Aphasia – Planning for the Unimaginable

At 67 years of age, Bruce Willis recently disclosed his diagnosis for aphasiaAphasia is a communication disorder, with various manifestations of impairments.  It can affect ones ability to understand language, including affecting speaking and writing, but aphasia does not impair one’s intelligence.  This is an important factor to appreciate.

The main symptoms of aphasia include:

  • Trouble speaking
  • Struggling with finding the right term or word
  • Using strange or wrong words in conversation
  • Trouble understanding what other people say or following conversations
  • Writing sentences that don’t make sense or trouble expressing yourself in writing
  • Speaking in short sentences or phrases
  • Using unrecognizable words

I once had an elderly client with aphasia, and she was discriminated against as generally being entirely mentally unwell, when the truth was her intelligence was still intact, but she struggled to make her words – which had once come to her so easily – match what she had actually intended to say.  Unfortunately, it was a challenge to get some medical care providers, some of her family, and the court to understand that she knew what she wanted, but we all had to sloooooooooow down to make sure she could speak her mind, and that just because she said the wrong words sometimes, it did not mean she was not capable of participating in her own advocacy.

Consider this a gentle reminder that in this fast-paced world, it is often the best strategy to slow down and show kindness, so that true understanding can occur.  Accordingly, putting together your estate plan, advance health care directive, and a power of attorney, before you need it and before there are struggles, is the best plan.

Attorneys Blachly & Pasieczny Present on Combating Financial Elder Abuse

Recent Tools to Combat Financial Elder Abuse”: a closer look at mandatory and permissive conduct for Oregon securities professionals.

Today, over 46 million Americans are 65 years of age or older. This accounts for nearly 15{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} of the population. According to the Population Reference Bureau, that number is projected to more than double by the year 2060. It will reach an estimated 98 million and 24{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} of the U.S. population. Approximately 1 out of every 10 Americans, age 60 and older have experienced some form of elder abuse. Estimates of financial elder abuse and fraud costs range from $2.9 billion to $36.5 billion annually

On Thursday, February 21st, SYK attorneys Victoria Blachly and Darlene Pasieczny will speak to the Oregon State Bar Securities Regulation Section about financial elder abuse in the securities industry. Their program “Recent Tools to Combat Financial Elder Abuse: Mandatory and Permissive Conduct Under FINRA Rules and Oregon Law for Securities Professionals,” will take a closer look at Oregon statues and FINRA rules regarding mandatory and permissive conduct for brokers and investment advisers when there is reasonable suspicion of financial abuse.

Meet the experts – Victoria Blachly and Darlene Pasieczny

Victoria Blachly is a fiduciary litigator, licensed in Oregon and Washington. She represents individual trustees, corporate trustees, beneficiaries, and personal representatives in often difficult and challenging cases including:

  • Trust and estate litigation
  • Will contests
  • Trust disputes
  • Undue influence
  • Capacity cases
  • Claims of fiduciary breach
  • Financial elder abuse cases
  • Petitioning for court instructions
  • Contested guardianship and conservatorship cases.

Darlene Pasieczny is a fiduciary and securities litigator. She represents clients both in Oregon and Washington, with matters regarding trust and estate disputes, financial elder abuse cases, securities litigation, and represents investors nationwide in FINRA arbitration. Her article, New Tools Help Financial Professionals Prevent Elder Abuse, was featured in the January 2019, Oregon State Bar Elder Law Newsletter.

Report abuse

If you suspect someone is being abused, neglected, or financially exploited, please reach out to the Oregon Department of Human Services. Also, you may consider hiring a private attorney to help employ legal tools to prevent harm, or recover financial losses.

Letter to the Editor: BOLD Action for Alzheimer’s

SYK attorney, and commissioner on senior services, Victoria Blachly is an outspoken advocate for the Oregon Alzheimer’s Association, and the people whose lives have been touched by Alzheimer’s.

Today Victoria’s letter to the editor was published, with a call to action for Congress to protect those effected by Alzheimer’s.

“Today, there are more than 5 million Americans living with Alzheimer’s and more than 15 million serving as unpaid caregivers. Too often Alzheimer’s is treated as an aging issue, ignoring the public health consequences of a disease that someone in the United States develops every 66 seconds… Alzheimer’s is the most expensive disease in America at an estimated cost of $259 billion annually. And with Medicare and Medicaid covering two-thirds of its annual costs, Alzheimer’s demands more attention from our government.”

Victoria raises her voice for those suffering from Alzheimer’s. She is asking Congress to pass the Building Our Largest Dementia (BOLD) Infrastructure for Alzheimer’s Act. And she is asking for Sens. Ron Wyden and Jeff Merkley and Rep. Greg Walden to fight for the millions of Americans affected by Alzheimer’s.

