littleton probate lawyer Archives - The Law Office of Barbara E. Cashman

Planning for Aging

Date May 18, 2017

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Florentine graffiti… what me worry?

How does one assess the value of planning for one’s retirement, potential incapacity and/or eventual demise? That is a very personal assessment, notwithstanding that the failure to plan has enormous financial consequences – for the individual, their loved ones and society as a whole. Perhaps a prime and popular example is the failure to make advance heath directives – including appointing an agent under a health care power of attorney and signing a statement of end of life wishes – a/k/a a living will or in Colorado the Declaration as to Medical Treatment. Read here for more useful information from the Colorado Advance Directives Consortium. Many of us, perhaps most, would rather not entertain the idea that our lives will eventually change. Our lives change every day, but whether we mark those changes is up to us!

“In the beginning is relation”

This famous quote by philosopher and theologian Martin Buber is a favorite of mine. In my line of work relation and relationships are keys to planning and realistically assessing how far one can plan as well as the extent to which we must rely on others to assist us in the execution of our planning.

Aging and planning can give us the space to reflect on our values, what has been and remains important to us, and planning can also take much of the burden off our loved ones in the event we face a health crisis during we might be unable to make decisions.

I recently came across Sharona Hoffman’s 2015 book “Aging With a Plan,” and found it very insightful. Hoffman is a law professor and, like many of us who practice in elder law, has life experience with an aging and frail parent. She uses that experience, along with a systematic big picture discussion of a realistic conversation to consider all the alternatives in making plans for one’s aged self.

Many of us assume that, if we have lived in our home independently for 30+, we would never have an intention of leaving that space of storied independence and autonomy. I note here that many elders (I’m including a number of clients and others) are coming to understand that there are good and workable alternative options for housing and community involvement that can nourish and sustain one’s basic human need to be part of a community and to contribute to that community.

I liked Hoffman’s approach to her book because it is founded on the importance of maintaining relationships, through social interaction and being useful (at whatever level). The latter, being useful and having something or someone to take care of, is a fundamental premise in the “green house” nursing home alternative. You can read about that in an article here from the Atlantic Monthly, or more about Dr. Bill Thomas in a 2016 Washington Post article. But I don’t want to get off track in talking about “green houses” . . . .

So what are the components of a plan for aging? We are all familiar with retirement planning (even if the majority of us barely engage in such planning) and its focus on finances. I think part of the repulsion in retirement planning is the focus on finances, many people simply find the savings part a difficult conversation and so stop before considering other aspects of retirement planning or aging with a plan. I consider neither of these often heard comments a plan: “X will never happen to me because my family doesn’t live that long;” or “if I can’t go to the bathroom or feed myself on my own, then just shoot me.” We still don’t understand the role of genetics and epigenetics on the aging process very well and not deciding this very grown-up matter of “what happens if” means that we are shirking the responsibility be forcing someone else to choose for us…..

I recommend Hoffman’s book – it’s easy to read and its focus on several practical concerns including: finances; elders driving; person-centered (not disease-based) health care; and the importance of an exit strategy; demonstrate that the book is very useful – for an elder or elder-in training, or for an elder’s family member to assist with the awkward place of overcoming years of inertia.

What If We Declared a War on Elder Abuse?

Date April 26, 2017

Posted by Barb Cashman

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Diana in Venice

What will it take to raise the public’s awareness of the prevalence of elder abuse? Here is a recent New York Times article about a woman from Washington state, a granddaughter of a victim of elder financial exploitation, who has made her mission in life to secure further legal protection for vulnerable elders. I tip my hat to the Elder Law Profs blog for the mention of this article. For this post, I’m focusing primarily on financial fraud and exploitation of elders.

Colorado statistics over the last several years (since the change in law concerning mandatory reporting of elder abuse and investigation by law enforcement) indicate the numbers continue to rise dramatically. Read this Denver Post article from last fall with some of the breathtaking numbers in Colorado. The national numbers are a bit more complicated, due in part to the variances of state laws concerning elder abuse – not all states have made it a crime to financially exploit an elder, as well as how such crimes get reported. In Colorado, law enforcement and county adult protective services are part of the investigative framework for suspected elder abuse and some district attorneys’ offices have specialized prosecutors for such crimes. The federal law, the Elder Justice Act – about which I have previously written, could provide an important means for developing a more systematic approach to reporting (among other important things) remains only partly funded.

A 2011 study published by MetLife Mature Market Institute estimates the financial loss by victims of elder financial crimes and exploitation exceeds $2.9 billion dollars annually, but this number remains controversial as other studies have estimated $17 billion or $36 billion. Read about the variety of those numbers here.

How do we define fraud on elders? That is a big part of the problem with a lack of any “standardized” way to identify such fraud and abuse so as to generate reportable numbers for particular types of fraud and abuse. One thing that most are certain of is that the exploitation and fraud are both widely underreported –due to the shame and embarrassment factor, particularly when the perpetrator is a family member, friend or neighbor (occupying a position of trust).

