Identifying the Inner Landscape of Elderhood

 

Italian Arch

Last week I went on a “spring break” trip of sorts. . .  to the Jung in Ireland seminar with the Monks of Glenstal Abbey. This year’s topic was shame and pride.  It was my third trip to Ireland for this seminar and this year’s topic resonated with me because I encounter these difficult emotions – particularly shame – in my elder law and probate practice.  Some of the issues I see, which have burgeoned into legal difficulties and which may necessitate legal proceedings – often resulting in extensive involvement by a court, might begin with these difficult emotions and play out badly in the family relationship context.

In my experience, one of the most difficult things for an elder parent to contend with is a squabble over how the elder’s health challenge or cognitive decline or other age-related malady will be managed by the adult children.  This can be a difficult place for a family as the elder parent just wants the kids to stop fighting, while the children often wage a pitched battle over who has the correct approach to helping the parent manage difficulties, as well as difficulties in identifying and upholding what each child perceives (often differently) as the best interests of a parent.  These adult children often cannot understand that each of them may be just as convinced as another sibling with an opposing point of view that they are uniquely equipped to handle the delicate issue of managing finances, helping secure appropriate housing or serving as a health care agent for their parent.

I offer these posts as a kind of alternative to an elder parent doing nothing – hoping not to cause world war III among their children.   Some parents hold to their firmly held belief that they “raised their kids right” and so naïvely want to believe that this thinking will somehow immunize them from conflict or worse, exploitation.  Many elders simply choose to wait, and simply hope for the best in the event a crisis occurs, to see how things might play out on a kind of wait and see basis.  There is an alternative to this denial!

This alternative I describe is about the kairos of elderhood. Kairos being the quality of time, the paying attention to the present and its opportunities to see what is in front of us and that which we have set before ourselves.  In our culture we focus almost exclusively on the quantitative aspect of time – chronos – as we simultaneously obsess over our longevity and puzzle over what to do with it.  In this post, I will identify the inner landscape as a determiner of what we see and perceive as the outside world – and how this might free us from some of our anxieties about aging and its deleterious effect on our human doing-ness.

What is the “inner landscape” to which I refer?  Well, the inner would refer here to the landscape which is inside us, how we see the world. I am reminded of Anais Nin’s keen observation that “we see the world not as it is but as we are.”  How can we remember this important detail in our “always on” world, where the disease of busy-ness is a chronic affliction and the pace of our lives offers few opportunities (much less encouragement) of staking out some reflective and contemplative time in our lives to consider an inner landscape?

In his book Mindsight, the psychiatrist Daniel Siegel offers an insightful description about personal transformation(s) that can lead to an integration of a self otherwise consisting of many disparate aspects.  I quote Mindsight at 238:

This drive for continuity and predictability [of a sense of self] runs head-on into our awareness of transience and uncertainty.  How we resolve the conflict between what is and what we strive for is the essence of temporal integration.

How many of us could remember by heart Blaise Pascal’s injunction “in difficult times carry something beautiful in your heart?”  If we can remember, perhaps that something beautiful is a feature of our inner landscape, made visible to us by an experience when we were outdoors in nature, in an interaction with another person or being, or perhaps by some sense of our identity relative to the “outside” world.  Our sense of permanence is illusory, and draws us again to the distinction between what we see and what we look for – the latter being where the Kairos quality of time resides.

That “something beautiful” is perhaps what Viktor Frankl describes in this quote from Man’s Search for Meaning, in which he describes the challenge of readjusting to life outside for the concentration camp survivors like himself:

What was really needed was a fundamental change in our attitude toward life. We had to learn ourselves and, furthermore, we had to teach the despairing men, that it did not really matter what we expected from life, but rather what life expected from us. We needed to stop asking about the meaning of life, and instead think of ourselves as those who were being questioned by life—daily and hourly. Our question must consist, not in talk and meditation, but in right action and in right conduct. Life ultimately means taking the responsibility to find the right answer to its problems and to fulfill the tasks which it constantly sets for each individual.

I am reminded also of “Against the Pollution of the I,” by another concentration camp survivor (the blind French resistance leader), Jacques Lusseyran, where he describes “seeing” (remember he lost his sight as a child) …

It is often said that seeing brings us closer to things.  Seeing certainly permits orientation, the possibility of finding our way in space.  But with what part of an object dies it acquaint us?  It establishes a relationship with the surface of things.  With the eyes we pass over furniture, trees, people.  This moving along, this gliding, is sufficient for us.  We call it cognition.  And here, I believe, lies a great danger.  The true nature of things is not revealed by their first appearance.

Against the Pollution of the I, at 54 (2006: Morning Light Press).

I will end this post with another question, akin to the kairos-chronos distinction: If we as individuals and as persons in relationship with loved ones valued our time (how we spend it) as much as we do our space (how we fill it with stuff) – could this change our relationships for the better?

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Caregiving is Not for Sissies!

