January 19, 2017

Colorado Court of Appeals: Denial of Attorney Fees Not Error in Close Case with No Vexatious, Groundless Claims

The Colorado Court of Appeals issued its opinion in In re Estate of Fritzler on Thursday, January 12, 2017.

Wills—Business Records Exception—Jury Instruction—Presumption of Undue Influence—Attorney Fees—Costs.

Fritzler and his wife executed numerous wills during the last 10 years of their lives. The last will was drafted just a few years before they each passed away. In all of the wills, the Fritzlers sought to distribute their farm in a generally equitable manner among their five children, but the last will increased son Glen’s portion over son Steven’s portion. Steven contested the will, contending that Glen unduly influenced Fritzler. After a lengthy trial, a jury concluded that the will was valid. Following the verdict, the estate and the personal representative (PR) sought attorney fees and costs. The court denied the award of fees, finding that the case was “close” and Steven did not lack substantial justification. The court partially denied costs, concluding that it lacked equitable authority to grant fees without concurrent statutory authority.

On appeal, Steven contended that the trial court abused its discretion by excluding Fritzler’s hospital medical records because they were admissible under the business records exception. Although the exclusion was an abuse of discretion, any error was harmless because the records were cumulative of other admitted evidence.

Steven also contended that the trial court erred by refusing to instruct the jury on the presumption of undue influence. However, the PR offered sufficient evidence to rebut this presumption. Thus it would have been improper for the court to instruct the jury thereon.

The PR contended that the trial court erred by denying her request for attorney fees under C.R.S. § 13-17-102 and by denying her certain costs as the prevailing party under C.R.C.P. 54(d). The trial court noted that this was a close case and found that even though Steven did not prevail, his claims were not groundless, frivolous, or vexatious. Therefore, the court did not err by denying the request for fees. As to the costs, the trial court awarded most of the requested costs to the PR after a hearing, denying only some that it found to be unreasonable. Therefore, the court did not err in its award of costs.

The judgment and orders were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Top Five Programs and Homestudies of 2016: Elder Law

The year is drawing to a close, which means that the compliance period is ending for a third of Colorado’s attorneys. Still missing some credits? Don’t worry, CBA-CLE has got you covered.

Today on Legal Connection we are featuring the Top Five Elder Law Programs and Homestudies. CBA-CLE offers many great programs of importance to elder law practitioners, and also has some great books. Find out more here – cle.cobar.org/Practice-Area/Elder.

5. Elder Law Basics – Shifting Our Perspectives to Our Elders
Aging isn’t just a biological process — it’s also a legal, financial and cultural one. Different cultures have different attitudes and practices around aging and death, and these cultural perspectives can have a huge effect on our experience of getting older. While many cultures celebrate the aging process and venerate their elders, in western cultures, where youth is idolized and preserved at all costs, the elderly are commonly removed from the community and relegated to hospitals and nursing homes.  Physical signs of human aging tend to be regarded with distaste, and aging is often depicted in a negative light in popular culture, if it is depicted at all. Has the western fear of aging kept our elders from living full lives? Is it time to change our perspective? We as a profession and society may have to shift our perspective and our attention as the American population ages. The Elder Law Basics Seminar is not only for you if you are new to elder law, it is  for you if you practice law at all, because there is not a practice area that elder law does not touch. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits, including 1 ethics credit.

4. When the Diagnosis is Alzheimer’s: Issues and Solutions for Counselors and Caregivers
This innovative program will speak to attorneys who are dealing with aging and disabled clients as well as attorneys who are caregivers for persons with dementia in their own families. Providing an in-depth look at the issues and solutions presented by Alzheimer’s disease, the program will start with an overview of dementia from Karen Moravek, Community Education Coordinator with the Colorado Chapter of the Alzheimer’s Association. The program will then shift into the legal issues facing your clients and families. The program concludes with a panel discussion and opportunity for questions about Alzheimer’s Resources, Social Security Disability, Geriatric Care Management and Long-Term Care Insurance. This dynamic and informative program promises to answer your questions about Alzheimer’s disease, whether you are a counselor or a caregiver! Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 3 general credits, including 1 ethics credit.