Know the risk factors

Forbes recently ran an article by John Wasik that had a great summary of four of these which consider the elder’s behavior:

Poor Physical Health. Those who are physically compromised are unlikely to be focused on financial matters. They are often vulnerable to swindles.
Cognitive Impairment. When the ability to do basic things like read a banking statement or balance a checkbook declines, that’s when you have to pay attention. Those with declining math skills will not be asking important questions about new investing “opportunities.”
Difficulty in Activities of Daily Living. If a person has trouble feeding themselves, bathing or shopping, that’s a big set of red flags. That also means that they will have trouble managing money.
Social Isolation.Are they all alone? Then they won’t have the support of a network of peers, who could warn about scams.

Recognize the signs

The signs are of course numerous and varied, but keep in mind that there are many ways in which the behavior of the perpetrator of the fraud or exploitation of the elder mimics that of a perpetrator of domestic violence.

Use and abuse of control of the elder’s finances, such as taking, misusing, or using without the elder’s knowledge or permission their money or property;
Forging, forcing, or using deception, coercion or undue influence to get an elder person’s signature on a legal document – this could include signing over title to a home or other asset, or a power of attorney or a will;
Forging or otherwise forcing, or using deception or other inappropriate means to misappropriate funds from a pension or other retirement income, to cash an elder’s checks without permission or authorization;
Abusing joint signature authority on a bank account or misusing ATMs or credit cards;
Exploitation through a fiduciary relationship – such as an agent under a financial power of attorney acting beyond the scope of the agent’s authority, or improperly using the authority provided by a conservatorship, trust, etc.
Misleading an elder by providing true but misleading information that influences the elder person’s use or assignment of assets, persuading an impaired elder person to change a will or insurance policy to alter who benefits from the will or policy;
Promising long-term or lifelong care in exchange for money or property and not following through on the promise, overcharging for or not delivering caregiving services; and
Denying elders access to their money or preventing them from controlling their assets or gaining information about their assets.

Keep in mind that neither of these lists is comprehensive or exhaustive!

Report suspected abuse, exploitation or fraud

If you aren’t sure who to call and the situation doesn’t require a 911 call, use the National Center on Elder Abuse’s resource page to determine who to call.

The only way we will get a better handle on the extent and pervasiveness of elder financial abuse and exploitation is to become more familiar with it so that we know how to ask those whom we seek to protect.

Guardianship of an Elder – Some Important Considerations

Date August 17, 2016

Posted by Barb Cashman

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Delicate Flower

As the number of retirement age baby boomers continues to rise, we continue to grow our unprecedented proportion of old people in our population. What does this mean for our future? Well, lots of different things, but I’m focusing on an often neglected side-effect of our longevity: the likelihood of incapacity.

Capacity itself is a broad topic in the law. In my area of practice – we typically follow the question whether someone has (or had) capacity with the focusing query – capacity to do what? Execute a power of attorney, sign a will, direct one’s medical care? Here’s a link to a document from the American Geriatrics Society about medical capacity that is an excellent Q&A on the topic of capacity in the medical decision-making context.

There are often many ways to enhance someone’s capacity if they are facing cognitive challenges. Some of these enhancements can assist greatly where the deficit in capacity is of a more temporary nature, such as confusion. Confusion can have a wide array of sources including alcohol or substance intoxication; poor heart or lung function (resulting in e.g., hypoxia); malnutrition or dehydration; blood sugar too low or too high; medications not managed effectively or withdrawal of medication; head injury or other bodily trauma; infection. Insomnia; and a number of other diseases and conditions. I mention these to contrast them with a kind of capacity that is typically not temporary and likely to diminish further as the underlying disease progresses or as the condition worsens. The kind of incapacity I am considering is not the temporary or reversible kind.

There are a number of medical conditions or diseases which can affect capacity as well. For example, there are several types of dementia including Alzheimer’s disease, alcoholic dementia, vascular dementia, frontotemporal dementia (Pick’s disease is one example) and Diffuse Lewy Body dementia which can occur with Parkinson’s disease. For our purposes in Colorado, one relevant statutory reference is to C.R.S. 15-14-102(5), which concerns the definitions for protective proceedings:

“Incapacitated person” means an individual other than a minor, 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.

In the context of the medical conditions and diseases which cause dementia, a major goal of a capacity determination is to not just identify the disease, condition or injury which is the cause of the ongoing dementia (and which often progressively worsens over time), but to identify and promote the AIP’s self-determination and other rights to the extent possible. Planning for the future can typically be accomplished even after a diagnosis or dementia such as Alzheimer’s. The Alzheimer’s Association has a helpful brochure here.

While a person with dementia faces a host of challenges to their autonomy and self-management of activities of daily living (ADL), appointment of a guardian for an alleged incapacitated person need not necessarily be a self-fulfilling prophecy in that taking the AIP’s rights away makes them less competent.

Here is a link to the Colorado Judicial Branch’s website which contains helpful information about adult guardianship in Colorado and the probate court process known as “protective proceedings.” The Guardianship Alliance of Colorado also has helpful resources, particularly pertaining to the expectations and duties of a guardian for an adult. Finally, here’s a link to the 2016 Senior Law Handbook, published by the Colorado Bar Association. Chapter 26 is devoted to guardianship of adults.

