where expressions of our relationship with and compassion for dying loved ones generally had to be subjected to the intrusions of our medical-industrial establishment and its protocols administered by “experts.”

A Scientific American Mind article entitled “Vivid Dreams Comfort the Dying” also explored Dr. Kerr’s work, which was published in the American Journal of Hospice & Palliative Care.  It seems that the conclusions are likely to be consistent with dreams of dying and deathbed visions and visitations recorded throughout history: that most of the time the person is comforted by the dream or vision of their impending demise, as if Psyche were assisting with the transitions as a kind of midwife.

The Experience Is More Likely to be Labelled a “Vision” if it is Comforting to the Dying Person

If the experience is upsetting to the person, typically a patient receiving hospice care, it might otherwise be termed a “hallucination” or “delirium.”  But I like the unequivocal language of this post from Crossroads Hospice about end-of-life visions:

These visions are not hallucinations or a reaction to medication. The most important thing to do if your loved one is seeing visions or having visitation dreams is to acknowledge and support them. Do not argue with your loved one about the experience, correct them, or try to explain the vision. Do not panic as that can upset your loved one. Instead, take them at their word and encourage them to share the experience with you.

“As a caregiver, it is not our job to prove, disprove, or do experiments,” says Carolyn. “We are there to provide support and comfort.

In most cases, these end-of-life visions are indeed a source of great comfort to the person experiencing them.

It’s reassuring to know that as more people are able to die at home with support from hospice care provided, this aspect of the death taboo is losing more of its sting.  A link to one last resource guide is in order, this one McGill University called “Nearing the End of Life: A Guide for Relatives and Friends of the Dying.”

© 2017 Barbara Cashman  www.DenverElderLaw.org

 

The Dreaded “O” Word and Aging Into Wisdom

Old

 

I recently attended an educational lunch program put on by a financial advisor at a restaurant downtown.  It was geared to attorneys and their retirement planning needs. Most of us in attendance were “old enough” to be planning for retirement already and we had a number of questions answered.  A latecomer to the program arrived after we had finished our lunch.  He proceeded to ask our host a question about a “hypothetical 75 year old” but I suspected this colleague’s age to be well in excess of 80 years.  What really struck me however, was his use of the expression “O word” as if to acknowledge some common implied cultural unwillingness to use the term “old” as if it were a pejorative term.  I was both puzzled and troubled by this use of the term which I had never heard before, let alone from the mouth of an octogenarian!

So maybe there’s more than a few of us who simply refuse to accept this aging thing that we do, but I insist that there is a bright future for wisdom in elderhood. . . Here’s a link to a New York Times article  from 2014 about the science (from a psychological perspective) of “older and wiser” and  a short article from last month in Psychology Today entitled “Are Older People Wiser?”

Wisdom is one of the very few positive stereotypes of elderhood, but it’s of course not necessarily true.  A passive aging focused on the denial of age and eventual death does not lead to a ripeness of wisdom in one’s elder years. The jury is still out on this “older and wiser” issue, but while elders’ brains generally slow down, an elder’s experience and knowledge can make up for the shortcomings in processing speed and distractibility.  But getting to elderhood requires one to accept and even embrace our aging, learn from experience and to grow one’s knowledge along the way.  If we’re busily engaged with denying our aging, resenting that we’re “not who we used to be,” then that wisdom piece will remain elusive because we are failing to come to terms with a most basic premise of this life: the length of a life is uncertain and all we truly have is the present.

So, what is wisdom?  I liked these two definitions found at the Collins dictionary:

Wisdom is the ability to use your experience and knowledge in order to make sensible decisions or judgments; and in American

the quality of being wise; power of judging rightly and following the soundest course of action, based on knowledge, experience, understanding, etc.; good judgment; sagacity

There is also the wisdom tradition, which is synonymous with Perennialism, defined in Wikipedia as “the idea that there is a perennial or mystic inner core to all religious or spiritual traditions, without the trappings, doctrinal literalism, sectarianism, and power structures that are associated with institutionalized religion.”