3. Elder Law Basics: Counseling Our Seniors
Thanks to the baby boomer generation, the number of senior citizens is growing rapidly. As the boomer population reaches age 65, the senior population is projected to reach 83.7 million – almost double the estimated number in 2012, and approximately twenty percent of the total US population. Roughly 10,000 people will turn 65 every day for the next 20 years! This increasing elderly population has and will necessitate more senior legal representation. With a rapidly growing senior population, there is no better time to be a part of this practice area. And CBA-CLE is your essential source for advancing your knowledge, cultivating relationships and sharpening the skills necessary to work with and on behalf of our elders. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits, including 1 ethics credit.

2. Guardianships and Conservatorships: Addressing the Tough Issues
The role of guardian and conservator often involves leading and having difficult conversations. At this CLE Seminar, you will learn from some of the most experienced and knowledgeable practitioners in this field about how best to counsel your clients and their families when these conversations have to take place. Whether the ward must be involuntarily placed after a mental health proceeding, when a criminal matter may arise, or even when the controversial issue of involuntary sterilization or abortion becomes an issue, your trusted faculty will guide you through every step of the way. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits, including 1 ethics credit.

1. 8th Annual Elder Law Retreat
This annual event combines a weekend in the mountains with learning about elder law from some of the state’s top practitioners. Topics covered at the 8th Annual Elder Law Retreat in Vail included Creating a Tax-wise Portfolio for a 3rd Party Special Needs Trust, Post-Adjudication Right to Counsel in Protective Proceedings, Medicaid: Planning With and Valuation of Unique Assets, Undoing What Was Wrongfully Done for Real Estate and Financial Transactions, Mental Health Issues in Guardianships and Conservatorships, and more. Order the CD homestudy here and the MP3 here. Available for 18 general credits, including 3 ethics credits.

Top Ten Programs and Homestudies of 2016: Trust and Estate Law

The year is drawing to a close, which means that the compliance period is ending for a third of Colorado’s attorneys. Still missing some credits? Don’t worry, CBA-CLE has got you covered.

The Top Ten Programs and Homestudies for Trust and Estate practitioners are featured today on Legal Connection. There are many, many other great Trust and Estate programs, and CBA-CLE also offers a wide array of great books for Trust and Estate practitioners. Visit cle.cobar.org/Practice-Area/Trust-and-Estate to peruse our selection of books and programs. And now, without further ado, here are the Top Ten Programs and Homestudies for Trust and Estate Lawyers.

10. Advanced Estate Administration: Complexities Explained
When are third party payors liable for distributions made to fiduciaries? How do you file a portability tax return? Will your malpractice insurance cover you if there is a tort claim for breach of fiduciary duty? Get answers to these complex questions and more from this Advanced Estate Administration homestudy! Also get tips on locating and collecting digital assets in our digital world. Also included: uncertainty regarding the legal test for capacity in Colorado, and ethics on conflicts of interest issues that arise in estate administration. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits, including 1 ethics credit.

9. Decanting, Digital Assets Act, and the Determination of Heirship Act — Trust & Estate Fall Update 2016
The name of the game for the program is NEW, NEW NEW! Attend to find out everything you need to know about the new decanting rules, the new determination of heirship statute, Colorado’s new Fiduciary Access to Digital Assets Act, and IRS Form 8971 and the new basis consistency rules. There will also be a discussion about the recent ATF regulation changes in the transference of firearms. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits.

8. Counseling Trustees on their Duties
This program defines “fiduciary,” including trustees, personal representatives, agents under powers of attorney, and others; explains the basic statutes, principles, and requirements of fiduciary administration; explains who can and cannot serve as a fiduciary; and provides an in-depth discussion of a trustee’s duties. Order the Video OnDemand here and the MP3 here. Available for 4 general credits.

7. Understanding Benefits — Trust & Estate Fall Update 2015
The Trust and Estate Fall Update is your guide for understanding benefits in its many forms for the estate planning practitioner.  Get the latest information on the available resources for long term placement in nursing homes, as well as the ethics of privity in estate planning. Whether it’s Medicaid, Medicare, Social Security or the Veteran’s Administration, this CLE has it all. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits, including 1 ethics credit.