Sideways Sky

 

In my latest issue of Bifocal, the bi-monthly publication of the American Bar Association’s Commission on Aging, I noticed a helpful new resource entitled Ten Legal Tips for Caregivers. Here’s a link to the document.  In case you’re wondering who that “typical” family caregiver is, a recent New York Times article written by a resident physician, identified her as

a 49-year-old woman caring for an older relative — but nearly a quarter of caregivers are now millennials and are equally likely to be male or female. About one-third of caregivers have a full-time job, and 25 percent work part time. A third provide more than 21 hours of care per week. Family caregivers are, of course, generally unpaid, but the economic value of their care is estimated at $470 billion a year — roughly the annual American spending on Medicaid.

The comments section of this NYT article is both telling and heart wrenching, as there are so many stories of people who recount many of the article’s observations that this massive group of volunteer caregivers put themselves at risk in ways from which it may be difficult to recover.  There is the great financial risk, cutting back on work in order to care for an elder parent.  This financial strain is measurable but probably the more disturbing numbers comes from other studies concerning the lingering health effects (like depression, anxiety and chronic disease) of extended caregiving.  A JAMA article from 1999 entitled “Caregiving as a Risk Factor for Mortality: The Caregiver Health Effects Study” quantify the heightened mortality rates of caregivers.

So, enough of this gloom and doom, eh? Don’t let me get started on how this volunteer army’s numbers will be forced to multiply dramatically in the event the Affordable Care Act, with its Medicaid expansion services which many seniors now enjoy, is repealed.  Considerable portions of the Medicaid programs for elders will likely simply disappear under the block grants which could replace the ACA’s funding of these programs, which has taken several years to put in place.   Changes to Medicare from the proposed legislation known as the AHCA could compromise Medicare’s viability in a shorter time frame. That’s another blog post!

Olay, so what steps can a caregiver take to protect themselves legally?  The tip sheet identifies ten different steps or competencies which the caregiver can utilize to better assist the elder for whom they provide care as well as to protect themselves:

  1. Understand decisional capacity
  2. Know what legal authority you have
  3. Appoint a health care agent
  4. Complete a financial power of attorney
  5. Manage Social Security/ Veteran’s benefits
  6. Know your rights of access to health care information
  7. Know the signs of abuse, neglect and exploitation
  8. Know your rights if you face Family Responsibilities Discrimination (a form of employment discrimination)
  9. Understand your rights under the Family and Medical Leave Act (federal legislation)
  10. Consider a Personal Care Agreement (to counteract some of the financial losses described above)

This tip sheet, like other public resources made available by the American Bar Association, contains useful and helpful information.  It is a welcome reminder for caregivers that they should not wait until a health crisis to figure out the basics of how best to provide care for their elder.  Making advance care arrangements and learning more about how to manage information and choices for another (using durable powers of attorney) can help take some of the anxiety out of the “what if’s” so many caregivers face on a regular basis.  Turns out that taking care of the caregiver allows for better care to be provided for the elder who needs care.  That’s all for now!

© 2017 Barbara Cashman  www.DenverElderLaw.org

 

Medical Aid in Dying for Dementia Patients Who Lack Capacity

A Maelstrom?

A couple days ago a bill was introduced in the Oregon senate (S.B. 893 – you can read it here) which would permit a patient’s expressly identified healthcare agent in an advance healthcare directive, “to collect and administer prescribed medication for purpose of ending patient’s life . . . if patient ceases to be capable after having received prescription for life-ending medication.”  [Thanks Jennifer for the heads up!] This bills extends Oregon’s medical aid in dying law (the Oregon Death With Dignity Act) to allow another person (“expressly identified agent”) to get the prescription for MAID and administer it to the person who lacks the capacity to arrange for getting a prescription for MAID and self-administering it.

The definitional section of the bill, which highlights the additions to the existing Oregon law, clarifies that “expressly identified agent” is an agent under a health care power of attorney.  The additions state further:

SECTION 3. An expressly identified agent may collect medications dispensed under ORS 127.815 (1)(L)(B)(ii) and administer the medications to the patient in the manner prescribed by the attending physician if:

(1) The patient lawfully executed an advance directive in the manner provided by ORS 127.505 to 127.660;

(2) The patient’s advance directive designates the expressly identified agent as the person who is authorized to perform the actions described in this section;

(3) The patient’s advance directive includes an instruction that, if the patient ceases to be capable after medication has been prescribed pursuant to ORS 127.800 to 127.897, the expressly identified agent is authorized to collect and to administer to the patient the prescribed medication;

(4) The medication was prescribed pursuant to ORS 127.800 to 127.897; and

(5) The patient ceases to be capable.

This is a huge departure from what might be called the “status quo” of the handful of states (and last month, the District of Columbia) regarding the legality and administration of MAID.  When I presented at the CBA/CLE Advanced Elder Law Institute last week on the new Colorado End of Life Options Act, I mentioned that something like this would be inevitable.  I had no idea that this bill would be introduced the following week!

