The 2012 Election Year and Elder Law

Elders in our population have historically been a consistent force of turning out in great numbers to vote.  As our population gets older, however, difficulties with mobility can have an impact on that visit to the polls.  I grew up, like most baby boomers, with excellent role models of voting from both my parents and my grandparents.  My paternal grandmother served as president of the League of Women Voters in Kansas City.  What are some of the challenges older people at the polling place face now? Many disabled and elderly voters face new difficulties at the polling place.  Read more here.

In terms of hot-button issues, probably the #1 is Medicare (no surprise, or perhaps it’s tied with Social Security).   Here’s a good article from the New York Times that discusses some of the changes proposed by Mitt Romney and his running mate.      This article refers to “Mediscare tactics,” a recurring election year phenomenon.

If you’re looking for more information, this recent post in Scientific American titled “Where the Presidential Candidates Stand on Medicare and Medicaid” is helpful as well

If you’re tired of all the polarity, intransigence and name-calling, you might consider looking at Project Vote Smart here.     They have email updates you can subscribe to as well as a blog.  Visit this site for bios, voting records, positions on important issues, ratings and the like.

And what about protected persons (those subject to a guardianship) and voting rights? Well, they can still vote!  They maybe institutionalized and may have lost many of their civil rights over their day-to-day decisions, but they have not been disenfranchised!

This year  will be interesting, as it is very evident we have come a long way from the early days when Florida Congressman Claude Pepper was the voice of the elderly voting bloc in Florida and served as an eloquent spokesman for so many elders nationwide.  The population of elders is much larger now, encompasses a wider range of ages and is politically more diverse than ever.

What is interesting is that as new requirements with voter registration and voter identification are being tested in many states, our population continues to age and the challenges of mobility, disability and ease of voting will continue to grow for this population.  This trend will continue into the future, as the numbers of the oldest of the old continue to grow as does the number of baby boomers going into retirement.  For further reading, check out this recent report from the Brennan Center for Justice at NYU law school here.     If you need to check and make sure you are registered to vote in Colorado, click here.  Whatever the weather – get out the vote!

Can A Person Thrive in the Face of Terminal Illness?

This may seem like a difficult question to pose, since much of the conventional wisdom in our death-fearing and death-denying culture encourages the terminally ill and their loved ones to put on “a game face” and “fight” until the bitter end.  Fight what exactly?  The inevitable?  What is the point in that – each one of who is living will die someday.  So how did we develop this idea that somehow “our disease” is not really our own but rather something that has come upon us to relieve us of what is rightfully ours, some perceived entitlement to a life that we have envisioned as how it is supposed to play out?  Many survivors of terminal illness mark the disease as a transformation in their lives, while others simply view it in the broader context of life.  Each of us has our own way of living just as we have our own way of dying.  It is no surprise that modern medicine’s advances have fortunately separated us from the specter of early death due to chronic diseases and conditions that can now be successfully managed to extend life.  These advances have often come at a cost of separating us from death, treating death as failure of medical treatment, not as the inevitable conclusion of a life well-lived.  In case you’re wondering, I’m talking about adults and elders, not kids or younger adults . . .

So back to the title of this post – I admit it is not original but comes from this recent post by Rick Reynolds.  This is a great post, his answer is a resounding yes .  He recounts the story of a young woman who committed herself to “thrive” in the face of her struggle with terminal illness.  She embraced her fear, her grief, and sent it on its way so she could get on with the real work of her life – thriving.  Reynolds, a hypnotherapist, noted that this woman  lived more life in the three years after her terminal illness diagnosis than all of his other clients combined.