6. 30 Cases Every Trust & Estate Lawyer Should Know
What are the cases you thought of when you read the title of this program? Spencer Crona dives into the cases that every trust and estate lawyer should know. He explains the holdings, and gives you analysis and key insights. Armed with this case list, you’ll never have to phone mother to say you won’t be a lawyer after all. Order the Video OnDemand here and the MP3 here. Available for 2 general credits.

5. Funding the Revocable Living Trust
The revocable living trust has been an important estate planning tool for those seeking to avoid probate and protect their privacy. The effectiveness of this strategy depends largely on proper funding of assets, without which the primary purpose of utilizing a revocable living trust rather than the traditional will, is defeated. Each type of asset owned by the client will have different challenges in preparing for transfer to the trust. Mr. Schmidt  reviews the issues encountered for the most commonly encountered types of transfers. You’ll also receive a PDF copy of the CBA-CLE book, Funding the Revocable Living Trust, authored by L. William Schmidt, Jr. Order the Video OnDemand here and the MP3 here. Available for 1 general credit.

4. No Contest Clauses — Current Perspectives on Estate Planning and Litigation
With the rise in post-mortem estate planning and the increasing ability to modify estate planning documents after death, clients are becoming more and more unsure of the finality of their estate planning. As a result, practitioners are experiencing an increase in the use and enforcement of in terrorem or “no contest clauses.” Similar to most states, Colorado law has long provided for the enforceability of no contest clauses subject to a probable cause exception. Taking into account the public policy considerations, risk analyses, and increasingly litigious nature of estate and trust beneficiaries, estate planning attorneys and probate litigators alike can benefit from learning more about no contest clauses and how they play out under Colorado law. Order the Video OnDemand here and the MP3 here. Available for 1 general credit.

3. Understanding and Using Trusts — A Nine Program Series
This series consists of nine programs, each dedicated to a key area of trust law. The expert members of the faculty will explain the purposes, mechanisms and key clauses included in a wide variety of trusts typical for a Colorado trust and estate practice. They will explain the client needs that each trust addresses and how each type of trust meets those needs. The faculty will also point out common errors that practitioners sometimes make when working with these trusts. Other important issues that concern trusts, such as taxation, ethics, liability, and malpractice will also be covered. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Entire series available for 36 general credits.

2. Wade/Parks: Colorado Law of Wills, Trusts, and Fiduciary Administration
Through this course and his comprehensive treatise, Mr. Wade provides a thorough commentary on the law of wills, trusts, and fiduciary administration, focusing on leading Colorado cases, the probate code, and related fiduciary statutes. Each homestudy order receives a copy of the CBA-CLE book Wade/Parks: Colorado Law of Wills, Trusts, and Fiduciary Administration, 7th Edition, as part of the course materials for this program. Please note the book will be provided in PDF. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 4 general credits, including 1 ethics credit.

1. 36th Annual Estate Planning Retreat
This annual three-day conference is a can’t-miss event for trust and estate practitioners. A wide range of topics are discussed each year. Last summer’s event covered such topics as “Advising Clients on the Mandatory Reporting of Abuse,” “Just Say No! Don’t Leave Your Client with Outdated Discretionary Distribution Language,” “Insurance Coverage Issues in Estate, Trust, and Fiduciary Litigation,” and much more. Although the event is live-only, planning is well underway for the 2017 program. Save the date! The 37th Annual Estate Planning Retreat will take place from June 8-10, 2017, at the Vail Marriott Resort & Spa. Look for registration information at EstatePlanningRetreat.org.

Colorado Court of Appeals: District Court Lacked Authority to Award Fees for Unjustified Claim in Foreign Court

The Colorado Court of Appeals issued its opinion in Bruce v. Roberts on Thursday, December 15, 2016.

Trust—Frivolous Lawsuit—Attorney Fees—Foreign Court—Work Product.

James Roberts assisted his mother Della Roberts with forming the Della I. Roberts Trust in Colorado, where she lived. Upon Della’s death eight days later, James, the designated trustee, was supposed to divide the trust’s assets into two equal shares—one to benefit James and his wife, Mary Sue Roberts, and the second to benefit Della’s grandchildren, James and Mary Sue’s children. James did not properly administer the trust, but apparently, no one expressed concern about his administration until after he died.