So I turn to a favorite classic of literature here, Aldous Huxley’s The Perennial Philosophy, finding particularly relevant his quote of Francois Fenelon (at 257 of the Harper Perennial Modern Classics edition) to the subject of wisdom as an outgrowth of embracing the aging process as part of our experience of our selves:

Faults will turn to good, provided we use then to our own humiliation, without slackening in the effort to correct ourselves.  Discouragement serves no possible purpose; it is simply the despair of wounded self-love.  The real way of profiting by the humiliation of one’s own faults is to face them in their true hideousness, without ceasing to hope in God, while hoping nothing from self.

If we can avoid becoming overwhelmed with the discouragement of old age and its changes to us and in us, perhaps we can exercise that sagacity referred to above.  There a number of resources in the wisdom of aging category, including the late Reb Zalman Schachter-Shalomi’s book From Age-ing to Sage-ing which led to the founding of the Sage-ing International organization, which hosts workshops, webinars, conferences and other forums for fostering “spiritual eldering.”  Their website states that moving from age-ing to sage-ing involves the following:

  1. Developing a willingness to deal with life completion and overcoming the desire to stay in denial of aging.
  2. Coming to terms with our mortality.
  3. Acquiring the skills for working on the inside by practicing journaling, meditation, imaginal exercises, and spiritual intimacy by creating safe and sacred space in dyads.
  4. Paying attention to our body, feelings, mind, and spirit, being guided by them and maintaining them in the right tone, mood, and attitude.
  5. Giving  a real hearing to the inner voices – allowing all the minorities within the whole person their witness.
  6. Beginning to do life repair:
  • in health
  • in practical matters with wills and testaments
  • in relationships and between generations
  • by reaching into the past and offering release and healing
  • through forgiveness work with release from vindictiveness
  • by finding the pearls in the anxious memories
  • 7. Doing the philosophical homework by raising questions about the purpose and the meaning of our lives.
  • 8. Serving as elders to others as guides, mentors, and agent of healing and reconciliation on behalf of the planet, the nation, and the family by being wisdom keepers.
  • 9. Preparing for a serene death and afterlife, furnishing our solitude with God.
  • 10. Doing this nobly in connectedness with the inner, actualized self,  already realized, individuated, and complete.This is a formidable list, but fortunately there is assistance in the Sage-ing community for these efforts.  There are also other excellent resources which may involve a bit less introspection and life review.Jane Barton (of Cardinal Life LLC), an excellent local speaker with whom I am acquainted, has a program she has entitled “The Journey of Aging.”  Part of her programming covers the denial of death and the aging process and how that unwillingness to engage with our mortality adversely impacts our present abilities to consciously and deliberately plan for our future.

© 2017 Barbara Cashman  www.DenverElderLaw.org

Boulder Senior Law Day is Saturday, September 23, 2017

Venetian Canal

 

The Boulder County Senior Law Day will take place this Saturday at the Plaza Event Center in Longmont, CO.  Here is their website if you are interested in registering for the event or would like more information.  There will be 20 different presentations on topics ranging from how to serve as a fiduciary or health care agent for another person; the basics of Medicaid and what you need to know; what’s “trending” in elder fraud (presented by Jane Walsh, Deputy DA from the 20th judicial district); special needs planning and many other interesting topics.  I have been asked to present on ethical wills and leaving a meaningful legacy.

I have written several blog posts on this topic, but I find something new to write about each time I return to this topic!  Most of us estate planning attorneys need to have a sharp eye for identifying potential minefields in a client’s choice of beneficiaries.  It goes without saying we must be vigilant to find ways of minimizing conflict and potential conflict among fiduciaries (agents under powers of attorney, trustee, and the like) as well as beneficiaries in assisting a client in putting together a comprehensive estate plan for managing disability or incapacity (using durable powers of attorney) and for post-mortem planning (by using a will and other available tools suited to the client’s situation).

The estate planning documents we draft for clients are legal documents and we lawyers tend to draft them in ways that are free from language regarding the testator’s (the legal term for a person who makes a will) thoughts or feelings about particular persons or things, but some important documents can help fill in the gaps or empty spaces.  One of these is an ethical will.

Another related document is what is known as a “side letter” which is focused more closely on fleshing out and providing the context for a testator’s intent concerning the rationale for distribution in a will or other estate planning document.  These “side letters” are not without risk and they will likely not be effective in swaying contentious beneficiary who holds to the belief that they have been cheated out of a larger share of an estate.

