December 4 is Colorado Gives Day – Will You Give?

I like the idea of a day focused on giving to charities, especially in the midst of a holiday time of rampant spending on gifts!  Colorado Gives Day is Tuesday, December 4, 2012 – in case you haven’t already been notified by nonprofits you support . . .  I like the website for Colorado Gives Day, you can enter a zip code and find local nonprofits to support.  Plus, there is no administration cost – 100% of your gift goes to the nonprofit, thanks to the underwriting of its sponsors.

Some of the nonprofits focused on aging issues that are listed on the Colorado Gives Day website include:

Innovage Foundation (formerly the Total Community Options Foundation) are the folks whose programs include the Johnson Adult Day Program, InnovAge Greater Colorado PACE (formerly known as Total Longterm Care), InnovAge Homecare (formerly known as Seniors Inc.), and InnovAge Greater New Mexico PACE (formerly known as Total Community Care);

The Senior Assistance Center is a northwest Denver nonprofit that provides emergency financial services, a food bank, friendly visitors, and ArtReach, just to name a few of their programs;  and

The Guardianship Alliance of Colorado, a relatively new organization that provides information  and guidance about guardianship of adults in Colorado.  Their education programs include classes for people to learn more about becoming a volunteer guardian, along with a training class about serving as a guardian for an incapacitated adult.

I know some of the people who work for these nonprofits, and they are individuals dedicated to improving the lives of seniors.  These nonprofits are filling gaps in our community.  As the number of seniors continues to rise, the ranks of those living on fixed incomes expands, and the social challenges of integrating seniors into the community – or keeping seniors engaged in communities remains.  These nonprofits are helping seniors and their loved ones in the Denver metro are face those formidable challenges.  Please consider supporting these nonprofits, or another nonprofit of your choice this Colorado Gives Day!

 

 

©Barbara Cashman     www.DenverElderLaw.org

 

End of Life Decisions – “When the Rubber Hits the Road”

 

Yesterday morning, before my usual third Thursday meetings with other probate lawyers at the Colorado Bar Association, I attended a very informative discussion put on by Norv Brasch at Bryan Cave HRO entitled  “Estate Your Intentions: A Special Forum on End of Life Issues.”  It was an at-capacity crowd of hospice workers, health professionals, chaplains, other interested people and yes – a few lawyers. . .  Without going into much detail about the litigation that set the stage for the  initial case study discussion – let’s just say it’s themed along the same lines as Trygve Bauge’s frozen grandfather, the subject of Nederland’s “Frozen Dead Guy Days” festival and there was no shortage of morbid humor (mostly in the form of puns).

The broader and challenging issues are about the constellation of decision making and the alignment of actions by a diverse group of people to make end of life wishes “stick.”  When I talk to people about end of life issues, it is typically in the context of an estate plan, but it may also be in a more particular context of crisis planning.  Most people have heard of a “living will,” its technical term is “advance directive,” but it seems fewer people are familiar with the MDPOA – the medical durable (or health care) power of attorney.  The two documents are very different.  The advance directive has had much more press, having been the subject of several U.S. Supreme Court cases, the latest being the case of Terri Schiavo.

I have previously blogged about  the documents important for the terminally ill and everyone else.  The most important distinction to remember is that the MDPOA names a PERSON to make decisions for you if you are unable, while an advance directive is a document that comes into play in very limited circumstances and is a STATEMENT of wishes.  This is not to minimize the importance of having an advance directive, but rather to highlight the need for all of us who are able to

(1) name a health care agent of your choosing and

(2) have a conversation with that person about what you want them to do.

No one wants to accept a job, particularly one that may involve life-or-death decision making – without receiving some instructions first!  What does the failure to plan or name a health care agent result in? We don’t know until it happens, but it is typically decision by a hastily convened committee, often of people with diverse and conflicting interests.  It is not a happy time for anyone involved, and the failure to have the conversation and to make any plans only serve to complicate matters.