After James’s death, Mary Sue assumed the role of trustee pursuant to the trust’s provisions. The grandchildren, who were ultimately appointed as trustees (trustees) objected and promptly removed Mary Sue as trustee. Although the Colorado court assumed jurisdiction, Mary Sue filed a separate case in West Virginia, where she lived, which was later dismissed for lack of jurisdiction. Bruce represented Mary Sue in both the Colorado and West Virginia matters. The district court in Colorado accepted a final accounting of the trust filed by trustees, ordered all assets remaining in the trust be distributed to the grandchildren in equal shares, and found that the trust could recover administrative costs and attorney fees incurred in litigating both the Colorado and West Virginia cases, pursuant to CRS § 13-17-102, from Bruce and Mary Sue. It also assessed $54,565 in fees against Bruce for the West Virginia action.

Bruce appealed the district court’s order only as it pertains to attorney fees awarded for the West Virginia action. He contended that CRS § 13-17-102 did not authorize the court to award attorney fees incurred solely in the West Virginia case. CRS §13-17-102 does not authorize a Colorado court to award attorney fees incurred in an action in a foreign court, unless work product created for use in the foreign court is also used in the Colorado court. Neither the district court’s order nor the record clarifies whether the trustees used work product created for the West Virginia action in the Colorado proceedings.

The portion of the order awarding $54,565 for attorney fees incurred in the West Virginia action was vacated, and the case was remanded for the district court to determine whether the trustees used work product created for the West Virginia action in the Colorado proceedings.

Summary provided courtesy of The Colorado Lawyer.

Privileges and Confidentiality in the Attorney-Client Relationship

EthicsConfidentiality is one of the cornerstones of the attorney-client relationship. It allows clients to feel comfortable discussing sensitive issues with their attorney without fear of disclosure. Colorado Rule of Professional Conduct 1.6 provides, “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted [in certain enumerated circumstances].” The counterpoint to this is the privilege that protects attorney-client communications. The attorney-client privilege in Colorado is governed by C.R.S. § 13-90-107(1)(b), which states, “An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment.”

These seemingly straight-forward rules have many nuances, including the scope of confidentiality versus the attorney-client privilege, the lawyer’s responsibility to reveal information to prevent a client’s misconduct, the lawyer as witness, the lawyer’s duty to prevent the disclosure of client information, and the extension of the attorney-client privilege to others in the attorney’s office.

The Colorado Bar Association Ethics Committee has tackled some of these issues in Formal Opinion 108, “Inadvertent Disclosure of Privileged or Confidential Documents,” and Formal Opinion 90, “Preservation of Client Confidences in View of Modern Communications.” As this guidance suggests, attorneys must always be aware of when issues of privileges and confidentiality may arise in their practices.

At 8:30 am on Wednesday, December 14, 2016, attorney John Palmeri will discuss the intricacies of privileges and confidentiality in one-hour CLE program co-sponsored by the CBA Lawyers Professional Liability Committee. Attendees will also receive a copy of Mr. Palmeri’s chapter inLawyers’ Professional Liability in Colorado with further discussion of the topic. Register here or by clicking the links below.

 

CLELogo

CLE Program: Privileges and Confidentiality

This CLE presentation will occur on December 14, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 8:30 to 9:30 a.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Colorado Gives: Metro Volunteer Lawyers Provides Representation to Low-income Coloradans

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 6, 2016. These charities, and many, many others, greatly appreciate your donations of time and money.

MVL-50-Year-Logo (png) SmallerMetro Volunteer Lawyers (MVL) is a program of the Denver Bar Association and is co-sponsored by the Adams/Broomfield, Arapahoe, Douglas/Elbert, and First Judicial District Bar Associations. MVL is committed to bridging the gap of access to justice by providing pro bono legal services to people who could not otherwise afford legal assistance.