To learn more about BOLD and about the effect Alzheimer’s has on millions of Americans, visit www.alz.org.

Victoria Blachly is a partner at SYK, and an experienced fiduciary litigator that works with many elderly clients, cases or causes, she is also a proud Board Member for the Oregon Alzheimer’s Association Chapter.


Recent Legislation: Oregon Uniform Adult Guardianships

From time to time, we will publish blurbs on recent local court opinions and state legislation:

Senate Bill 238

Oregon Senate Bill 238 enacts the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. It is broken into five different articles that provide a uniform procedure for people to follow when a guardianship or conservatorship case may involve multiple states.

ARTICLE ONE:  The first article sets out basic definitions as well as several provisions that permit Oregon courts to work with courts in other jurisdictions in conservatorship and guardianship matters (hereinafter collectively referred to as “protective proceedings”). It gives courts permission to speak with courts of another state regarding protective proceedings. It also gives Oregon courts the ability to cooperate with protective proceedings being held in other states by holding evidentiary hearings, ordering an evaluation of a respondent, releasing medical records, and multiple other functions that could be achieved by a local court more easily than a foreign court. Last, it provides that testimony for a protective proceeding may be taken in another state and that an Oregon court must cooperate in setting a location for the testimony.

ARTICLE TWO:  Article two addresses how courts should determine the proper jurisdiction for a protective proceeding. Jurisdiction can be granted in a protective proceeding for a laundry list of reasons, but the main purpose of this article is to create a system where only one protective proceeding is ongoing and to set out basic rules for courts to use to decide which court should proceed and which court should dismiss. This article also creates the ability for an Oregon court to exercise “special jurisdiction” in an emergency, when property is in the state of Oregon, or to appoint a guardian or conservator for an incapacitated or protected person when a party is transferring a petition from another state. Last, this article allows a court to decline jurisdiction because there is a more appropriate forum for the protective proceeding.

ARTICLE THREE:  The third article sets out procedures for transferring a protective proceeding to a court in a different state. On the court’s own motion or by a party’s petition, the court may make a provisional order transferring the case. The article lists multiple factors the court should consider when making such a determination. The order is provisional because it is dependent upon the other state accepting jurisdiction over the protective proceeding. The second part of article three sets out the procedure for Oregon courts to use to determine if it should take jurisdiction over a case being transferred to it by another state.

ARTICLE FOUR:  The registration and recognition of protective orders from other states is set out in article four. A registered order allows all powers of the registered order to be recognized in the state of Oregon, except any authority that may be prohibited under Oregon law. 

ARTICLE FIVE:  Article five makes several minor amendments to ORS 125.015, 125.025, and 125.215. These three sections deal with jurisdiction, and article five makes them subject to the new jurisdictional provisions set out in articles one through four. 

Taken as a whole, Senate Bill 238 is an extremely comprehensive and expansive jurisdictional statute to which special attention should be paid when bringing a protective proceeding.

Recent Legislation: Springing Power of Attorney

From time to time, we will publish blurbs on recent local court opinions and state legislation:

Senate Bill 237

Senate Bill 237 amends ORS 127 and legally sanctions the use of a “springing” power of attorney. This means that a person may execute a power of attorney that indicates by a specific date or occurrence, the power of attorney will become effective. If a person does not indicate a “trigger” event (usually financial or physical incapacity), the power of attorney becomes effective upon execution and remains effective until revoked. 

The bill attempts to place multiple safeguards against abuse of the springing power of attorney. First, the statute allows a person or "principal” to designate in their power of attorney who shall make the determination that the trigger event has occurred. This person does not have to be the same person that will be the agent under the power of attorney. If such a person is designated, the bill provides that this person will be considered the personal representative of the principal for purposes of ORS 192.518 et seq., which deals with state health care information, and 45 C.R.F. 160 & 164, which deal with federal health care information.

Second, if the trigger event is the financial incapability of the principal, but a person is not designated in the power of attorney to make this determination, any physician can make the determination in writing. Once this determination is made, all acts by the agent under the power of attorney on behalf of the financially incapable principal will bind the principal as if he had taken the action himself while financially capable. 

The final substantive amendment to ORS 127 by Senate bill 237 is a clause meant to provide protection for an agent that acts in good faith, but without proper authority. Section three of the bill states that a power of attorney terminates upon a designated event or the death of the principal. But, the power of attorney is still effective, if the agent acts in good faith on behalf of the principal without the knowledge that the terminating event has already occurred. Absent fraud, an affidavit by the agent that states such facts is conclusive proof that the action is binding upon the principal and his heirs, even though the power of attorney was technically no longer in effect. 

Last, this bill applies to all powers of attorney, regardless of whether they were executed prior to the effective date of the bill (January 1, 2010).