So what is the overall nature of an adult guardianship proceeding? It is called a protective proceeding because its underlying aim is to protect the well-being of vulnerable adults. This protection comes at a steep price however, the near complete stripping of civil rights of the AIP. The ward will retain the right to vote, however. So what is the task of a petitioner (the person seeking a guardianship) and what is the court’s role? Within the context of protecting a vulnerable individual and based on all the cognitive and other deficits which prevent the person from functioning at an autonomous level, there are many losses sustained. Amidst these losses, however, is the person’s ongoing right to self-determination. Self-determination is an ancient right as far as the law goes, part of the inviolable rights which set apart humankind from other beings in the animal kingdom.

Self-determination is something not often discussed except in the most desperate of circumstances, hence its relevance to this discussion. A basic precept of international human rights law (particularly in the post-colonial era), in our country’s history, it has been relevant to American Indian peoples, the disabled and other marginalized groups in our legal history and is enshrined in many countries’ constitutions.

In the future, I will be taking a further look at how the self-determination of a ward (after judicial determination of incapacity) can be supported by a guardian.

World Elder Abuse Awareness Day – June 15, 2016

Date June 15, 2016

Posted by Barb Cashman

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Samurai Mask

Just eleven days ago, I presented at the 6^th annual Jefferson County Senior Law day. No fewer than three of the sixteen topical presentations concerned preventing or combatting elder financial abuse. It is on everyone’s minds as the scammers and predators continue to devise ways to relieve elders of their retirement savings.

But elder abuse isn’t just of a financial or transactional nature. Today’s post is about the World Elder Abuse Awareness Day (WEAAD). Yes, WEAAD is on Facebook – check out their page here.

Elder abuse can take a number of forms and while some of it often has characteristics common the domestic violence, working with elder victims of abuse has a unique skill set. The National Clearinghouse on Abuse in Later Life has links to webinars and other information available here on raising awareness about elder abuse and promoting dignity across the lifespan.

More information, including helpful fact sheets in several languages, is available here from the U.S Department of Health & Human Services, National Center on Elder Abuse.

According to the United Nations, which established World Elder Abuse Awareness Day in General Assembly Res. 66/127, the global population of people aged 60 years and older will more than double, from 542 million in 1995 to about 1.2 billion in 2025.

Did you know there is proposed federal legislation on this topic? Read more about the Elder Abuse Victims Act of 2016 here. While it has a very slim chance of passage, its third introduction in the house provides the following as its full title, written by its sponsor Peter King (R. N.Y.):

To better protect, serve, and advance the rights of victims of elder abuse and exploitation by establishing a program to encourage States and other qualified entities to create jobs designed to hold offenders accountable, enhance the capacity of the justice system to investigate, pursue, and prosecute elder abuse cases, identify existing resources to leverage to the extent possible, and assure data collection, research, and evaluation to promote the efficacy and efficiency of the activities described in this Act.

Raising awareness about elder abuse is a community effort! Watch this sixteen minute and emotionally powerful video about confronting elder abuse in America on the National Council on Aging’s “Elder Justice Now Campaign” page – it gives a face to victims of elder abuse. I count myself among those who aspire to old age one day, and I believe it is up to us to take measures now to ensure that elders in our community command respect and dignity and are protected from exploitation and abuse from opportunists and predators.

That’s all for now.

Yours, Mine, Ours and Theirs – Health Care Advance Directives

Date April 20, 2016

Posted by Barb Cashman

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Not quite empty nests!

I am continuing my series of posts on the theme of blended families, adult children and stepchildren, and some of the challenges of estate planning within such a modern context of family relationships.

In my first post, I gave an outline of some of the terrain I would be covering here. In the second post, I looked at some of the unique questions posed blended family estate planning, along with the potential for conflict if nothing is done to plan. The last point discussed in the second post concerned differing styles of coping with or managing conflict and the importance of identifying what is important as well as knowing the challenges. A colleague emailed me after seeing the post, commenting “It’s as if you were listening to my recent conversation with my husband of 18 months!”

Okay, let’s get started with the third post already! Here’s a link to some helpful information about stepfamily members and inheritance. I’m including resources here about inheritance expectations of children, stepchildren and so forth because they are part of the equation, they are the “theirs” which I include in my title for the series. In my experience working with blended families, the “theirs” is always part of the picture, whether the expectations of adult children are acknowledged as such or whether they are described and set forth from the parent’s point of view in the estate plan. Hence my inclusion of that term “theirs” – even if the adult kids are not at the table so to speak…. So getting back the content of this post, let’s consider some of the “what happens if” and the “what happens when” scenarios in the blended family or some “de facto”[i] version of it.

Getting back to my original premise about blended families estate planning having no “template” like the historically “traditional” American family did, it is worth considering first – what kind of blended family are you? Do you have: kids from both sides; aging adult parents; older, established adult children; any special needs children to provide for; an inheritance from a deceased parent or other relative which you wish to keep in your line of descendants; are long term health care considerations important; and lots of other questions. Most of us like to go directly to problem solving mode when we face a challenge. What I think is important to consider as a preliminary matter here is holding off on that step until you determine what are the important values which will inform both your individual and your joint decision making. If you get to problem solving too quickly, there will be likely misunderstandings about the purpose and nature of what was decided and, of course, the utility of such decisions. I should also add that, just like the rest of us over the age of 18, we should be having these conversations about who we want to make decisions for us in the event we are unable and expressing our end of life wishes to family members and loved ones.