MVL offers pro bono opportunities to attorneys, especially in the areas of estate planning, guardianships and conservatorships, family law, and consumer law. By volunteering with MVL, attorneys can receive valuable experience while assisting Colorado’s most vulnerable populations with their legal needs. Under C.R.C.P. 260.8, Colorado attorneys providing uncompensated pro bono legal representation may apply for 1 general CLE credit for every 5 billable-equivalent hours of representation, up to a maximum of 9 credits in each 3 year compliance period.

Give your expertise, as well as supporting MVL with a cash donation. Click here to donate and/or submit an online application to volunteer.

Colorado Gives: Volunteers Needed for Sturm College of Law’s Tribal Wills Project

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 6, 2016. These charities, and many, many others, greatly appreciate your donations of time and money.

Each year, students from the Sturm College of Law at the University of Denver participate in the Tribal Wills Project (TWP). In January, March and May, TWP participants travel to a tribal reservation in Colorado, Utah, New Mexico, Arizona or Montana for a week to draft wills, medical powers of attorney, living wills, and burial instructions for tribal members on a pro bono basis. This work is extremely important for the following reasons.

Under the American Indian Probate Reform Act (AIPRA), if a tribal member dies without a will and his or her interests in trust land total less than specified amount, such interests automatically pass to the tribal member’s oldest living descendant to the exclusion of his or her remaining descendants. If the tribal member is not survived by any descendants, such interests pass back to the tribe. This is often in contravention of the tribal member’s intent. In some instances, tribal members are unaware of these default provisions under AIPRA; in other instances, tribal members may be aware of the default provision but are without the means or resources to have a will prepared to avoid the foregoing results. TWP gives tribal members a voice so that desired family members are not excluded from inheriting interests in trust land.

Additionally, TWP provides a unique opportunity for law students to gain hands-on experience with real clients. Initially, a student is paired with a client to conduct an interview. Thereafter, the student prepares initial drafts of the desired documents, which are then reviewed by a Colorado supervising attorney. The student and attorney work through the revision process together, which provides an essential learning opportunity for the student. Once the documents appear to be in order, the documents are further reviewed by an attorney who is licensed in the particular state where the reservation is location. Once the documents receive final approval, the student participates in the execution process.

TWP was initially developed in February 2013 by John Roach, who is a Fiduciary Trust Officer for the Southern Ute Agency of the Office of the Special Trustee for American Indians; former Colorado Supreme Court Justice Gregory J. Hobbs, Jr.; and University of Denver Professor Lucy Marsh, among others. The first trip occurred in March 2013 when the students and supervising attorneys travelled to the Southern Ute and Ute Mountain Ute Reservations in southern Colorado. Since then, TWP has grown exponentially. Each year, students apply for limited positions on the TWP team; many must be turned away based on the limited availability of funds and supervising attorneys.

In January 2017, twenty students and four supervising attorneys will travel to two reservations outside of Phoenix, Arizona. Similar groups will travel to New Mexico in March and Montana in May. It costs approximately $15,000 to fund each trip, which is funded primarily by donations.

TWP is actively seeking volunteer supervising attorneys to assist with future trips. If you are unable to serve as a supervising attorney for any reason, you can still help by making a tax-deductible donation to TWP.

For more information, please contact Lucy Marsh at (303) 871-6285 or lmarsh@law.du.edu.

Colorado Court of Appeals: Attorney Fee Award Appropriate Where Claims Lacked Substantial Justification

The Colorado Court of Appeals issued its opinion in In re Estate of Shimizu on Thursday, November 3, 2016.

Decedent—Deed–Undue Influence—Lack of Capacity—Attorney Fees—Groundless—Vexatious—C.R.S. § 13-17-102.

Decedent died intestate and was survived by his half-sister, Szoke. Szoke challenged the validity of a deed that decedent had executed near the end of his life. In that deed, decedent purported to convey his house to three of his close friends (the recipients). The probate court rejected Szoke’s claims, finding the recipients’ case far more persuasive because it was based on evidence from persons who had direct contact with decedent near or at the time the deed was executed, and not all of whom were interested in the outcome of the case. The court also determined that the recipients were entitled to an award of attorney fees under C.R.S. § 13-17-102 because Szoke’s claims “lacked substantial justification” and were “groundless, in that she presented valid theories of undue influence and lack of capacity, but offered little or nothing to support those claims.” The probate court awarded the recipients attorney fees.

