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With The Growth of Elder Law Comes Statutes And Rules of Interest For All Practitioners

By Marco Chayet 1

With our population living longer due to advancements in medical care and technology coupled with the baby boomer generation getting older, we are in the middle of the “Silver Tsunami” of aging in America. As a direct result, Elder Law as a practice discipline has grown exponentially over the past 10 years. And the need for skilled practitioners in the area has grown even more dramatically.

An Elder Law attorney’s practice generally encompasses all aspects of planning, counseling, educating, and advocating for the senior or disabled client. Rather than being confined by technical legal distinctions, an Elder Law attorney’s role is defined by the client to be served. In other words, when an attorney practices Elder Law, we handle a wide range of issues, but have a specific type of client – seniors, incapacitated adults, or people with disabilities and their families, friends, or trusted advisors. The legal problems facing an Elder Law attorney’s clients are often a unique function of a disease, incapacity, disability, or the aging process. The problems can be complex and include, but are not limited to, estate planning, estate litigation, incapacity issues, public benefits, and long-term care questions.

To put the need for the continued growth of this practice area into perspective, a report by the Alzheimer’s Association entitled “2012 Alzheimer’s Disease Facts and Figures” gave us astonishing statistics. Currently, one in eight people (13%) has Alzheimer’s and other dementias. Nearly half of people age 85 and older have Alzheimer’s disease and other dementias. These conditions are now the fifth-leading cause of death for persons age 65 and older. Strikingly, Colorado is third in the nation, only slightly behind Utah and Alaska, with the highest projected percentage change in residents over age 65 who will have Alzheimer’s and other dementias between the years of 2000 and 2035. By 2035, it is projected there will be an incredible 124% increase in the number of Colorado residents suffering from Alzheimer’s and other dementias. Fortunately, a robust group of elder law and probate practitioners have responded to these changes in our community by creatively drafting, amending, and supporting statutes and rules to better suit the clientele we serve.

The most significant, recent legislative response to our changing population is the new law that requires the mandatory reporting of abuse and exploitation of at-risk elders age 70 and older codified at C.R.S. § 18-6.5-108, which becomes effective on July 1, 2014. Mandatory reporters are required to report elder abuse and exploitation to law enforcement within 24 hours. Failure to report can result in a Class 3 misdemeanor. Except for the perpetrator, anyone who makes a good-faith report is immune from liability for damages in any civil action or criminal prosecution. Mandatory reports are required when the reporter (1) has observed the abuse or exploitation of an adult 70 years or older or (2) has reasonable cause to believe that an adult 70 years or older has been abused or exploited or is at imminent risk of abuse or exploitation. The list of mandatory reporters is quite extensive and includes: physicians; surgeons; physicians’ assistants; osteopaths; physicians in training; podiatrists; dentists; chiropractors; registered nurses; licensed practical nurses; nurse practitioners; hospital and long-term care facility personnel engaged in the admission, care, or treatment of patients; emergency medical service providers; occupational and physical therapists; pharmacists; medical examiners and coroners; psychologists and other mental health professionals; social work practitioners; clergy members; law enforcement officials and personnel; fire protection personnel; court appointed guardians and conservators; personnel of banks, savings and loan associations, credit unions, and other lending or financial institutions; community-centered board staff; a caretaker, staff member, or employee of or volunteer or consultant for a licensed or certified care facility, agency, home, or governing board, including but not limited to home health providers; and a caretaker, staff member, employee, or a volunteer or consultant for, a home care placement agency, as defined in Section 25-27.5-102(5), C.R.S.

To further protect elders and others from exploitation, Colorado has amended its financial powers of attorney laws at C.R.S. § 15-14-701 et. seq. A few highlights of the changes include areas where an agent acting for his principal cannot take action unless the power of attorney expressly states that the agent may so act. Examples of such restrictions include making a gift of the principal’s property to anyone, creating or changing survivorship rights, and creating or changing beneficiary designations. There is now comprehensive statutory guidance regarding third-party reliance on the POA. Further, the statute defines those people who are entitled to file an original petition to the court to review the conduct of the agent including anyone that “demonstrates sufficient interest in the principal’s welfare” at C.R.S. § 15-14-716(h).