In her groundbreaking work “On Death and Dying,” first published in 1969, Dr. Elisabeth Kübler-Ross identified the dying as teachers and went on to identify five stages of grief:

      1. denial and isolation
      2. anger
      3. bargaining
      4. depression
      5. acceptance

How can we work through the difficult words, feelings, and conversations;  what can we  say as the end of life nears?   Life is fragile and uncertain!  Acknowledge fear and embrace it.  Fear can diminish in size when it is appropriately regarded instead of viewed from a far off vantage point.   Acknowledging, naming and embracing the fear can dissipate anxiety.  We can pretend the certainty exists in our lives, or we can actively negotiate the uncertainty.  How do we acknowledge fear and embrace hope in the face of our own mortality? Practice!  Here I’m thinking of Dr. Jerome Groopman’s book “The Anatomy of Hope” (2004: Random House), and in particular chapter eight “Deconstructing Hope,” in which he writes about his meeting and interview with psychologist and professor Richard Davidson. )  Davidson is also associated with the Mind & Life Institute  an organization dedicated to promoting cross-cultural dialogue concerning the advancement of scientific and spiritual understanding of how our minds work.)  Groopman writes about Davidson’s definition of hope as a feeling that has both cognitive and affective parts, which work together to provide affective forecasting and is something that most healthy brains can relearn.  The Anatomy of Hope at 192-95.  Indeed, there is hope for hope. . .

More about fearlessness – in the face of uncertain future and, BTW, isn’t all future uncertain, by its very nature? I liked this post about what can be lost as a result of tragedy – this another lesson from 9/11.  Watch the video of 9/11 survivor Roy Cohen here.

What survives death? Death is a mystery, but most likely not the biggest mystery.  The biggest mystery is love.  This is the basis of human immortality, because love is the only thing that survives death.  I want to mention Warren Zevon’s song “Keep Me in Your Heart,” the song he wrote after his mesothelioma diagnosis.  It beautifully combines love and fearlessness.  You can listen to it here.    And speaking of heart . . .  it was the author of one of my favorite books – The Little Prince (I have it in different languages), Antoine de Saint-Exupery who noted:

 It is only with the heart that one can see rightly.

We are not powerless in the face of uncertainty.  We can offer words and presence.  Presence is a form of compassion, and we can offer both to those struggling through or being with challenges from an illness.  What kind of words? Check out this article about how to offer comfort to those nearing the end of their lives.

Where is a person at the end, and how did they get there? This is another great article by Paula Span in The New Old Age series in the NY Times is “Where the Oldest Die Now,”   which cites to recent evidence that more elders are dying in their homes than in hospital ICUs.  I think we can call this progress, progress toward recognizing the humanity of death.

Considerations for Estate Planning for the Terminally Ill

 

Life is unpredictable and uncertain – we all know this – but many of us struggle with these facts on a daily basis.  I think planning can help prepare all of us – whether we are healthy or ill – for the inevitable and help us take stock of what matters most in our lives.  Yes, I have even gone so far as to write about law as a healing profession in this regard!  When someone has been diagnosed with a terminal illness, the unpredictable and uncertain qualities of life take on a whole new meaning.  A conversation with a knowledgeable and sensitive attorney can help to provide individuals and families facing terminal illness with some certainty in a stage of life that is usually very difficult.  Confirming estate plans or making them for the first time, as well as making arrangements regarding health care matters like medical durable powers of attorney and advance directives, can contribute to precious peace of mind.  What many people tend to overlook is the value of this process and making the arrangements in advance.  Benefits for the ill person include a sense that “loose ends” are tied up, and a similar benefit for the survivors is gained by knowing that plans are in place and that there is a “known universe” of how to take care of practical matters after a person has passed away.  This leaves more space and time for survivors to grieve.  Fortunately, there are excellent resources in the Denver metro area to support individuals of all ages in the grieving process.  Check out the Heartlight Center, a great community resource.

What do the terminally ill need to consider?  Here’s a short list:

  • health care power of attorney (to name an agent to provide informed consent for treatment);
  • Colorado advance directives (living will);
  • the Vulcan green MOST form (Medical Orders for Scope of Treatment);
  • general (financial) power of attorney;
  • a will (to identify your beneficiaries and who will be the personal representative in charge of carrying out your wishes in your will);
  • a trust for minor or disabled children or for minor grandchildren.