The panelists spoke about the challenges of having the difficult conversations about health care and the end of life.  Of course, none of us knows what the end of our life looks like, the where or when or how.  This difficult conversation that so many of us are reluctant to have often gets played out within the hospital setting when a frail elderly loved one breaks a hip or contracts pneumonia.  These seemingly run of the mill injuries and illnesses for the younger folks are still the primary causes of death in the elderly, so this serves to bring front and center mortality for the majority of us: advanced age.  All of our medical technology cannot save us from the inevitable – but what does the inevitable look like?  When do we accept that someone is dying?  Just because we don’t have hard and fast answers to those questions doesn’t mean we shouldn’t talk about them.  One of the panelists commented that “the last place you should be talking about end of life decisions is in your lawyer’s office. . . ” I heartily disagree.  I think having the conversation in your lawyer’s office is a perfect place and time to start the conversation – it is often while it is a more “theoretical” proposition and therefore less threatening. It is different when your lawyer talks to you about disability and death as distinguished from when you visit your doctor.  I have spoken to people about hospice and made the suggestion to consider it more carefully with persons in fragile health.  Is this something most estate and elder lawyers do? I doubt it! Is it part of what is the process of planning (with legal documents) for the inevitable? Absolutely!

The upshot from this great program is that people – everyone – need to talk to each other, to have the difficult conversations!  It is not just about getting the legal documents, medical documents and statements of your desires (which most people do not have). I can say that from my perspective as an attorney and as a mediator, it is about getting people involved with your decision making and making your wishes known so that there will be much less opportunity for guilt, conflict and recrimination among loved ones and family members.

Thanksgiving is an excellent time to remember to consider and say Dr. Byock’s four things

please forgive me

I forgive you

thank you

I love you

and maybe even have the conversation about final wishes.  It’s a holiday about gratitude after all, what more is there to be grateful for than our life?

©Barbara Cashman     www.DenverElderLaw.org

Should Anyone “Practice” Grieving?

 

 

 

 

Well, what kind of a question is that?  I was thinking about a friend who I knew was “grieving” the outcome of the election.  Then I saw GriefLink’s post today about grief and the election results.  You can read it here.   So why do we tend to associate the grieving process exclusively with death?  I don’t know, but part of the challenge with grieving, recognizing it, making space for it and honoring the process as we individually experience it and as others experience it – is to sufficiently recognize what it is.  I have written about Kuebler-Ross’s five stages of grief before, but here’s a review:

1. Denial.  We may dig in our heels and simply refuse to accept that things have changed.

2. Anger.  We might rant and rave at people, institutions, God, or life in general for delivering us a package that we didn’t want.

3. Bargaining.  We make try to “cut a deal” with life, the universe, the “powers that be,” in the hope of getting what we really want.

4. Depression.  We might get the idea that nothing really matters, that everything is futile, when we deeply feel our helplessness.

5. Acceptance.  We might arrive at this stage only after each of the above stages has been fully experienced, when we are finally ready or able to see.

The five stages of grief apply not only to death of a loved one, but to death of a pet, but changes in relationships like marriage, a job or career, a change in health status or well-being, or some cause or effort that was held dear that did not come to fruition.   We practice this death and dying things every day, whether or not we are aware of it.  The quote from the Greek philosopher Heraclitus comes to mind: “You can never step into the same river twice, for new waters are always flowing on to you.”  And why would I mention just one quote from Heraclitus when I could also say “there is nothing permanent except change.”  We practice grieving every day, and sometimes it helps to recognize that for ourselves, but more importantly – to see it in others, when they are grieving.  Sometimes simply witnessing can be enough for another person to help get through this often difficult process that follows the heart’s timeline and not a chronology that an intellect can measure or otherwise quantify.

So what is important about being with someone who is grieving?  Presence.  Presence is a form of compassion.  Another suggestion – this one from Henry James (I’m a huge fan of his brother William James) who wrote “three things in human life are important:

The first is to be kind,

the second is to be kind, and

the third is to be kind.