Oversight of the fiduciaries “in charge of” incapacitated adults is vital to the protection of our most vulnerable clients. A fiduciary includes an agent, administrator, custodian, guardian, conservator, trustee, and personal representative. The Fiduciary Oversight, Removal, Sanctions and Contempt Act at C.R.S. § 15-10-501 et. seq. allows for a streamlined and defined manner in which a court can maintain the degree of supervision necessary to ensure the timely and proper administration of estates by fiduciaries over whom the court has obtained jurisdiction in both emergency and non-emergency situations. Remedies can include court ordered investigation of the actions of the fiduciary, temporary restraint on powers, suspension, removal as well as surcharge, sanctions and contempt proceedings if necessary.

Another hot topic facing the clientele of an Elder Law attorney includes the payment from an estate for the reasonable compensation (fees) and costs stemming from the work performed by attorneys, professionals, fiduciaries, and others. This component of law was completely redone by the implementation of the Compensation and Cost Recovery Act C.R.S. § 15-10-601 et. seq. This Act repealed all prior statutes regarding the manner in which fees can be paid out of a person’s estate. It delineates between those people who are entitled to be paid from an estate and those who must demonstrate that the services rendered bestowed benefit upon the estate from which they are seeking compensation. Most importantly, regardless of whether someone is entitled to fees or they must meet the benefit bestowed standard, ALL fees and costs must be reasonable. This Act very specifically defines the many factors that must be considered in determining the reasonableness of compensation and costs to be paid by an estate and it is stated that the court “shall consider all of the factors” listed in C.R.S. § 15-10-603. This statute should be carefully reviewed by all practitioners to better understand the standard that is now in place for the judiciary to review the reasonableness of professional fees and costs.

It is no surprise that there has been a proportional increase in the amount of elder law litigation, mediation, and arbitration under our probate code. A few varied tips to keep in mind: These elder law matters mostly fall under our probate code. Probate courts generally have jurisdiction over decedent estates; incapacitated and disabled adults and their estates, trusts, mental health issues (under jurisdiction of a probate court but with its own mental health code); and also issues involving minors as minors “lack capacity” for many decisions by virtue of age or special needs. There are unique, and ever changing, Rules of Probate Procedure to be aware of including a new rule covering discovery in probate cases (C.R.P.P. 40) and an upcoming new rule regarding the court approval of settlement of claims of persons under disability (old rule C.R.P.P 16 is to be replaced by new proposed rule C.R.P.P. 62).

Elder law litigation runs the gamut of life issues facing our clients and their loved ones including the disposition of last remains. While not a pleasant topic, there is litigation that ensues regarding the rights to decide the disposition of a body or last remains. Colorado has a comprehensive, yet not wellknown, statute governing the rights to disposition of last remains. The Disposition of Last Remains Act can be found at C.R.S. § 15-19-101-109. Under this statute, individuals have the right to make a written statement regarding their personal choices on disposition. This document is as binding as a Will when it comes to post mortem wishes. Unfortunately, many individuals do not make final arrangements of any sort. Therefore, the statute fills this gap by enumerating the list of priority for decision-m making on disposition of remains.

Finally, from an ethical and professional perspective, the practice of Elder Law is not for the faint of heart. On a daily basis you are dealing with family crisis, death, dying, and disability. Often you are tasked with making very serious ethical determinations for your client who may have some degree of diminished capacity. To get a flavor of the specific requirements (and potential liability) of attorneys in dealing with clients with diminished capacity, we must be intimately familiar with the amended Colorado Rule of Professional Conduct 1.14, Client with Diminished Capacity, as well as the cases of In Re Sorensen, 166 P.3d 254 (Colo. App. 2007) and Estate of Milstein v. Ayers, 955 P.2d 78 (Colo. App 1998).

1 Marco Chayet is a partner in the law firm Chayet & Danzo, LLC, and the Public Administrator for the 18th Judicial District. His practice emphasizes elder law, guardianships, conservatorships, public benefits, probate, estate planning, and fiduciary representation, litigation and services. He can be reached at or by e-mail at [email protected].