What I will be talking about Saturday are the benefits of drafting an ethical will or legacy letter to “bequeath,” if you will, the intangible legacy and values of a person’s life.  This writing can also greatly benefit the writer of the document to provide an opportunity help establish one’s own meaning of existence and to weave together the pieces of one’s life into something one might call purpose.  In today’s always-on age of constant chatter, busy-ness and noise, such an exercise of reflection can be priceless!

© Barbara E. Cashman 2017   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

Are There Alternatives to Guardianship for an Elder with Dementia?

Abacus of Glass Beads

I’m taking a look at the alternatives to unrestricted or plenary guardianship as a result of reading my latest issue of the ABA’s Bifocal magazine, in which the ABA’s House of Delegates adopted Resolution 113, urging states and other legislatures to amend guardianship statutes to consider less restrictive alternative to unrestricted or plenary guardianships of incapacitated adults and to require consideration of putting into place decision making supports that would allow a person the right to supported decision making as an alternative to (or reason for termination of) guardianship of an adult. I found the topic thought-provoking, particularly in light of a recently approved uniform law which contains many references to supported decision making.

In Colorado, an Incapacitated adult is defined our Probate Code at C.R.S. §15-14-102(5) as one

who is unable to effectively receive or evaluate information or both or make or communicate decisions to such an extent that the individual lacks the ability to satisfy essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance.

The definition comes from the Uniform Guardianship and Protective Proceedings Act, or CUGPPA in Colorado.  Below I’ll take a brief look at a continuum of less restrictive alternatives to implement in the making of decisions for persons who may be or become incapacitated (but not necessarily determined to be such by a probate court in protective proceedings).

First, I’ll note that each of these aspects of functional capacity and incapacity implicate a person’s rights to self-determination.  Self-determination is a broad topic. The principle of self-determination is prominently enshrined in Article I of the Charter of the United Nations.  It remains a concern under international law due to the fact that there are peoples who are not necessarily represented by the nation in which they find themselves.  For an adult who suffers from a progressive condition or disease process that results in cognitive impairment, there really isn’t such a stretch here to say that a person with dementia is at risk of being “colonized” or have their rights self-determination effectively erased by a legal determination of incapacity.  Here I’m talking about self-determination in the medical, and personal preferences context (concerning levels of care or autonomy, as well as choice of the setting in which one lives). The UN Convention of the Rights of Persons With Disabilities (CRPD), also speaks about supported decision making and you can read more about it here.

The medical or health care POA

I’m focusing on the medical POA here because Colorado’s protective proceeding for a person’s property is known as a conservatorship.  A conservatorship is often not necessary if a person has made effective POA naming an agent and the relationship is working and not otherwise under threat from an interloper.  But. . .  keep in mind that sometimes a non-agent family member or friend can take advantage of a person more easily if there is no court-imposed protection of the person’s property. Ah, there’s that ugly head of patriarchal protection (in the form of parens patriae, the power of the state to act as guardian for those who are unable to protect or care for themselves) again!

Bottom line is that, when people (sometimes known as “patients”) make their wishes known in advance to family members or others and empower another to decide for them as the person’s agent in a MDPOA , that empowerment alone can often lead to better outcomes.  But the fact remains that many of us choose not to choose to name an agent. So what’s next? In Colorado there are also proxy decision makers, which we might consider as “de facto” decision makers under applicable Colorado law.  So, that brings us to the next item. . .

Supported decision making – an intermediate ground . . .  or no man’s land?

This item is specifically included in the newly minted 2017 version of the Uniform Law Commission’s UGPPA, er UGCPAA (Uniform Guardianship, Conservatorship and Other Protective Arrangements Act) at §101(13) where it is listed as one of the “less restrictive alternatives” to guardianship.   In the proposed UGCOPAA, supported decision making means “assistance from one or more persons of an individual’s choosing” (§102(13)); and is added to the end of the above stated definition of incapacity – to read “unable to effectively receive and evaluate information or make or communicate decisions, even with appropriate supportive services, technological assistance, or supported decision making” (§301(a)(1)(A)); is an appropriate consideration for a court visitor to include in the report (§304(d)(2)); for inclusion in the court’s order appointing a guardian (§310(a)(1)); as one of the rights retained by an otherwise incapacitated adult, to “be involved in health care decision making to the extent reasonably feasible. . .  (§311(a)(3)); and in other examples perhaps appropriate for a later blog post. . . .