I’m focusing on one particular issue in today’s post – advance directives for health care. “Advance directives” include two important documents: a health care (medical durable) power of attorney (POA) and a living will. These two documents work together for the most part, but from my perspective, if you only have one of these documents – execute a health care POA because that document names a person to make decisions for you in the even you are unconscious, unable to communicate or otherwise unable to provide informed consent for medical care. Remember, health care POAs are, by their nature, what we call in my line of work a “springing” POA – meaning that the agent named in the document is only empowered to act as agent if the health care provider determines that the patient/principal is unable to give informed consent. An agent cannot give informed consent for a procedure when the principal is otherwise able to provide informed consent. This is informed consent matter is important, I have previously written about it in the context of the Nuremberg War Crimes tribunal.

I don’t usually like to use fear as a motivator to cause people to act, but a failure to execute a health care POA and name an appropriate agent to make decisions for you can have dire consequences in the blended family context. A failure to discuss and plan for either the unlikely or the inevitable can result in conflict between the spouse and their step-children. This is seldom what people want!

With the health care POA, the principal (the maker of the POA) should carefully consider who is the best person for the job – who is the best equipped emotionally to make difficult decisions and who will be able to effectively communicate with all the necessary parties involved. Usually, if adult children know that this conversation is taking place with a parent and step-parent, there is a collective sigh of relief. I suggest continuing the conversation at a family dinner or other event, so everyone is informed of who is named as gent and successor agent, who will be in charge of decision-making and how communication will be conducted. It goes without saying that this should be an ongoing discussion over the course of our lives!

You can imagine that there have been many difficult lawsuits brought where there was no such document in place or plans were not otherwise sufficient. Family peacekeeping often involves thinking ahead to avoid conflict, and this is just what advance directives can provide for a blended family. Here is a link from the CDC with many helpful resources, including the American Bar Association’s Consumer’s Toolkit for Health Care Advance Planning. In future posts, I will be looking at the financial power of attorney and other useful means to manage our longevity and disability.

And in celebration of our glorious sunshine here in Denver (after a lot of snow over the weekend!) how ‘bout a bit of eye candy? Check out Colossal’s post about “The House of Eternal Return,” a previously abandoned bowling alley in Santa Fe which now houses a brilliantly colored immersive art installation. Inside the space is a house, complete with a bathroom with a wavy tile floor. I think the “eternal return” theme goes nicely with the desire of so many of us to remarry. Here is that oft-quoted statement from Oscar Wilde about marriage:

Marriage is the triumph of imagination over intelligence. Second marriage is the triumph of hope over experience.

That’s all for now, will continue next time with more details for the ongoing discussion. . .

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[i] I use the term de facto here to distinguish from de jure blended family. Most of my posts will covered married persons, but I do not wish to exclude couples who make other, nonmarital arrangements which often resemble marriage, but without its conventions and protections. Here’s a good description of the difference between the two legal concepts.

Vulnerable Elders and the Slayer Statute

Date March 3, 2016

Posted by Barb Cashman

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Italian Stone Face

A couple weeks back, I posted an update on the proposed End of Life Options Act, a bill in the Colorado legislature which has since died (presumably of natural causes). There is concern that some version of the bill will make it onto a ballot to become law by other means. For this reason, today’s post will go into a bit more detail about the concerns I raised about the implications of having no reporting requirements for such a law and concerns I have with regard to the safety of some vulnerable elders.

Vulnerable Elders

Colorado’s mandatory elder abuse reporting statute defines an at-risk adult as “any person who is seventy years of age or older or any person who is eighteen years of age or older and is a person with a disability.” Colo. Rev. Stat. §18-6.5.102(2). The only reputable (US Census based) internet fact I ran across about this population was for persons 65 and up, who in July 2014, were estimated to be 12.7% of the population of Colorado.

From a civil rights perspective, aspects of elder abuse prevention statutes can often seem paternalistic. Much of the research that could be done on the subject is problematic because of ethical and methodological problems. Collecting information about elder abuse may publicly expose cognitive, physical, mental and social vulnerabilities and the collection of such information could have negative implications in the form of legal, financial or social consequences for both the elders and caregivers and others who might participate as part of a study. I mention this because the vast majority of elder adults are competent and retain capacity, at least in the eyes of the law. The implication of these observations is that we really don’t have solid numbers about how many perpetrators and victims we are talking about. As an elder law attorney, I can say that it is extremely difficult for an elder parent to call me (or adult protective services) to report abuse or exploitation being perpetrated by an adult child or family member of the elder. Suffice it to say we don’t really know, and may never have a very firm handle on how many elders are affected as victims of exploitation and abuse.