This Oregon bill basically eliminates the requirement of mental capacity for a patient to be qualified to arrange for MAID.  The Oregon statute concerning health care powers of attorney can be read here.  So many concerns come to mind I can scarcely name them.  It makes the principal’s job of selecting the correct health care agent a matter of life and death – literally.

Dementia – of a variety of types – can often last for years, so perhaps it would not be so easy for a principal with dementia to be otherwise qualified under the Oregon law (with a terminal illness and not expected to live longer than six months) to have the health care agent end the principal’s life.  I’m not certain that diminishes my concerns.

What if there is a passage of years between the naming of the health care agent and the advance of a person’s dementia?  There is often a change of relationship that occurs during this time, whether it concerns a spouse, life partner or child.  How would this be accounted for?  There is no allowances for change of circumstances here.

This prospect of putting someone out of their misery might just be what my veterinarian meant (as she was administering the drugs to end my much-loved elderly dog’s life) when she stated “I wish we could do this for people.”  But there is of course the prospect (along with many examples over the course of human history, particularly recent history) of putting another person out of our misery.  How do we discern the difference in these circumstances?  I will write more on this topic later.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

 

Springtime!

Fast facts about the Colorado End of Life Options Act

Where the Light Comes In

Today I’m presenting on this topic at the biennial Advanced Elder Law Institute, put on by Continuing Legal Education in Colorado.  It’s a two day program and I’m looking forward to it.  One of the best things about being a lawyer is I am always challenged to learn new things, as the law is – just like the rest of us – in a constant state of change and development!

As you may be aware, Colorado voters passed ballot initiative 106 last November and after certification of the election results by our Secretary of State, the law went into effect when Governor Hickenlooper signed it (by proclamation, in accordance with Article V of the Colorado Constitution) on December 16, 2016.  Colorado became the sixth state to have a physician assisted death law.  Other states with such laws include Oregon (the first state to have such a law) and Washington, where voters approved the laws as ballot initiatives; as well as Vermont and California, with their laws being passed by their legislatures in 2013 and 2015, respectively. Technically, Montana is also one of these states (by virtue of a Montana Supreme Court decision) but it doesn’t have any regulatory means of providing physician assisted death.

The title of the Colorado statute is the Colorado End of Life Options Act (EoLOA), but the terminology used for the death-causing prescription is “medical aid in dying” (hereafter MAID).

Unlike most statutes originating as legislation in the Colorado legislature, there was no preparation time for easing into this new law.  What are the implications of this?

Doctors have to get up to speed quickly on this new law.  They hold considerable power in this new law – they make the determination whether a person qualifies under the EoLOA as “terminally ill;” is “mentally capable” to request the MAID, get and fill that prescription.  Emergency rules had to be put in place by the Colorado Department of Public Health & Environment concerning the new law.  You can read the rules and download a couple of the forms on the CDPHE site.

There have been a number of complications with this new law and its immediate enactment.  The EoLOA is designed to cover all physicians and facilities unless there is a written policy notifying both patients and physicians of the facility’s policy to “opt out” of compliance with the law.  One of the challenges with simplifying this complicated issue of MAID in the initiative is that the law makes MAID available but there is no guarantee that an individual will have access to such MAID.  Several religious based systems opted out fairly early and there are other complications that have presented with other facilities.  Here’s a Denver Post article which speaks to some of those challenges.

An individual’s access to MAID may depend on where one lives.  Access may be more difficult in rural areas.  A local rural hospital board explained their “opt out” policy as follows:

The law requires that hospitals opt in or opt out of the practice; participation by hospitals and physicians is voluntary.  In December, YVMC’s Board of Trustees decided to opt out of participation in the End of Life Options Act at this time. This is due largely to the number of standards that must in place to meet both the requirements of the law and the needs of patients. The Board of Trustees, along with YVMC’s Ethics Committee, will continue to review the End of Life Options Act and will keep the possibility open to opt into the End of Life Options Act at a later date.

Because of this decision to opt out, patients are not permitted to self-administer medical aid in dying medication on YVMC’s premises, nor are employed or contracted physicians permitted to write a prescription for medical aid in dying medication for an individual who intends to self-administer medical aid in dying medication on YVMC’s premises.

Colorado is not the only state experiencing these difficulties.  Here’s a recent NY Times article on aid in dying and access difficulties.

I’ll close with three “tips” regarding MAID and minimizing conflict at the end of life:

  • Talk to your doctor and find out what all of your options are
  • Talk to your family and loved ones about what you might decide to do
  • Don’t wait too long! The MAID process takes at least two weeks….

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Ethical Wills and “Legacy Letters” – an Overview

denver elder law

Italian Marble

It’s been a few years (3 ½)  since I’ve written on this topic, and a colleague recently asked me to speak on this at an event this fall.   The fact is, I think writing an ethical will is another way of imparting meaning into our lives – whether we are young and healthy and writing to our young children about what we hold dear and hope to carry into their future, or we are old and sick and recording more of a legacy of a life lived.   In my previous blog post, I described five different approaches to writing an ethical will: an explanation; an expectation; an affirmation; an historical document (think genealogy or heirlooms); and a statement of values.