On appeal, Szoke contended that the probate court erroneously awarded attorney fees to the recipients under C.R.S. § 13-17-102. The probate court found that Szoke’s claims were “groundless” because she did not present much evidence to support her claims, and the court did not believe her evidence in light of the recipients’ evidence. Based on the evidence presented by Szoke, a reasonable fact finder could have found undue influence and lack of capacity. Because Szoke presented some credible evidence in support of her claims, her claims were not sanctionable as groundless under C.R.S. § 13-17-102. On the other hand, although the trial court did not explicitly characterize Szoke’s action as “vexatious,” that was the gist of its findings and conclusions. Because the court’s findings are supported by the record, the court did not abuse its discretion in awarding fees for conduct that was “stubbornly litigious, or disrespectful of the truth,” and, thus, “substantially vexatious.”

The award of attorney fees was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Probate Court Lacked Authority to Order “Chemical Castration”

The Colorado Court of Appeals issued its opinion in People in Interest of C.J.R. on Thursday, September 8, 2016.

Probate Court Authority—Chemical Castration—Medina Factors.

C.J.R. is a long-term patient at a state hospital, where he is treated for a form of psychosis. He has also engaged in “sexually inappropriate behavior” for some time. C.J.R. was treated for years with antipsychotic drugs. After a change in his drug therapy, his sexually inappropriate behavior worsened. As a result, a psychiatrist prescribed Depo-Provera by injection every 90 days. The use of Depo-Provera for this purpose is commonly called chemical castration. C.J.R. refused to take the drug voluntarily, and the People sought authorization from the Denver Probate Court to administer it involuntarily. The probate court authorized the involuntary administration of Depo-Provera and use of a nasogastric tube to administer other drugs. C.J.R. appealed.

In People v. Medina, the Colorado Supreme Court formulated a four-factor test that the People must satisfy before a court may order a patient to be forcibly medicated. Medina dealt with antipsychotic drugs. The court of appeals held that it does not apply to a request to involuntarily administer the synthetic equivalent of progesterone as part of the treatment for a mentally ill male patient at a state hospital for the express purpose of controlling his sexually inappropriate behavior.

In addition, the court found that even if the Medina test were applicable here, the People did not prove by clear and convincing evidence that the requirements of Medina were established because (1) there was not record support that there were no less intrusive alternative treatments available, and (2) C.J.R.’s need for treatment with medication was not sufficiently compelling to override “any bona fide and legitimate interest of the patient in refusing treatment.”

The part of the probate court’s order authorizing involuntary administration of Depo-Provera was reversed. That part of the order authorizing the use of a nasogastric tube to administer other medications was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Social Media Abuse of Elders

Editor’s Note: This post originally appeared on Barbara Cashman’s Denver Elder Law Blog on August 10, 2016. Reprinted with permission.

CashmanBy Barbara Cashman, Esq.

I recently came across this horrifying article published Monday in ProPublica, entitled “Federal Health Officials Seek to Stop Social Media Abuse of Nursing Home Residents.” It seems that some staff members of nursing homes are publishing photos, audio and video recordings of some residents in the social media like Snapchat, Facebook or Instagram, or sent in text messages as multimedia attachments. These pictures, audio, and video files often depict elder residents of the facilities in demeaning and humiliating ways so as to result in mental abuse. The Centers for Medicare and Medicaid Services has recently sent out a memorandum concerning this to the State Survey Directors.

Do the skilled nursing facilities have prohibitions against such intrusions in place? Some evidently did not, but there can be little doubt that nearly all will have such protections in place soon in light of these disturbing developments. Here’s an article about such violations in Ohio nursing facilities.

The CMS memo referred to above defines mental abuse as that abuse which:

[M]ay occur through either verbal or nonverbal conduct which causes or has the potential to cause the resident to experience humiliation, intimidation, fear, shame, agitation or degradation.  Examples of verbal or nonverbal conduct that can cause mental abuse include but are not limited to: nursing home staff taking photographs or recordings or residents that are demeaning or humiliating using any type of equipment (e.g., cameras, smart phone, and other electronic devices) and keeping or distributing them through multimedia messages or on social media networks.  Depending on what was photographed or recorded, physical and/or sexual abuse may also be identified.