When you couple this with the lack of any reporting requirement for a physician assisted death law, it would not be possible to track the numbers of vulnerable elders who might fall prey to an abuser’s or exploiter’s plan to hasten someone’s demise so that they might inherit something from the elder. Enter the slayer statute. Here’s an article about “disincentivizing” elder abuse. Keep in mind that elder abuse statutes have criminal penalties. There are of course distinguished from civil remedies, which can provide other types of relief.

The Slayer Statute – A Modern Law with Ancient Origins

If you’ve never heard of a slayer statute, you’re not alone! It’s both obscure and ancient. Before there were any state “slayer statutes” there was the common law slayer rule. Its origin hearkens back to the first known remedial law code in human history: the Code of Hammurabi. The Code of the Babylonian king was inscribed on a stone pillar (called a stele) and installed in a public place. It was a combination of legal principles and history. Most of us are familiar with the axiom “an eye for an eye and a tooth for a tooth” as some precept of retributive law in the form of revenge as recompense for personal harm, but it is much more likely the expression has been badly misinterpreted and taken out of context. It is probably much more closely aligned with other commentary in the code which describes the value of certain personal injuries in terms of repayment. In short, it was a code of remedial law – akin to modern day worker’s compensation and tort law.

The principle from Hammurabi’s code is that “a killer cannot profit from his wrong.” The common law rule, nullus commondum capere potest de injuria sua propria (no one can take advantage of his wrongdoing) forms the basis of the historical slayer rules and subsequent statutes, preventing slayers from inheriting from their victims.

Probably the most well-known case (from law school) to articulate a slayer rule is Riggs v. Palmer, 22 N.E. 188 (N.Y. 1889). In that case a grandfather had executed a will leaving small portions of his property to his children and the remainder to his grandson. The grandfather subsequently married and stated that he intended to change his will to include his wife. The unhappy grandson caused his grandfather’s death in an attempt to secure his portion of the estate. The court held that grandson was disqualified from inheriting because of his action and relied on the grounds of moral equity to articulate a slayer rule in American jurisprudence.

Forty-seven states have slayer statutes. Colorado is a Uniform Probate Code state, among many other states which have adopted that version of the slayer statutes. Colorado’s is codified at C.R.S §15-11-803 and contains both a criminal and civil provision for determining that a felonious killing has occurred such that a slayer/felonious killer is prevented from inheriting from the person whom they slew.

This post will be continued next week. . .

Digital Assets – Coming Soon to a State Near You!

Date February 24, 2016

Posted by Barb Cashman

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Cutout Constellation

Colorado may soon be getting some legislation in place concerning digital assets in the probate context! Today’s post will look at the benefits of having a digital assets clause in such estate planning documents as a general durable power of attorney or in a will.

Here’s the link to SB 16-88, which is a bipartisan bill entitled “Concerning the ‘Revised Uniform Fiduciary Access to Digital Assets Act,’” or RUFADAA for short. The RUFADAA has been introduced in 29 different state legislatures so far. I have already written several blog posts on this topic of “digital assets,” and my most recent one on the topic mentioned the revision of the uniform act by the Uniform Law Commissioners (ULC) last July. If you’re looking for a bit of background on digital assets, read this post.

Of course I still don’t know for certain whether the RUFADAA will pass (still working at using my crystal ball successfully . . . ), but it seems like it will. On Monday (2/22/16), it was introduced in the House and assigned to the Judiciary Committee. The controversies which plagued its predecessor, the UFADAA, have largely been eliminated with the ULC’s RUFADAA.

So to begin, here’s a few helpful pointers.

Specify and distinguish between assets and access

It’s not enough to simply generally describe online or digital assets in a POA or other estate planning document because there are important nuances and details which third parties, upon whose approval an agent acting for a principal must depend, which must be address. The difference I’m talking about here is identified in the bill’s distinction set forth in §15-1-1502(9), which states a “designated recipient” means a person chosen by a user using an online too. To administer digital assets of the user,” and §15-1-1502 (10) “digital asset” means an electronic record in which an individual has a right or interest . . . .

Keep in mind that some internet service providers already provide their own online tools by which a user can designate individuals who are authorized to receive the content of a user’s account in the event it is inactive for a period of time determined by the internet service provider (ISP). On Facebook, for example, this is known as a legacy contact.

In this circumstance described above, the fiduciary for a decedent estate (a/k/a the personal representative in Colorado) or an agent under a POA must contend first with the user/principal’s specific direction (if it exists) and to the extent that no designation was made by the user/principal, then the governing instrument (e.g., a POA) would control. Finally, if there is neither a specific direction by a user/principal as to who shall have the power to access nor a POA or other governing instrument, then the standard term of service agreement controls.

Recognize and give priority where applicable to “online tools”

This coordination of designations in an ISP’s online tools with, for example a POA, is an important undertaking for RUFADAA purposes. If the user (be they a principal under a POA or the decedent in an estate administration proceeding) has already designated a person or persons to have access consistent with the ISP’s online tools, this will take precedence over the estate planning documents. See the RUFADAA at §15-1-1504. In this context, it would be a good idea for the user to ensure that the selected agent is not only just the agent for POA purposes but is also a designated recipient as identified above.

