Elderhood, Exile and Pilgrimage – part two

Mount Hope Rochester NY 078

This is a continuation of my post from last week. . . . (and also a celebration of three enjoyable years of blogging on this WordPress website of mine)!

Pilgrimage is also a way of separating oneself, often in the company of other like-minded people, from the everyday and the ordinary, to discover what is there for us to find beyond or underneath our everyday existence and its often commonplace occurrences and numbing familiarity.

The pilgrimage, which I characterize here as beginning with exile, can itself be a journey to wilderness as well as from it, depriving us of all of our devices, props, comforts and habits of doingness.  What we were previously unable to see in our life, through our way of being (often obscured and covered over by all our ego-defenses) can be laid bare and render us  . . . . exposed and vulnerable.  This is how many of us experience a health crisis (young or old) and this is how meaning can creep in.  It seems to require the emptiness of that wilderness of exile, for there is no place for it to be (be experienced) when to rest of our life is already full or otherwise protecting us from the uncertain, the unknown.

Meaning can move through our lives in a qualitative way, even when it may or may not move in a chronological way.  I’m thinking here of the meaning, what Elizabeth MacKinlay refers to as the movement from provisional to final meanings.  The Spiritual Dimension of Ageing (Springer 2001) at 153-65.

So, what then is meaning, which seems to be the outcome in some respects of the movement from exile toward return (or the movement between them) which could be characterized as a ritual of pilgrimage?  Sometimes meaning comes from waiting in the desert, in a darkness of unknowing with an emptiness, a lack of the expected and familiar of the commonplace having been taken from us.

Here is where I return to the place where I started – the quote from Thomas Merton about wilderness, discovering our wildness in our waging of the battle against despair.  I turn now to a faithful companion, Viktor Frankl’s book Man’s Search for Meaning:

There is nothing in this world, I venture to say, that would so effectively help one to survive even the worst of condition, as the knowledge that there is a meaning in one’s life.  There is much wisdom in the words of Nietzsche: “He who has a why to live for can bear almost any how.

Man’s Search for Meaning (Washington Square 1969) at 164.

On the topic of pilgrimage as a decidedly anti-modern undertaking, I think of the mysteries which we often take for granted with the shrug of our shoulders.  Take broken heart syndrome for example, an otherwise unexplained phenomenon in which an otherwise healthy surviving spouse of a long term marriage dies within a year of their life partner.  Sometimes it is too difficult to discover (as suggested by Dr. Frankl) the meaning in our suffering.  What about pilgrimage and its relation to healing?  Retired anthropology professor Michael Winkelman writes this about religious healing:  “The linkages of symbols and physiology provide therapeutic effects in religious healing by aligning individuals with cultural expectations, values and beliefs. “  He notes further that the basic mechanisms of symbolic healing involve the following processes:

  • Establishment of a generalized mythic world;
  • Persuasion of the patient to particularize his or her problems within that mythic world;
  • Attachment of the patient’s emotions to symbols from the mythic world; and
  • Manipulation of those symbols to assist in emotional transactions.

Supernatural as Natural: A Biocultural Approach to Religion, M. Winkelman & J. Baker (Pearson 2010) at 171.

Metaphors have the power to heal and can themselves serve as a vehicle for the pilgrimage, for a return to meaning.  A return to meaning? Yes, I would make the observation as one who is rather fond of springtime pilgrimages to distant places.  Sometimes all we need is not a change of scenery but rather a change of the eyes through which we see our worlds.  I’ll quote next from an observation raised by the English poet William Blake and discussed by (another English poet and commentator) Kathleen Raine:

For Blake experience was not a learning but a forgetting (and Wordsworth too so presents it), a loss of vision, a narrowing of consciousness, or as Blake puts it, a falling into the “deadly sleep” of materialism, to become oblivious to that beauty seen with the eyes of innocence.

 K. Raine, The Underlying Order and Other Essays (B. Keeble, ed.) at 67.

Perhaps the pilgrimage of living and of elderhood, when experienced as a movement from exile to return, is essentially a tapping into the human story, the meaning, which we already know – but have managed to forget or lose sight of along our way, our life’s path.