These are usually not easy things to discuss, but most people benefit from this conversation and planning, coming away with reported peace of mind.  The legal issues may seem straightforward and they often are, but they may be entangled with emotional, financial and medical matters which tend to complicate things during a time of stress and anxiety.  I also recommend people facing terminal illness and their families take advantage of the many resources available to chart the difficult emotional waters of this time.  During the times when I was health care agent for my father, I found two books in particular very helpful.  One of my favorite books written by a doctor is Dying Well,  by Ira Byock, M.D., (1997) and another book of his I have blogged about is titled  The Four Things That Matter Most: A Book About Living.  The Four Things are about saying what really matters (“please forgive me,” I forgive you,” “thank you,’ and “I love you”)  before a person passes away, and Dying Well is about reclaiming dignity in the dying process and providing compassionate care for and presence with a dying loved one.

Another doctor/author I like is Jerome Groopman, M.D., who has written several books and is a contributor to The New Yorker . The Anatomy of Hope (on my bookshelf, about terminal illness) published in 2004, and Your Medical Mind,   published in 2011, about how to choose your medical decisions wisely, are especially helpful to individuals and loved ones facing terminal illness.

People facing terminal illness may not want to change anything about how they live their lives, or they may want to rearrange things entirely.  These are entirely individual decisions and each of us faces our own mortality differently.  Getting sound and sensitive advice about financial and legal matters as part of an estate planning consultation with an attorney can help bring some of the stress of the unknown into the “known world,” and ease the burden of uncertainty during difficult times.

©Barbara Cashman, LLC  www.DenverElderLaw.org

How Does the Service Many Elder Law Attorneys Provide Differ From the More “Traditional” Attorney-Client Relationship?

I’m pleased to be presenting again at the Fourth Annual Elder Law Retreat in Vail, Colorado next week.  It’s put on by our Colorado Bar Association Continuing Legal Education, Inc. and is co-sponsored by the Elder Law Section of the CBA and the Colorado Chapter of the National Academy of Elder Law Attorneys. My breakout sessions cover the intersection of ethics and practice management for attorneys practicing in the elder law field.

I thought an overview of some of the different ways that elder law attorneys are hired by and work with clients, and how the relationships can be more complicated than the more “traditional” areas of practice would make an interesting blog post.  So here goes. . . .

I’ve said this in a few other places already, but we’ve never had this many 80 and 90 year-olds on the face of the planet before!  Many of us baby boomers hope that our life spans will extend beyond those of our parents, so what’s the big deal?   That’s where the relatively new field of elder law comes in . . . .

What is Elder Law?

Elder law is a practice area that started out as an outgrowth of the more traditional trusts and estates field, but is essentially a general practice area that is concerned with the needs and legal challenges of older people (elders) .  With medical advances and relative affluence, people are living longer, and periods of incapacity are more common, along with a greater incidence of cognitive and physical disability.  Other factors that impact the growth of elder law are the outsourcing of some of the care that families have traditionally provided elders, which has resulted in no small part from the number of women in the workforce, along with family members living apart from each other geographically.  Some important distinctions are relevant here – elder law attorneys may sometimes:

    • meet with clients at home or in health care facilities
    • meet with clients who are brought in by family member to the lawyer’s office
    • work with other allied elder care professionals like geriatric care managers
    • work within a “communitarian” or family-based approach to benefit all family members

These are just a few examples of how the “traditional” single client attorney client relationship, that is “typically” geared at some type of litigation to fix a problem differs widely from an approach where an elder client is looking for counseling  and preparation of documents that will facilitate their continued support with family member involvement.

The majority of elder law attorneys – except those practicing in contested probate matters – tend to look for ways to avoid litigation and may adopt an approach that is not the traditionally “adversarial” approach but take one that is decidedly “facilitative” in outlook.  What I mean here is an attorney who can think outside the box and negotiate agreements that aren’t exclusively protection oriented but are results oriented.  In a litigation obsessed world, many lawyers are focused exclusively on their concerns as lawyers – avoiding bad results for their clients.  This is often to the detriment of what the client wants – a creative solution that provides results.

How Does the Delivery of Elder Law Legal Services Differ from a More “Traditional” Approach?