So in the meantime, I think it’s a good idea to follow the advice of Kahlil Gibran: “be like the flower – turn your face to the sun.”  If you’re not sure which direction the sun is, let your smile find it.  Smiling a little bit more will lengthen your days and make you a happier person.  Yep, there’s a Ted video to prove it!  Watch Ron Gutman’s presentation here.

I’m grateful for the little things, which reminds me of another awesome Ted video!  Neil Pasricha will jump start your thinking about change and gratitude!  Nope, nothing “legal” in this post, except that I help people work through many of these changes, which often involve grief – every work day.

©Barbara Cashman     www.DenverElderLaw.org

 

Durable Powers of Attorney: Law in a State of Uncertainty

 

Reba's Gaudi Mosaic

 

I love this picture of Gaudi mosaics.

It was taken by a friend on a recent trip to Spain.  Why the mosaic theme?  Because the field of  elder law, and the drafting and use powers of attorney in particular, are emblematic on our individual reliance on one another, especially during times of anticipated or unanticipated vulnerability.  By the time we reach mature adulthood or “elderhood,”  our lives typically appear to be mosaics of experience, identity and relationships.  Our interconnectedness and reliance upon others is certainly indicative of a mosaic pattern.  So – you’re wondering, okay Barb, what does THAT have to do with durable powers of attorney?

Durable powers of attorney have come a long way over the last thirty years or so.  This is a good thing because we have an ever-growing number of baby boomers swelling the ranks of “older Americans.”  Most boomers aren’t yet ready to use the term “elder law” as a field of law applicable to them!  Durable powers of attorney (POA for short) is one of my favorite topics to talk and write about because there are so many different directions for a discussion.  I’ll focus on the general financial POA for this post.  In Colorado, we don’t technically need to refer to POAs as “durable” anymore because under the Uniform Power of Attorney Act that became effective January 1, 2010, all powers of attorney are durable unless stated otherwise.  I’d like to start with some questions:

  • What is the purpose of a POA – is it just a preventive tool to keep people out of protective proceedings in probate court?
  • How does drafting a POA both protect and make more vulnerable a principal who is naming an agent to act for her?
  • When does the principal agent relationship become “official” and how do we manage problems/difficulties/challenges to a POA’s use?

I could go on with lots more questions, but suffice it to say they would by and large have a single answer:  “it depends . . .”  How typical for a lawyer to respond in this way!    The bottom line for POAs and what makes them so “interesting” (read: challenging)  from an elder law attorney’s point of view is that our legal system does not tolerate ambivalence very well.  Our system is grounded on the values of predictability, consistency and logic.  In many important ways, the legal and practical implications and applications of a POA are inherently unpedictable.  Why is that?  Because life itself is uncertain and unpredictable and a POA is in this respect a “life management” tool.  Incapacity for older people may or may not be considered in the same category as mental illness in terms of how the legal system treats individuals, but for probate court purposes, there are few major differences.   So are you saying that old age is like a mental illness Barb?!  Not exactly.

As a drafter of POAs as preventive and useful documents, I have to say that the document is inherently fraught with difficulties – some of which include questions like:

  • does the document actually confer power on an agent? (Note that in Colorado there is not a requirement that a person being considered for a conservatorship be “incapacitated” as is required for a guardianship.)
  • how will the holder of the power – the agent – behave? (will they be kind, conscientious and respectful or wield absolute power in a self-serving way?)
  • what will happen to the principal when the agent begins acting on her behalf?
  • who will be watching to ensure that the power is not abused or used for improper purposes?
  • and how will abuse be detected?

A POA document is a powerful tool that can be used for either proper or improper purposes, by someone employing it for its intended purpose as a precision tool in the event of emergency, or as a blunt instrument to gain control over another’s finances and life.  Attorneys who draft powers of attorney owe it to their clients to explain the document and how it can be used and potentially abused.  It’s true that it is relatively easy to get a POA document “off the internet,” but will you know if it is valid for its intended purposes according to the the law of the state in which you reside?  What about how to use it?  Don’t forget that the most powerful tool to prevent abuse of a POA – whether it be a result of inadvertence, incompetence or bad intent – is education.  This is where the elder law attorney comes in. . . .