In today’s post, I’m focusing on the last approach – a statement of values.  An ethical will in this context is essentially a document which can serve to identify those values, that “something” to live for, which has sustained the author and given meaning and texture to the tapestry of one’s life.

The ethical will or legacy letter is the big picture view of what can be encompassed in estate planning.  Keep in mind that the majority of Americans die without any estate plan in place.  Many of those folks might simply respond to a question about any need for planning with a retort “I’ll be dead, so I won’t care” – but I think there is some fear lurking behind that otherwise lackadaisical sounding statement. . .

If one chooses to engage in estate planning by executing: powers of attorney which name others to act on our behalf in the event we are unable (which may include a conversation and some direction about how money should be spent for one’s care); a living will to express our end of life health care preferences; and a will which sets forth how our estate will be distributed then  — is it really much of a stretch to go from identifying what you need to live to identify something to live for? I think not!

Here is a link to a website with some touching examples of ethical wills written by a variety of people.   What I am suggesting here is that the ethical will can help us to live life more fully – read: by preparing to die – and as preparation to face the rest of one’s life, with whatever level of fear, exhilaration or trepidation that entails.

So here are some ideas to employ for that statement of values:

Describe who you have been or who you are now in relationship to your family of origin, your family of creation and perhaps your family of choice;

  • Write about those things that you hold most dear, what you are grateful for and perhaps also the things you regret;
  • Describe those principles, rituals, or teachings, etc., which have been important to you and explain why they hold such meaning to you; and
  • Write about aspects of your life and your values that demonstrate the meaning of your life, the experience of that meaning and how you have constructed the meaning(s) over the course of your life.

These are just a few examples of how, in the creative act of putting into words one’s life story, or describing the values one holds dear, one can construct a broader meaning and see connections of the disparate or seemingly disconnected parts of a life in new ways.  The context or impetus for telling one’s story may be significant to the context of the story or perhaps not at all.  Constructing a life story – even if it is only an early part of a life – is an example of how we as human are engaged in the search for meaning.  I have always been fond of Ernest Becker’s term for our species – homo poetica or “man the meaning maker.”

This search for meaning, as well as our attempts to construct and our longing to impart meaning, can be a very useful tool for us at any age.  The ethical will as an example can help us integrate our life’s experiences and help us see the “big picture” of the meaning of our life and the lives of others as well.  It reminds me of Viktor Frankl and his logotherapy, based on “will to meaning.”   Each of us, no matter what is the ease or difficulty we face in our lives, remain free to find the meaning in our own life.  Writing an ethical will can help us construct that meaning.

© 2017 Barbara Cashman  www.DenverElderLaw.org

 

Colorado End of Life Options Act Vocabulary part II

denver elder law

Strange Orchid

 

So this is the second post examining our new statute. Today I’m focusing on a couple of its provisions which provide an intersection which I find quite troubling.  Let’s look first at  C.R.S. 25-48-103. Right to request medical aid-in-dying medication

  • (1) An adult resident of Colorado may make a request, in accordance with sections 25-48-104 and 25-48-112, to receive a prescription for medical aid- in-dying medication if:
  • (a) The individual’s attending physician has diagnosed the individual with a terminal illness with a prognosis of six months or less;
  • (b) The individual’s attending physician has determined the individual has mental capacity: and
  • (c) The individual has voluntarily expressed the wish to receive a prescription for medical aid-in-dying medication.
  • (2) The right to request medical aid-in-dying does not exist because of age or disability.

Seems simple enough, but did you read (2)?  This (2) is particularly interesting as it looks to be intended to try and minimize criticism from two quarters: First from elders and those who work for and with them (like yours truly) who can both understand the quality of life aspects of the availability of MAID to frail and vulnerable elders; and can also see the connection between “duty to die” (remember Gov. Lamm?) and a “right to die” based on . . . .  a perceived (by others) quality of life and use of scarce resources.  This statutory language provides no comfort for me.  Secondly, this (2) is also a vain attempt to disqualify criticisms from the disability rights community (folks like Not Dead Yet,) who challenge equating “quality of life” and “loss of autonomy” with “dignity.”

If you think I’m exaggerating the concern with ageism and loss of dignity of elders inherent in this statute, then simply turn your attention to §25-48-116 (Immunities for actions in good faith) which states at (3):

A request by an individual for, or the provision by an attending physician of, medical aid-in-dying medication in good-faith compliance with this article does not:

  • (a) Constitute neglect or elder abuse for any purpose of law; or
  • (b) Provide the basis for the appointment of a guardian or conservator.

Can the really say this?!!  Does the provision of these broad and sweeping statements pertaining to elders or the disabled address the underlying issue and concern about potential for coercion or exploitation? I don’t believe it does at all – in fact it points out the law’s weaknesses here. Yet the proponents of the initiative denied and discounted any concerns from those who would question putting vulnerable elders at risk of being coerced and exploited.