Things are continually evolving!

Evolving was chosen over changing because it has a more positive gloss, doesn’t it? The change is ongoing. These will keep estate planning and probate lawyers on our toes to advise client of developments affecting access with the use of online tools and also ensuring that a user’s selected fiduciary (agent, personal representative, etc.) will have access to the assets as intended by the user.

So – a scenario to avoid would be one in which the user designates one person to have access by naming them a designated recipient, but then (perhaps at some later date, unwittingly) names another and different person as (for example) agent under a POA. This kind of a conflict will cause problems and should be avoided. No, this online networked world we live in is not getting any simpler to manage!

Unlearning, Elderhood and the Aging Process

Date December 16, 2015

Posted by Barb Cashman

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Chalk Rosetti in progress

One of the best parts of my job as an elder law attorney is I often discuss the “big” questions with older people – their values factor into both planning and crisis management. So . . . . what is the wisdom of elderhood? Is it the stubbornness of life, or the wisdom of aging, or perhaps a combination? I was reading an interview with Dr. Tom Kirkwood, entitled “Inevitability of Aging?” in Mind, Life and Universe: Conversations with Great Scientist of Our Time, Lynn Margulis and Eduardo Punset, eds., Chelsea Green, 2007. In the chapter’s introduction which precedes Punset’s interview of Kirkwood, Punset observes “the first great myth is the human certainty that we are programmed to die.” Id. At 188. This myth to be “unlearned” is the topic of exploration for the interview of Dr. Kirkwood. What I find fascinating is the use of the term “myth” in the context of what we think we know about aging and lifespan. This is of course a popular and limited definition of “myth” meaning a widely held but false belief or idea.

Let’s take a quick look at human mortality by a couple terms and numbers:

The familiar one – Infant mortality – this is the death of an infant, and child mortality is typically reference to a child under the age of 5. We think of these numbers as not particularly concerning in our country, which seems odd due to the fact that we have the highest rate of infant deaths (6.1 per thousand in 2010) which is more than double the same figure in several other industrialized countries. US life expectancy is also the lowest among wealthy nations, attributed to our shortage of affordable and available health care (disease), obesity, violence and other factors.

Should it then come as a surprise that our longevity in this country might involve more medical intervention and support, to the extent we can afford it and it is otherwise available? What is interesting is that health spending in the US accounted for nearly 17% of the GDP in 2012, far greater than the average spent by other OECD countries.

So enough of the forensic aspects of this longevity back to the quality aspect, of the possibility of unlearning the thinking that there is no biological limit on human life. Dr. Kirkwood challenges three aspects of aging and death as inevitable. Kirkwood looks at longevity from a cellular level, identifying its threats – including oxygen and free radicals and the increased incidence of cancer as our cells often mutate erroneously, unable to repair themselves or clear out the garbage. He concludes that aging is simply a result of damage to our body, and that much of it can be avoided by decreasing our food intake dramatically. Reminds me of the study that came out a few years back about the long term study of rhesus monkeys perhaps, that longevity is to be gained by calorie restriction, but I also remember something about the study observing that the subjects were ill-tempered. . . . !

So the balance again and the question – what is our longevity for? It begs the question if you aren’t already looking at your life in elderhood in some reflective way. I am not talking about reminiscence, plenty of people mistake that longing for the past as something other than what it is – a refusal to let go of what once was (remember “chronolatry”?) And so what if learning from one’s mistakes isn’t what wisdom in elderhood is about at all? What if the wisdom of elderhood is about being receptive to what the future holds for us, being able to hold that uncertainty? This relationship with the future, a letting go of the illusion of control that is based on some past event that was known, might be a threshold for the wisdom of elderhood. Pressing on amidst disappointment, amidst difficulties, is of a different quality than proceed blindly with hope. Hope in the former sense is grounded, based on what is in this life, not some far-flung fantasy. It strikes me that this type of is from waiting and experience, an expectation of something coming from the future, not something continuing from that past.

Shouldn’t elderhood herald a ripening, a wisdom that is concerned with the ultimate questions, in whichever form they present themselves? As we travel along more of our life’s paths, many go beyond the rules of what we have learned, the explanations of politics, natural sciences, economics and other general standardized types of analysis into the uncharged territory of interrogating and forming our life’s meaning, purpose or significance. These are the “being” questions as distinguished from the “doing” questions!

Well, I seem to have led us to another dead-end! I think it is high time for some humor, this video is a song about that elderhood “rite of passage” – the colonoscopy!

The Importance of Solo and Small Firm Attorney Disability and Estate Planning- part 2

Date January 28, 2015

Posted by Barb Cashman

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At the Denver Tea Room

This is part two of the previous post about some of the obstacles as well as rewards of solo and small firm lawyers getting their disability and death plans in place. In the first part I mentioned I was posting this due to my participation in the American Bankruptcy Institute’s Rocky Mountain regional conference. Next month I will be putting on a similar program for the Aurora Bar Association.

Let’s dive in with (a review of) Kipling’s serving men –

I keep six honest serving-men

(They taught me all I knew);

Their names are What and Why and When

And How and Where and Who.