©Barbara Cashman  2015   www.DenverElderLaw.org

 

Elderhood, Exile and Pilgrimage – part one

Desert Monolith

Desert Monolith

I first wrote “old age” in the title instead of elderhood, but thought better of it.  “Old age” can refer to something that is measured chronologically, while “elderhood” is more of a qualitative developmental stage I think. . .

Getting old(er) slows many of us down and sometimes can lead to a different kind of discomfort and pain – that of stillness and silence, sometimes born of simply slowing down and appreciating solitude, sometimes it is from being alone.  How many of us insist as we age that we shall keep on doing just as we have done before, it is the mantra of our youth-glorifying culture to always be active, participating, making, contributing, talking and so on.  But sometimes, we can find ourselves in a desert of vastness, alone and, as is appropriate for a desert, “deserted.”  This unfamiliar place and mode of being is so unfamiliar to us, it is often a frightening wilderness.  How can we go on in this strange place and why would we want to go on?  Thomas Merton observed in “Thoughts in Solitude:”

To wage war against despair is our wildness.

Perhaps we need the wilderness of desert, of that place of exile, if we hope to be able to discover our wildness.  This is what I am referring to when I write about exile, the wilderness of the unknown.

I recently met with someone who chose to return to Colorado to live.  This person had retired from the foreign service and had a foreign-born spouse and had not lived in Colorado for more than probably sixty years.  It seems that our sense of place, of belonging somewhere, is often inextricably tied to the movement we experience in our lives, along with the ancient mythological notions of exile and return.  So too our sense of belonging is often based on a comfortable way of being in the world that serves the limited and limiting needs of the ego-self (and not the higher self).

Next month is National Poetry Month, so I’ll start a bit early with this haiku from Saigyo:

So loath to lose

What really should be loathed:

One’s vain place in life,

We maybe rescue best the self

Just by throwing it away.

From Sanka-Shu (Lafleur transl.) in The Karma of Words: Buddhism and the Literary Arts in Medieval Japan (1983) at 100.  The transition to old age or elderhood can be a journey of years, a waking up in a strange and unfamiliar place, or even a drawing of a curtain of darkness between what-once-was-and-is-no-longer and a present existence which simply cannot be accepted.  In the latter place of being I am taking about the deepest level of youth glorification that can often continue during a person’s old age, when we focus exclusively on the losses sustained by our “doing” and otherwise capable self.  Death denial would seem merely to be an extension of such thinking.

Okay, there’s elderhood, old age and exile . . .  so what about pilgrimage. . . ?  It just so happens there are more than a couple springtime pilgrimage festivals if you will: Passover, one of three pilgrimage festivals on the Jewish calendar and Easter holy week, a pilgrimage time for Catholics, Eastern Orthodox and other communities.  Pilgrimage is in many respects a traditional ritual which is anti-modern in experience for many people who choose to make a pilgrimage.  Note how interesting is the common Indo-European roots of these three words: holy, whole and heal.  Definitions for pilgrimage include:

A journey to a shrine or other sacred place;

Journey or long search made for exalted or sentimental reasons;

Any long journey, especially one undertaken as a quest or for a votive purpose, as to pay homage.

And these are just a few!  In many ways, exile can be a form of liberation – whether we choose to see it that way is up to us of course (as is how we see anything).  Reminds me of the quote about seeing the world as we are, not as it is, which on this occasion I’ll attribute it to the poet and mystic William Blake, who also wrote:

Mysteries are not to be solved. They eye goes blind when it only wants to see why.

In many ways exile can be a form of liberation – whether we choose to it that way is up to us of course.  Is this perhaps why so many pilgrims go on their trek to begin with?  I’m think if many modern pilgrims walking along the Camino, making the Hajj to Mecca, or traveling to Chimayo, New Mexico – and many other places and paths.

Please stay tuned for part 2 next week. . . .

©Barbara Cashman  2015   www.DenverElderLaw.org

 

Competency and Longevity: A Brief Look at the Sorensen decision

Denver Botanic Gardens

Yesterday morning I attended the Colorado Guardianship Association bimonthly education program at Porter Place.  It was an excellent panel on a very interesting topic:  The Sorensen case and issues related to capacity and competency in the context of different types of litigation (domestic relations, probate, criminal and general civil matters).  The three well-versed presenters were Ginny Frazer-Abel, Tammy Conover and Rick Spiegle.