The statute’s attempt to preempt any claim that another’s encouragement or assistance (I can think of several different dangerous scenarios off the top of my head) or “helping” someone with availing themselves of MAID would not constitute elder abuse, coercion, undue influence, or some other improper activity is shocking to me.  The fact remains that there are a lot of elders who are not in good health who could easily be convinced to use MAID.  Will the doctors be sensitive to this? Will they have the training and the resources to detect the “big picture” of what an exploiter may be attempting to gain from an elder who is simply trying to use MAID?  These questions trouble me.

A recent case before the European Court of Human Rights (ECHR), Gross v. Switzerland, involved a Swiss national who sought physician assisted suicide on the grounds that she was old and adversely affected by the continued decline of her faculties.  Previous ECHR decisions concerned the assisted suicide for persons who were seriously ill.   Turns out there was a Swiss woman who did not have a serious illness but she had simply grown tired of living in her octogenarian body.

The concern about aging and quality of life is real and not imagined, especially based on this (quality of life) being one of the top reasons for Oregonians choosing death.  It reminds me of the statistics about victims of elder abuse – that they tend to have their lives shortened by such abuse.  Our statute would seem to affirm that the life-shortening on quality of life grounds is legitimate and simply a matter of one’s own “choosing.”  It validates what many of us suspect, that if things don’t look like they will get any better for us, we might as well give it up and cut our losses.  I’m thinking of a well written New Yorker article from June 22, 2015 entitled “The Death Treatment: when should people with a non-terminal illness be helped to die?”  I’m back to my concern stated in my previous post about the power we have given over to our doctors, who now determine whether a person suffers from a terminal illness and is otherwise entitled to seek MAID.  In Colorado, our law defines self-administration, but the statute has no explicit requirement that an individual self-administer.  We don’t have to “jump” to any conclusions here – the path is just a baby step from self-administration to administration with some assistance.

So if we only think there exists a requirement of self-administration, then the line between a doctor prescribing MAID and the “delivery” of the drugs either through self-administration or with assistance (albeit often in the guise of encouragement) of others is a thin one indeed.  I quote from The New Yorker article here:

The laws seem to have created a new conception of suicide as a medical treatment, stripped of its tragic dimensions. Patrick Wyffels, a Belgian family doctor, told me that the process of performing euthanasia, which he does eight to ten times a year, is “very magical.” But he sometimes worries about how his own values might influence a patient’s decision to die or to live. “Depending on communication techniques, I might lead a patient one way or the other,” he said. In the days before and after the procedure, he finds it difficult to sleep. “You spend seven years studying to be a doctor, and all they do is teach you how to get people well—and then you do the opposite,” he told me. “I am afraid of the power that I have in that moment.”

I am concerned that what the End of Life Options Act appears to offer folks is freedom of choice, but it is really more about the giving away of more power to our doctors as well as making segments of our population even more vulnerable to coercion.  More later!

© Barbara E. Cashman 2017   www.DenverElderLaw.org

 

 

Colorado End of Life Options Act – A Vocabulary Lesson

A Threshold

I’m gearing up for a continuing legal education program where I’ll be presenting on this new Colorado statute [EoLOA for short, even if it sounds more like Hawaiian], so I’m now writing part of my materials.  I thought I’d start with the basics in this post by looking first at how terms are defined (or not defined) in the statute as well as the parameters of the “right to request” life ending drugs.  I will list the entire definitional section here, but due to space constraints, will focus only on a couple salient terms in this post.

Here’s an overview of some of the key terms in the statute’s definitional section, 25-48-102:

  1. Adult means an individual who is 18 years of age or older;
  2. “Attending physician” means a physician who has primary responsibility for the care of a terminally ill individual and the treatment of the individual’s terminal illness.
  3. “Consulting physician” means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding a terminally ill individual’s illness.
  4. “Health care provider” or “provider” means a person who is licensed, certified, registered, or otherwise authorized or permitted by law to administer health care or dispense medication in the ordinary course of business or practice of a profession. The term includes a health care facility, including long-term care facility as defined in section 25-3-103.7(1) (f.3) and a continuing care retirement community as described in section 5-6-203 (l)(c)(I), C.R.S.
  5. “Informed decision” means a decision that is:
  • (a)Made by an individual to obtain a prescription for medical aid-in- dying medication that the qualified individual may decide to self- administer to end his or her life in a peaceful manner;
  • (b)Based on an understanding and acknowledgment of the relevant facts; and
  • (c)Made after the attending physician fully informs the individual of;
  • (I) His or her medical diagnosis and prognosis of six months or less;
  • (II)  The potential risks associated with taking the medical aid-in- dying medication to be prescribed;
  • (III) The probable result of taking the medical aid-in-dying medication to be prescribed;
  • (IV) The choices available to an individual that demonstrate his or her self-determination and intent to end his or her life in a peaceful manner, including the ability to choose whether to:
    • (A)Request medical aid in dying;
    • (B) Obtain a prescription for medical aid-in-dying medication to end his or her life;
    • (C) Fill the prescription and possess medical aid-in-dying medication to end his or her life; and
    • (D) Ultimately self-administer the medical aid-in-dying medication to bring about a peaceful death; and
  • (V) All feasible alternatives or additional treatment opportunities, including comfort care, palliative care, hospice care, and pain control.
  •  (6) “Licensed mental health professional” means a psychiatrist licensed under article 36 of title 12, C.R.S., or a psychologist licensed under part 3 of article 43 of title 12, C.R.S.
  • (7)“Medical aid in dying” means the medical practice of a physician prescribing medical aid-in-dying medication to a qualified individual that the individual may choose to self-administer to bring about a peaceful death.
  • (8) “Medical aid-in-dying medication” means medication prescribed by a physician pursuant to this article to provide medical aid in dying to a qualified individual.
  • (9) “Medically confirmed” means that a consulting physician who has examined the terminally ill individual and the terminally ill individual’s relevant medical records has confirmed the medical opinion of the attending physician.
  • (10) “Mental capacity” or “mentally capable” means that in the opinion of an individual’s attending physician, consulting physician, psychiatrist or psychologist, the individual has the ability to make and communicate an informed decision to health care providers.
  • (11) “Physician” means a doctor of medicine or osteopathy licensed to practice medicine by the Colorado medical board.
  • (12) “Prognosis of six months or less” means a prognosis resulting from a terminal illness that the illness will, within reasonable medical judgment, result in death within six months and which has been medically confirmed.
  • (13) “Qualified individual” means a terminally ill adult with a prognosis of six months or less, who has mental capacity, has made an informed decision, is a resident of the state, and has satisfied the requirements of this article in order to obtain a prescription for medical aid-in-dying medication to end his or her life in a peaceful manner.
  • (14) “Resident” means an individual who is able to demonstrate residency in Colorado by providing any of the following documentation to his or her attending physician:
    • (a)A Colorado driver’s license or identification card pursuant to article 2 of title 42, C.R.S.;
    • (b)A Colorado voter registration card or other documentation showing the individual is registered to vote in Colorado;
    • (c)Evidence that the individual owns or leases property in Colorado; or
    • (d)A Colorado income tax return for the most recent tax year.
    • (15)“Self-administer” means a qualified individual’s affirmative, conscious, and physical act of administering the medical aid-in-dying medication to himself or herself to bring about his or her own death.
    • (16) “Terminal illness” means an incurable and irreversible illness that will, within reasonable medical judgment, result in death.

So here goes . . . this law is only for adults! There is no provision for minors as is allowed in some European countries, like Belgium.  Next, you’ll note that the physicians (they must be licensed M.D. or D.O., no N.P. or P.A. allowed) have a huge amount of responsibility.  Remember that the gist of this law is to remove the threat of criminal prosecution for assisting a person to die by prescribing life-ending drugs under certain proscribed circumstances, so this focus on the doctors is wholly appropriate.

The two basic types of physicians are the attending and the consulting.  The attending physician is the one who has primary responsibility for the care of the terminally ill individual.  We are familiar with the phenomenon of the “pot shop” doctor here in Colorado . . .  well this provision is designed to ensure that the attending is not someone who simply provides the scrip for the life-ending medication or “medical aid in dying” [hereafter MAID] as the statute calls it.

The attending physician must “fully inform” the individual of the diagnosis, prognosis of six months or less; as well as the choice (see (5) (c) above) and consequences of requesting MAID as well as the alternatives including additional treatment, palliative care and hospice care.  Unfortunately for us, the terminology used in (5) is “informed decision,” which is a term foreign to Colorado law.  In the statute it is tied to “mentally capable” in (10), which includes the ability to make and communicate an informed decision to health care providers.  The Colorado term which is familiar to me is from the Colorado Medical Treatment Decision Act, at C.R.S. §15-8.7-102(7), which defines “decisional capacity” as the ability to provide informed consent to or refusal of medical treatment.  A similar definition is found in the health care POA statute, at C.R.S. §15-14-505(4).  The preceding section of that statute also states (at §15-14-504(4):

Nothing in this part 5 shall be construed as condoning, authorizing, or approving euthanasia or mercy killing. In addition, the general assembly does not intend that this part 5 be construed as permitting any affirmative or deliberate act to end a person’s life, except to permit natural death as provided by this part 5.  

Interesting, huh? While reviewing inconsistencies between these terms describing capacity is something attorneys might get excited about, it appears unlikely to provide difficulties for the physicians involved.   I will discuss the “mentally capable” determination a bit more in a later post that looks at mental health concerns.  Likewise, the duties and responsibilities of the attending physician are numerous and I will continue the discussion of what the statute describes in a later post.