ProPublica has been following this following these developments for many months; this article from December 21, 2015 details some of the incidents this mental and physical abuse of incapacitated elders perpetrate by the nursing home staff members. In a case in New York where a nurse aide took photos of an incontinent resident’s genitals covered in fecal matter and shared them with another staff member on Snapchat, he was fired and pleaded guilty to a misdemeanor count of willful violation of health laws. What I found particularly disturbing was the comment of one home’s administrator to ProPublica that “[t]echnology is a problem for us, for everybody, these days… The resident involved was not harmed but certainly it was a serious incident.” Are incapacitated nursing home residents not entitled to any human dignity and to be free from such exploitation for someone’s entertainment?

One of the incidents described by ProPublica is from August 2015. It occurred in a rural area of Colorado and involved a youth volunteer at a nursing home who took a selfie which showed a 108-year-old resident urinating. The volunteer apparently shared the photo with her friends at school and the facility did not learn of the offending photo until months later. The volunteer was not monitored by the facility but did report to the local police, and was later charged with invasion of privacy.

What is human dignity when it cannot be defended by an incapacitated elder? What is human dignity when it is not readily apparent or recognized in places where people are institutionalized for the paramount concern of their safety?

Dignity, as in the legal right, is not easily defined. In fact, you would be hard pressed to find many references to it in our laws. International law, specifically the international law of human rights, has much more to say about human dignity, but that is another blog post!

I will close with just a couple observations and questions.

If humiliation is the opposite of being treated dignity and respect, is our system of laws really equipped to deal with this type of new frontier of the rights of incapacitated persons to be free from intrusions by others who humiliate them for sport or humor?

Is the dignity of or respect for elders a right in this context or is it overshadowed by our concerns for safety, and how does an incapacitated elder’s diminishing bailiwick of autonomy factor into this equation?

On this note, here is a link to an interesting article about the dignity of elders. More to come on this very challenging topic.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

Barbara Cashman is a solo practitioner in Denver, focusing on elder law, estate law, and mediation. She is active in the Trust & Estate and Elder Law sections of the CBA and is a past chair of the Solo/Small Firm section. She is a CAMP mentor and blogs weekly on her law firm blog, where this post originally appeared. She can be contacted at barb@DenverElderLaw.org.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Denver Senior Law Day is This Friday, July 29, 2016

2016 cover sample_Layout 1The Denver Senior Law Day will be held this Friday, July 29, 2016, at the PPA Event Center in Denver. The event will run from 8 am to noon. Join some of Denver’s top elder law attorneys to learn about legal issues affecting older adults. Topics to be presented include fraud prevention, Medicare issues, estate planning basics, probate procedures, and more. The Ask-A-Lawyer table will return for this year’s event, and each attendee will receive a copy of the 2016 Senior Law Handbook.

Registration is now open online — click here to register. Questions? Call (303) 757-4342 or email SLD@denverprobatelaw.com.

For more information, visit www.denverseniorlawday.com.

Let’s Raise Awareness About Elder Abuse!

Editor’s Note: This post originally appeared on Barbara Cashman’s Denver Elder Law blog on June 29, 2016. Reprinted with permission.

CashmanI wanted to circle back on the importance of raising awareness of elder abuse. You can read the Presidential Proclamation on June 15, 2016, for World Elder Abuse Awareness Day right here and if you’re curious about the language of the Elder Justice Act, passed as part of the Affordable Care Act (as Title VI subtitle H, §§ 6701, et seq.), read this link.

In Colorado, as in nearly all other states, adult protection units are responsible for the reporting and investigation of elder abuse (along with law enforcement agencies). The Elder Justice Act is federal legislation that requires the U.S. Department of Health and Human Services “to oversee the development and management of federal resources for protecting out seniors from elder abuse.” Additionally, the U.S. Department of Justice is charged with taking action to prevent elder abuse.