. . .

The Elephant’s Child, by Rudyard Kipling.

We’ll begin where we left off, with the fourth serving man. . . .

Here’s the fourth man, HOW . . .

Well, you can always start with a simple plan, which involves another person (the sixth man is “who”). It’s best to start with a person in mind to help you (known in the appendix as the “assisting attorney”) because it’s often easier to get going with this plan if there are two of you who are holding each others’ feet to the fire, so to speak. If you can’t think of another attorney with whom you can get started, try a request on the BR listserv or ask on the SSF listserv.

Don’t let the fear of confidentiality and conflicts (as in the CRPC variety) stop you in your tracks. Any arrangement to manage or take over the lawyer’s practice must include appropriate protections for client confidentiality. The assisting lawyer taking over must beware of conflicts and must safeguard confidential information. The assisting lawyer should be introduced to or familiar with office staff. Staff or family members of an affected lawyer need to know how to contact the assisting lawyer in the event of disability or death. They need to know where any agreements, powers of attorney, or other planning documents are located. Family members and the PRs should be advised of the arrangements so they know of their existence and any important provisions. Instruction letters could prove invaluable and of course an office procedure manual would be ideal to help locate and decode the affected lawyer’s system.

A more advanced plan and even the super deluxe plan aren’t rocket science as such (unless you have an engineering background). Lloyd Cohen’s ABA book Being Prepared is very useful in this regard AND it’s available from the CBA’s lending library.

Enter Kipling’s fifth, WHERE.

This one is up to you! Meet somewhere with your law partner, a trusted colleague, a family member or office staff at a place and time where you can get started on the difficult conversation that leads to . . . the documents. The documents need to be kept in a safe place where your assisting attorney can have access to the documents in the event they must be used or held by a third person like an escrow holder. At a minimum you will need an easily understood and complete filing system with access by someone who has some familiarity with the system.

And last but not least, there is WHO.

This can be a very challenging detail – on whom can you rely for this type of assistance? Will it be asking too much of the person? These are not easy questions to answer, but many of us deal with these questions regularly in representing our clients. The arrangement you make with the assisting attorney should establish the scope of the assisting attorney’s duty. Will the assisting attorney be the personal attorney for the deceased or incapacitated lawyer? This can be an important distinction. If the assisting attorney personally represents the deceased or incapacitated lawyer, in the event he or she discovered malpractice or ethical violations in any matters, the assisting attorney would not be able to inform the clients and also the assisting attorney could not represent the clients. If it is intended that the assisting attorney take over representation, then he or she would not be the personal counsel for the deceased or incapacitated attorney and must obtain each client’s consent to representation.

The compensation of the assisting attorney should be addressed, as should the matter of staff support to assist the assisting attorney in performing his or her duties and arrangements to pay for these services. If you are looking for more inspiration about the intersection of (1) what to avoid by planning and (2) how a community of lawyers came together to help one of its own, read this 2013 article from the ABA Journal.

Okay, we’re finished with Kipling’s serving men, and I hope they have helped demonstrate how simple this process can be (note: I did not say it was easy). Just in case you need a little extra ethics ammo to get you motivated, take a look at the American Bar Association Standing Committee on Ethics and Professional Responsibility Formal Opinion 92-369, December 7, 1992, Disposition of Deceased Sole Practitioners’ Client Files and Property, which provides:

To fulfill the obligation to protect clients’ files and property, a lawyer should prepare a future plan providing for the maintenance and protection of those client interests in the event of the lawyer’s death. Such a plan should, at a minimum, include the designation of another lawyer who would have the authority to review client files and make determinations as to which files need immediate attention, and who should notify the clients of their lawyer’s death.

Many state bars require such plans of solos (our neighbor Wyoming, for example). Colorado does not – let’s not give OARC a reason to require this of us – plan now! If you are looking for more ideas by way of checklists, LDPOAs, casualty letters, and other documents associated with this planning, and you are a solo attorney and have a question about my forms, get in touch!

Part II of Law and Culture’s Response to Death: Where Do We Put Our Dead?

Date January 7, 2015

Posted by Barb Cashman

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Ketring Lake at Dusk

This is a continuation of my previous post about “where do we put our dead?” but I am in fact beginning at the end (depending on how you look at it of course!) with the aspect of dying and how this factors into our death denying culture.

In chapter 12 of The Hour of Our Death, entitled “Death Denied,” Philip Aries introduces the chapter with “the beginning of the lie” in which he draws upon ample support in literature for this new development and the beginning of the medicalization of death, which of course persists today. Looking at Tolstoy’s Ivan Ilyich written in the 1880’s, Aries notes the similarity of the medical lie that cheats one out of one’s own death with an experience he recorded of a priest dying in 1973. He notes next the progression of the denial into what can be considered many aspects of its present states – the developing and deepening “death taboo” as described by the Englishman Geoffrey Gorer in 1963 (Aries at 575); its emphasis on discreet funerals, a certain indecency of mourning; and as the unwillingness to speak about the inevitable deepens, there enters the triumph of medicalization – the ultimate in estrangement from and incapacity to reckon with one’s own death.