The Sorenson case (In re Marriage of Sorensen, 166 P.3d 254 (Colo. App. 2007) is an important case relating to the protection of a person’s rights in a dissolution of marriage proceeding. The case concerned the limits of the trial court’s discretionary authority to appoint a guardian ad litem (GAL) for a spouse allegedly suffering from a mental illness during a domestic relations proceeding.

Let’s dispense with a definitional detour first – what is a GAL?  Black’s Online Law Dictionary (2nd ed.) defines guardian ad litem (GAL) as follows:

“The party the court deems responsible for an incapacitated, handicapped, or minor in court.” Black’s goes on to defines “ad litem” as meaning “for the suit; for the purposes of the suit; pending the suit.” Thus, a GAL is responsible for an incapacitated person during a suit or case.  A GAL can work on behalf of an incapacitated adult, someone deemed incompetent, or a person under a legal disability, like a minor.

Back to Sorensen. . . .

After going through two different attorneys in the dissolution matter (wife’s first attorney moved for appointment of a GAL based on mental health concerns) and a third retained for post-decree proceedings, the Colorado Court of Appeals held that

A court should appoint a guardian ad litem for a litigant when the court is reasonably convinced that the party is not mentally competent effectively to participate in the proceeding. People in Interest of M.M., 726 P.2d 1108, 1118 (Colo. 1986); see C.R.C.P. 17(c). That rule states, in pertinent part that “[t]he court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.”

In re Marriage of Sorensen, 166 P.3d at 256.  The decision noted the exceptional circumstances and also discussed Colorado Rules of Professional Conduct 1.14 in such a scenario, noting that the rule permits an attorney to seek appointment of a GAL where an attorney reasonably believes that the client is unable to act in his or her own interests.

The procedure and circumstances under which a GAL is appointed vary according to the circumstances in which the appointment of a GAL is sought and the nature of the proceedings affecting the person about whom there is concern for competency or capacity to make decisions.  The legal context is important because it often has direct bearing on the extent to which a person is able to fully participate in and comply with legal proceedings affecting that person’s rights.  When an attorney represents a client, many duties are owed to that client, and our ethics rules, the Colorado rules of Professional Conduct, provide the rules of reason for the appropriate minimum standards for attorney conduct.  This makes it a bit tricky when an attorney represents someone who, the attorney may come to learn and reasonably believe, lacks the ability to understand the choices presented by the legal proceeding involved as well as the consequences of such choices.

As described in the quote from Sorensen above, when an attorney suspects that his or her client is lacking in capacity or competency to make decisions, there are a number of difficulties which must be overcome, including the duty of confidentiality, which looms large in any revelation by a motion to a court that a client (or party to a proceeding) needs an appointment of a GAL to represent the person’s best interests.  Ginny Frazer-Abel insightfully observed that when an attorney suggests that their client needs a GAL, the attorney usually gets fired!  This is indicated by the Sorensen case as well.

So what does an attorney need to demonstrate to a court to get a GAL appointed for someone who needs assistance (but may not realize it or may reject such help)?

For a client or potential client who is incapacitated, that special rule of professional conduct (1.14) applies where the attorney may need to take measures to protect the person’s interests.  One of these measures might include seeking the appointment of a GAL or it could include a range of other protective actions when a client or prospective client appears to be unable to act in his or her own best interests.  Some of the ways in which incapacity and competency are addressed in different areas of law include in the probate context:

Incapacity such that it is appropriate for the appointment of a guardian for an incapacitated person;

Inability to manage ones finances such that the appointment of a conservator is appropriate;

Both of the above considerations consider a person’s functional capacity to perform various activities of daily living.

Competency also factors into criminal proceedings in which a defendant may suffer from an impaired mental condition which prevents (prevented) the person from forming the requisite “mens rea” or culpable intent that is an essential element of a crime.  This is addressed in the article pertaining to insanity under the Colorado Code of Criminal Procedure, at Colo. Rev. Stat. §16-8-102 et seq.

What kind of report does it take to get a GAL appointed for someone? Here I am talking about an adult, a person presumed to have legal capacity, who may be demonstrating to their attorney or a party to a matter that the person is in need of protection because there are difficulties in processing information or otherwise behaving in ways that indicate they are making their own considered choices.