The effective coordination of these county, state, and federal efforts is of course a work in progress. What we do know about raising awareness of elder abuse and exploitation is that it will lead to more reporting of such abuse. Here is a link to a recent article in the Sacramento Bee which links the raised awareness of such abuse to a dramatic increase in reports to local law enforcement. This is important to bear in mind as the baby boomers begin to become a greater proportion of the cohort affected by elder abuse and exploitation. In my practice, I have unfortunately become familiar with national and international internet scams which relieve elders of their hard-earned retirement money. This is a particular area in which the federal government might play a unique role as so much of our law of the internet is based in federal law.

Another tragic side effect of the victimization of elders, besides the shame, victimization and impoverishment which results from financial exploitation is that these elders, along with elder victims of all types of elder abuse — including physical and sexual abuse — are likely to die much sooner than their peers who were not victimized. But many pieces of this puzzle remain unidentified due to the lack of long term studies which collect valuable statistics about elder abuse of various types! This is of course another aspect of the importance of raising awareness. Because so much of elder abuse still remains unreported, this is a major quality of life challenge not just for elders and their loved ones and community, but also for those of us of “a certain age” who might be looking forward to a safe and meaningful elderhood. How can we make things better for elders at risk now and in the future?

What is elder abuse and who are its primary victims of such elder abuse? By the numbers, they are largely women and the “old” of the elder population — meaning folks over 80. Sadly, the vast majority of the abusers are family members of the elder or trusted friends or advisors. Because most elders live in the community — not in institutions — this is a particular challenge for all of us who are community members to become familiar with the signs so that we can report concerns about safety, suspicious behaviors and the like to local law enforcement.

First — what are the kinds of elder abuse that we’re talking about? Here is a helpful listing from the U.S. government’s Administration on Aging website, which also has many helpful resources:

  • Physical Abuse—inflicting physical pain or injury on a senior, e.g., slapping, bruising, or restraining by physical or chemical means.
  • Sexual Abuse—non-consensual sexual contact of any kind.
  • Neglect—the failure by those responsible to provide food, shelter, health care, or protection for a vulnerable elder.
  • Exploitation—the illegal taking, misuse, or concealment of funds, property, or assets of a senior for someone else’s benefit.
  • Emotional Abuse—inflicting mental pain, anguish, or distress on an elder person through verbal or nonverbal acts, e.g., humiliating, intimidating, or threatening.
  • Abandonment—desertion of a vulnerable elder by anyone who has assumed the responsibility for care or custody of that person.
  • Self-neglect—characterized as the failure of a person to perform essential, self-care tasks and that such failure threatens his or her own health or safety.

And what about the warning signs of elder abuse of which we can be more aware?

  • Bruises, pressure marks, broken bones, abrasions, and burns may be an indication of physical abuse, neglect, or mistreatment.
  • Unexplained withdrawal from normal activities, a sudden change in alertness, and unusual depression may be indicators of emotional abuse.
  • Bruises around the breasts or genital area can occur from sexual abuse.
  • Sudden changes in financial situations may be the result of exploitation.
  • Bedsores, unattended medical needs, poor hygiene, and unusual weight loss are indicators of possible neglect.
  • Behavior such as belittling, threats, and other uses of power and control by spouses are indicators of verbal or emotional abuse.
  • Strained or tense relationships, frequent arguments between the caregiver and elderly person are also signs.
  • Changes in the elder’s personality or behavior, especially if the elder becomes withdrawn or despondent, questions to her or him can be very important in identifying a situation which may be the cause of the elder’s silent suffering.

Lastly, here is another helpful self-help resource specifically for Colorado residents – from Colorado Legal Services.  That’s all for now – but don’t forget . . . . Denver’s Senior law Day is coming up on Friday July 29, 2016 and will be held at the Denver Police Protective Association’s Event Center.  More details later.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

Barbara Cashman is a solo practitioner in Denver, focusing on elder law, estate law, and mediation. She is active in the Trust & Estate and Elder Law sections of the CBA and is a past chair of the Solo/Small Firm section. She is a CAMP mentor and blogs weekly on her law firm blog, where this post originally appeared. She can be contacted at barb@DenverElderLaw.org.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.