What are some standards for supported decision making, which is related to “person centered” planning (now part of the Medicare rules, incidentally)?

This alternative sounds all well and good Barb, but what about those elders with dementia whose cognitive impairments are likely to worsen?  Is it realistic to devise a plan for this supported decision making?  After all, those folks are arguably in a situation different from developmentally disabled adults who may can live independently and working in the community, so long as there are community supports.  But I think this is a less restrictive alternative that is seriously underutilized due to the simple fact that people aren’t used to the idea and it is challenging to identify what it might entail and look like in an alternative to probate court protective proceedings or as part of a court’s order granting a limited or restricted guardianship.

Limited guardianship

This one is pretty self-explanatory.  Only certain identified matters are under the authority of a court-appointed guardian and the rest of the rights are reserved to or preserved in the “ward.”  The tricky part with this is an important detail – scarce judicial resources.  Most courts are not anxious to re-examine how supported decision making or a limited guardianship is working and re-tool it as needed.  Most courts have a difficult enough time simply monitoring those guardians!

Plenary or unrestricted guardianship

This is the norm in this country, regardless of lip service in statutes or case law concerning less restrictive alternatives.  But if we are to truly attempt to accomplish guardianship reform, we (courts, elder law attorneys, service providers and other resources) must work together to fashion a viable alternative to what has become the quick and dirty, default request in a guardianship proceeding involving an elder with dementia who may be in the future or already is “incapacitated.”  Stay tuned for more on this topic in the future.

© 2017 Barbara Cashman  www.DenverElderLaw.org

New Proposed Federal Legislation to Combat Elder Abuse

Italian Ceiling

 

The Elder Abuse Prevention and Prosecution Act (S. 178), passed the U.S. Senate on August 1, 2017.  You can read the text of the bill here.  It was sponsored by a bipartisan group of Senators.  It has moved to the House of Representatives for their review.

This bill has several important provisions which would support more federal involvement in areas of elder abuse and financial exploitation reporting and prosecution.  Some of these include: training federal law enforcement (FBI) in elder abuse detection; coordinating data collection and establishing best practices for data collection and sharing among local, state and federal agencies involved in reporting and prosecuting elder abuse; enhancing the services available under the U.S. Department of Justice’s Office for Victims of Crime so as to specifically include those aged 60 or older; imposing an enhanced penalty for those convicted of the specifically defined telemarketing or email marketing fraud under the federal telemarketing fraud statute; and some efforts directed toward guardianship oversight and abuse prevention.  The only problem with all the great things that this proposed new law could do is that there is no money allocated for its proposed activities.  If the bill makes it through Congress and is passed into law, it will be in a situation similar to the 2010 Elder Justice Act, many substantive parts of which lack funding for its important work.

Notwithstanding the important fiscal detail, it is important legislation in several ways that can help coordinate the woefully inadequate means of reporting elder abuse.  The federal government could help to standardize the definitions of elder abuse for the purpose of getting a clearer picture of its prevalence for reporting purposes.  Every state has its own laws and definitions concerning its elder abuse  detection and reporting  standards and some of these vary wildly, making the standardization of reporting incidents of elder abuse that much more difficult.

The federal government’s involvement here could assist greatly in getting a better idea of just how prevalent are certain types of elder abuse.  At the present time, there are numerous difficulties figuring out these important details and this obviously can interfere with the allocation of resources needed to adequately respond to the worsening problem of elder abuse and exploitation.

The numbers concerning the incidence of elder abuse and exploitation are already sickening to consider and they appear to be rising.  It is of critical importance to have adequate support for prevention and prosecution to combat this.

The bill has been endorsed by the bipartisan Elder Justice Coalition,  the American Bar Association and  the Consumer’s Union, among other groups.

If you think this legislation sounds like a good idea to help elders and their loved ones, then by all means be sure to contact your U.S. Congress member and share your opinion about this important legislation!

Stay tuned for a blog post about another piece of proposed legislation which has been introduced in the U.S. House (H.R. 2505) and Senate (S. 1151) known as the Credit for Caring Act of 2017.

© 2017 Barbara Cashman  www.DenverElderLaw.org