The kinds of evaluations performed by medical and mental health professional vary considerably and typically depend on the context of the court as well as the type of proceedings in which a person is involved.  For example, a person who is the subject of a guardianship proceeding will typically undergo an exam that is  much different from one performed where a person is a defendant on a criminal charge.  It is crucial to note that there are many problematic issues around mental illness, and there may be other domestic relations proceedings (like Sorensen) in which there is a long term marriage and the person on whose behalf a GAL is sought stands to lose many things to which they might otherwise be entitled.  The procedures and presumptions between probate proceedings relating to incapacity or lack of competence to manage financial affairs are often at odds with procedures and presumptions in the mental health context.  Stay tuned for more on this particular topic. . .

©Barbara Cashman  2015   www.DenverElderLaw.org

Denver Botanic Gardens

Advance Health Care Planning and the Death Taboo

Summer Flowers

Summer Flowers

Early on in my blog on this website, I wrote a post entitled Law as a Healing Profession, which included a discussion of a law review article by Mark Glover, author of  “A Therapeutic Jurisprudential Framework of Estate Planning.  So I turn again to the big picture of our culturally-accepted death denial and look at the context for some documents that lawyers often prepare to help clients cope with this uncertain enterprise known as life.  Yep, there’s another law review article I’m considering as well – this one entitled “In Denial: The Role Of Law in Preparing for Death,” by Barbara A. Noah and published at 21 Elder L.J. 1(2013) and which you can read here.

Many baby boomers are facing end of life questions and responding with a conversation with family members or loved ones about their wishes.  This is a very positive step.  The conversation must be had many times over the course of our lives, so we know what we want and communicate those wishes to others.  There are different motivations for these important conversations, which are often the result of unsettling experiences around an elder parent’s death, and which compel a person to do things differently.  These conversations are important and invaluable for families and communities, however there is still much death denial.  For a different treatment of the question of death denial, read “Confronting the Cadaver: The Denial of Death in Modern Medicine.” Death denial is found in many places in our culture, it is particularly prominent in our technology centered medical model.  How we have come to be estranged from death has much to do with the fact that most of us don’t have much experience with family members dying at home as this is typically left to the medical professionals to manage, which separates us from the passing of a loved one and what we often feel as our helplessness in the face of encroaching end of life.  The fact is, no one, no institution or technology can protect us from death.

Whose denial is it anyway?  It isn’t just a modern American phenomenon – the death taboo has relevance in many aspects of other cultures and traditions.  Wellness, disease and dying can also be understood in the broader context of medical anthropology, which often informs thinking around the dying process and death.

But even amidst the further study of death denial and criticism of its power to alienate us from life – has much really changed since Ernest Becker’s groundbreaking 1973 book The Denial of Death,  where Becker attributed the materialistic high-tech nature of modern life (I would call it post-modern, to be more precise) that left us in the shallows searching for the meaning, the missing depth of life in the context of inevitable death.  Fear and anxiety are like sharks there in these shallows, terrorizing many of us into a state of helplessness and feeling out of control.  It is one vicious cycle.  In our autonomy-valuing, action-based view of choosing what our lives are, isn’t death the ultimate indignity, particularly when it comes at the end of a disease which we may view as being one that robs one of autonomy and dignity.  Yes, I’m thinking of the ill-fated “death with dignity” bill that made it to a second reading in our legislature in Colorado.  The whole idea behind the “dignity” described in that proposed legislation was to preserve the dignity of a person’s ability to choose, to do something in response to the indignity of disease and its quality of life robbing advance.  This is human dignity that is focused exclusively on the “human doing” and not the “human being” so to speak!

Whose death is it which we confront?  Can we really be present for another’s death if we don’t really know how to do that?  Here’s an article from a nursing journal about death anxiety.

There are many other interesting developments taking place in many communities across the country which respond to the alienation from death by making it part of our lives once again.  I’m thinking here of home care for a recently deceased person, a DIY funeral care in one’s home as well as wider involvement of those who have come to be known as “death doulas” or midwives to the dying.  You can read a recent New York Times article on this topic here.

I’m sure I’ll be writing more soon about how many of us are reclaiming the use of ritual around end-of-life care and the dying process and also the re-sanctification of the dying process…

©Barbara Cashman  2015   www.DenverElderLaw.org