I’m thinking also of another work, this one by B. Hayslip, Jr. and C. Peveto, “Cultural Changes in Attitudes Toward Death, Dying and Bereavement,” (2005: Springer) in which the empowerment and disempowerment choice is presented squarely to the patient in the medical setting. The question examined included three with widely varying responses, which were further broken down along ethnic/cultural affiliations among Americans. Most of the respondents stated they would want to be informed by a doctor that they were dying, while fewer responded that it was as important for others, such as family members, to be informed. The most interesting number was the very small – 4-7% of respondents who related that they had told another person they were dying. Hayslip and Peveto at 7, 114-15. Here there is more than ample evidence to let the medical establishment do the “heavy lifting” as it were, relating to communicating a person’s imminent demise. Age and ethnicity play important roles in how a person, as a member of a community views illness, mortality, old age, dying and disposition of a body and the grieving process attendant to that. Id. At 78-84.

So with the medicalization of death we have other factors, whether they are causal or correlative is a question for social scientists to research. What was once a basic fear, as writers like Ernest Becker put it – the fear of death – has now become complicated with the alienation attributed to the medicalization of the dying process and our estrangement from it as a natural process, as part of life. The fear is complicated now by an unspeakable anxiety which makes the fear into something much bigger and more complex than it is. Of course, the medicalization of death is not a factor in death denial in many more traditional cultures and there are important developments in our country relating to the backlash against all of the medical intervention (but then that is another topic!). Bottom line for my purposes here is that the medicalization of death has contributed to our sense of powerlessness and alienation from our own death and the death of others. You might of course observe that the sense of powerlessness over death has always been with our kind and I would of course agree, but the alienation and its particular form is both a modern and post-modern phenomenon which I find particular troubling and symptomatic of a greater loss.

Finally, I will take a look at the so-called “green alternative” to burial: cremation. Both of my parents wished to be cremated and their cremains are inurned at Ft. Logan. My challenge with cremation is that it seems to be a further extension of the alienation from death. The body is dispatched to the funeral home or mortuary, which may or may not have its own crematory on site and if it doesn’t sends the body out to another facility for such purpose. I am reminded of my late aunt’s comment “just cremate me,” which struck me as being similar to “just take out the trash.” I loved my aunt and found the comment upsetting at the time, even if I didn’t have any qualms with her cremation following her death. I can’t tell you how many clients I have talked to about cremation and the rather unique issues it raises that many folks have not previously considered during the past where burial at a particular location was the unstated choice for nearly all people. What container will hold the ashes? Where will they be kept? Who will keep them? What happens to them when something happens to the custodian of the cremains? While cremation affords many more choices than burial to answer these questions and uniquely express the deceased person’s wishes, more often these questions are never answered and people can get stuck with their ex-wife’s uncles remains. . . . !

I haven’t had the chance to watch this PBS series called Dying in America from 2004, but you can watch it here. Crematory workers are not immune from graverobbing so to speak, a New Jersey funeral director was convicted of selling body parts, while a German crematory employee was allowed to keep the proceeds from some eight years of sifting through cremains for precious metals (to the tune of $800,00.00) because a court ruled that such property belonged to no one.

I guess the biggest issue I have with cremation is the anonymous disposal of the corpse. The corpse is typically dispatched by strangers hired by the family and the operator of the incinerator is the sole witness to the final dissolution of the deceased person’s physical being. Yes, it does hasten the ashes to ashes transition, but I have reservations about how the process is undertaken, as if the body as a container is deserving of very little respect. I just did a search and found that there is a funeral pyre in Crestone, Colorado. This makes the cremation a public event, as practiced by Buddhist and Hindus of today and a different choice for cremation.

So I’ll end this post with something a little more upbeat (perhaps). Fresh off the internet . . . Here are the top ten “classic” (I read that as dinosaur) rock songs about death:

Keep Me in Your Heart by Warren Zevon. I’ve previously posted a link to the youtube of this beautiful number, which Zevon wrote in the face of his own mortality (he had terminal cancer)

Knocking on Heaven’s Door (okay, I switched this fave of mine from another Dylan tune that was listed)

The Last Carnival by Bruce Springsteen (a tribute to two deceased members of the E Street Band)

The Wreck of the Edmund Fitzgerald by Gordon Lightfoot, a beautiful ballad that takes the listener back to a seemingly different time and a relationship which most of us don’t have with tragedy

The Show Must Go On – by Queen. I watched this video of the meaningful song performed by frontman Freddie Mercury as he was growing progressively weaker with AIDS

Dancing with Mr. D – the Rolling Stones (drug overdose isn’t the only means mentioned)

In My Time of Dying – Led Zeppelin

Tears in Heaven by Eric Clapton

42 – by Coldplay . . . okay, it’s not classic rock but it’s a band I really like and the number 42 happens to be, as revealed in The Hitchhiker’s Guide to the Universe, “the answer to life, the universe and everything.”

Don’t Fear the Reaper – Blue Oyster Cult (this was #1 on a list I found but I remember this from high school and all the vampire movies popular at that time, so it got demoted in my listing!)

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