I will conclude this first post about statutory language with an observation.  Death as described in the EoLOA is defanged, now a technical medical procedure, even a treatment if you will, for perceived intractable suffering.  The option to seek out MAID to end suffering involved with a terminal illness has little to do with the physical pain incident to illness (statistics from Oregon bear this out) and more with the loss of dignity and quality of life, presumably incident to the progression of the disease.  Why should an elder law attorney like me be concerned about this? Because in our culture, much of the experience of aging is focused on losses and precious little attention is directed toward gratitude for our continued life, such as it may be!

The other matter that concerns me greatly in the “technocratizing” of dying and actively choosing death is that we surrender even more power to our doctors.  This has little to do with our perception of how medical technology is used to extend life, but rather is concerned with our thinking about the nature of life, including disease, dying and death.  Our doctors cannot protect us from suffering – they are only doctors after all, but they can help manage treatment of pain.

More “vocabulary terms” next week.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

 

 

When and How Should Someone Report Suspected Elder Financial Abuse or Exploitation?

Safety in Numbers

My posts about reporting elder abuse remain my most popular among readers and since it’s been a while since I’ve written on the topic, I thought it was time! I get regular calls from people about this question, often from adult children who are concerned about what is going on with a parent.  Plus, I listened to a webinar put on by the ABA last week about recognizing and preventing these scams.  Today I’m focusing on federal programs and resources.  Here’s a link to the US Department of Justice (DOJ) Elder Justice Initiative to get started.

Among the presenters at the webinar were a representative from the Consumer Financial Protection Bureau (CFPB) and a prosecutor from the US DOJ Civil Division’s Consumer Protection Branch.  I mention these two federal resources because most of us tend to focus only on local or state law enforcement when it comes to reporting suspected financial abuse or exploitation of an elders.  One other recent detail popped up on a listserve recently, reporting a scam concerning what was represented to be an “escrow company” to the victim and who told her they were assisting in the sale of her time share in Mexico.  Apparently tens of thousands of dollars were cumulatively wired to the scammers, for the purported purpose of covering taxes and transaction fees.  I searched online and found several posts about these types of scams that sound like perfectly legitimate businesses.  One of these scammers was using the name of a legitimate Colorado business.  Couple this with a scammer’s ability to “spoof” a phone number on the recipient’s caller ID, and it’s a pretty dangerously convincing mix!

The scammers are as familiar as the rest of us with the adage “if it’s too good to be true it probably is,” but some of these scams persist, coming in many new and different forms.  The more troubling scam scenario however is the much more legitimate sounding scam, which doesn’t purport to be a “sure thing,” but instead rely on a common human tendency toward “in for a penny, in for a pound” behavior, or what economists refer to as sunk cost fallacy and psychologists call commitment bias.

Many of these scenarios involve mail fraud and wire transfers.  Read a recent press release from the DOJ about actions concerning mail schemes targeting by foreign nationals.  Last March, the CFPB issued an advisory and a report with recommendations for best practices for banks and credit unions on “how to prevent, recognize, report, and respond to financial exploitation of older Americans. Financial exploitation, the illegal or improper use of a person’s funds, property or assets, is the most common form of elder abuse and costs seniors billions of dollars per year.”  The Advisory, which contains recommendations concerning the development of internal controls for the protection against and reporting of exploitation, training of staff to prevent , detect and respond to elder financial exploitation and using appropriate technology for the detection and reporting to local, state and federal authorities, is available here.  The executive summary of the CFPB’s report begins with an important message:

Elder financial exploitation has been called the crime of the 21st century and deploying effective interventions has never been more important. Older people are attractive targets because they often have assets and regular income. These consumers may be especially vulnerable due isolation, cognitive decline, physical disability, health problems, or bereavement. Elder financial exploitation robs victims of their resources, dignity and quality of life—and they may never recover from it.

You can read more of the report here.

There are many ways that scammers defraud elders and some of these include Medicare, Medicaid and health insurance fraud (which is akin to a form of identity theft), IRS and tax scams, mail fraud and internet scams involving “sweethearts” and online dating, sweepstakes and lottery “winnings” and tech support scam.  The Justice Department also has a helpful roadmap identifying what type of scam and which federal agency to which it can be reported.

One valuable thing for people to consider in reporting an incident of suspected elder financial abuse and exploitation is this: a single victim may not have suffered a devastatingly huge loss, relative to their life savings perhaps, and it may even have been a relatively small loss, but if it is multiplied among a range of victims nationwide, what the scammers take can amount to millions of dollars.  This is why reporting remains critically important.  We are charting new ground here as many facts and figures about the incidence and forms of elder financial abuse and exploitation remain unknown due to underreporting.

That’s all for now.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

End-of-Life Options: Medical Technique Portrayed as a Right pt. 1

Ketring Lake at Dusk

For the next few posts I promise to vary my topics a bit, so I won’t be writing solely on the new Colorado law and its implications.  But for this post, I wanted to spend a bit of time on the “big picture.”  I had the privilege today of spending the morning listening to Jennifer Ballentine’s thoughtful and informative presentation on the new law and what it means in practice and policy for healthcare providers and facilities.  Many of the folks there were from the hospice and palliative care community, several different residences (skilled nursing facilities, assisted living facilities and continuing care retirement communities) were represented and of note were the attendance of several first responders (EMS or firefighters). Perhaps in a subsequent post I will delve into the dilemmas of EMS providers who may be unaware of a person’s use of life-ending medication under the new law (as they are sometimes unaware of do not resuscitate orders).   Many different people in attendance with lots of challenging questions.   But only some of those questions could be answered by reference to the new Colorado law.

The situation with the new law was an abrupt sea change.  The day before this new law was certified by the governor all of these folks from their diverse communities were continuing to discourage very ill people from thinking and possibly acting upon suicidal thoughts and wanting to end it all.  Once the law was certified, then BAM – all that changed.  No easing into any transitional period as California and Vermont enjoyed (with their “end of life option act” and “patient choice at end of life” statutes respectively) . . .

I will try to steer clear of the pseudonymous quicksand of what these types of medical services provided are called: physician assisted suicide, physician assisted death, (medical) aid in dying, (voluntary active) euthanasia, death with dignity, but it is challenging when there is no clear marker of when living is perhaps coming to a close and dying is well-nigh.    I liked one blogger’s beef with all these euphemisms and her suggestions that we perhaps call it “assisted self-administered lethal ingestion.”  I think this descriptor is best because it is so technical sounding and our new law champions a medical technique, with precious few indicia or garb of a “right” to die.

To wind up, I will turn to a quote from the late poet, novelist and social critic James Baldwin:

Perhaps the whole root of our trouble, the human trouble, is that we will sacrifice all the beauty of our lives, will imprison ourselves in totems, taboos, crosses, blood sacrifices, steeples, mosques, races, armies, flags, nations, in order to deny the fact of death, which is the only fact we have.

     James Baldwin, The Fire Next Time

How to identify the boundaries of death versus suicide – where are the distinctions here among all the different labels? Our new law does explain that the actions in accordance with the procedure set forth in the End of Life Options Act do not constitute suicide, assisted suicide, mercy killing, homicide or elder abuse.  Does this move our conversation forward?  Can a law do this?

© 2017 Barbara Cashman  www.DenverElderLaw.org

 

A Brief History of Death

Living and Dying at the Same Time

Can you discern in this picture what is alive and what is dead?

Death, the inevitable.  Death, the rejected.  Do we feel sorry for death? No! Of course not.  Is it separate from our lives or merely a natural part of them? What parts of our lives are we more comfortable with or at ease with and how do these factor into our relationship with death?

Whoa Barb . . . relationship with death, relationship to death.  What is it that holds us to our life and, inevitably, leads us to our death?  What is the meaning of this relationship? Well, I can only think that this kind of question is what poetry was meant for. . .  so I turn to the Trinidadian poet Derek Walcott’s poem Love After Love:

The time will come when, with elation,

you will greet yourself arriving

at your own door, in your own mirror,

and each will smile at the other’s welcome,

and say, sit here. Eat.

 

You will love again the stranger who was your self.

Give wine. Give bread. Give back your heart

to itself, to the stranger who has loved you

 

all your life, whom you ignored

for another, who knows you by heart.

Take down the love letters from the bookshelf,

 

the photographs, the desperate notes,

peel your own image from the mirror.

Sit. Feast on your life.

Here is the poem read aloud (by Jon Kabat-Zinn)

When I started to put together this post, I thought I’d try a google search of my title, which tends to bring up something fascinating.  Sure enough, there was another reminder about my lapsed New Yorker subscription . . . a post dated 11/6/16 by Nir Baram.  The New Yorker has such insidious ways of luring subscribers back again and again!  But I will remain undeterred.

So what might I say for this kind of post – brief, about something as impersonal and ultimately personal as death?  I might describe the denouncing, distancing, the walking or running away from, that so many of us steadily manage over the years of our lives.  But what happens when we realize that the distancing has only been in the shape of a giant and fascinatingly graceful circle, or perhaps a woven pattern or a circuitous route ala Jackson Pollock?  Can we even recognize it as our own, part of our heritage as mortal beings?

How is it (I asked my engineer friend this last night) that we can gauge or measure someone or some thing’s age?  Its beginning and its end?  I certainly see the need for practical purposes to come up with such boundaries.   But we tend to observe them without any questions at all.   And the location of that separation as well as its origins, well that’s another matter.  We might arrive at a place where or a time when we might question those boundaries.  Whose death is it? Who dies?  Stephen Levine’s book explores this well.

My post today is perhaps a window dressing of sorts for some writing I will be doing about the Colorado End of Life Options Act.  I will be interrogating some of the ideas, beliefs, thoughts, expectations and so forth about dying and death (particularly euthanasia) in some future posts.  I’ll close with a quote from a favorite poet, E.E. Cummings:

Unbeing dead isn’t being alive.

© Barbara E. Cashman 2017   www.DenverElderLaw.org