Due to the age of many clients, elder law attorneys must be aware of and sensitive to a number of issues which do not affect a more traditional law practice.  Some of these include:

    • sensitivity to cognitive and physical limitations that may be associated with aging (mobility, hearing, etc)
    • familiarity with medications  and how these may impact the attorney/client relationship
    • awareness of impact of family dynamics and how these impact legal and financial planning
    • sensitivity to relationships needed to maintain well-being and autonomy

 

How Elder Law Attorneys Can Work with Clients

Many of us who practice elder law work with our clients in ways that are beneficial to our clients but that sometimes appear to fall outside the norm of a “standard” attorney-client relationship.  These can include a need for the attorney to:

    • conduct a separate meeting with an elder brought in by a family member
    • consider whether joint representation (two people) or multiple representation is appropriate
    • determine who is “the client” so as to identify the person to whom the attorney owes her duties
    • assess whether a potential client has the capacity to enter into an agreement with an attorney for her services
    • work productively within difficult or strained relationships among family members
    • be able to work with other people who are involved in the elder’s care

For me, elder and estate law and mediation practice is satisfying work because of the human relationship and “helping” aspects.  Sometimes people think this sensitivity might be inconsistent with the legal analytical skills required to come up with a sound strategy and to draft effective documents to execute the strategy, but I assure you that there are many of us who are attracted to this field because of this unique skill set required.  And yes, many of us happen to be women, so we can relate to many of the caregiver issues in ways that are consistent with our own experience.

Elder law is an interesting and intellectually challenging area of practice and it is important that the client feel comfortable working with an attorney and discussing many personal matters.  In my opinion, estate and elder law attorneys tend to be more responsive and respectful of people’s vulnerabilities – whether these are due to skepticism about what services an attorney is proposing to provide, a client’s difficulty with understanding what “the law” is relevant to a particular question, or a client’s state of fragile or frail health.  I have to say that I enjoy working with other estate and elder law attorneys  in the Colorado Bar Association’s Trusts & Estates and Elder Law Sections– they typically know how to play nicely together in “the sandbox.”

 ©Barbara Cashman, LLC   www.DenverElderLaw.org 

Legal and Financial Considerations for Nontraditional Relationships part 2

 

Last night I attended the monthly meeting of the Women’s Estate Planning Council , and as usual – we had a very informative speaker.  Bradley L. Kolstoe  presented “Savvy Social Security Planning,” about understanding the importance of Social Security.  I have to say that I would use the term “understanding” from my perspective here rather loosely.  It reminds me of P.L. Travers’, the author of Mary Poppins (yes, she’s still around – she recently battled Voldemort at the London Olympics!) description of the term as “standing under.”  There was a downpour of information and a lot of  it rolled right off me!  Luckily, we can visit Brad’s website here, and it has several helpful articles

So what about Social Security and nontraditional relationships?  Well, social security retirement is the biggest federal benefit regime and it only applies to individuals and married couples (I’m leaving out minor children and others intentionally here).  What are the implications for couples who are co-habiting but not in a marital relationship?  Huge!  I think it is part of the many details that couples who could otherwise be married typically overlook.  I’m talking here about opposite sex couples, because federal benefits only apply to them as long as the Defense of Marriage Act Defense of Marriage Act (DOMA, Pub.L. 104-199, 110 Stat. 2419, enacted September 21, 1996, 1 U.S.C. § 7 and 28 U.S.C. § 1738C) is in force – which may not be much longer. . .

So what’s the point I’m making here?  I recently published a book review in The Colorado Lawyer  of Professor Cynthia Grant Bowman’s 2010 Oxford University book “Unmarried Couples, Law and Public Policy.”  This book covers the marriage debate (cohabitation), but not the “marriage equality” (for same sex couples) debate.  With the decreasing number of people getting married, and divorces among folks over 50 going up considerably ,retirement planning and factoring in social security benefits are getting more complicated all the time!  The bigger issue that concerns me is for the unmarried couples who tend to underestimate the value of social security to financial stability in retirement years.

As Bowman points out in her book, cohabitation in the U.S. is problematic at best.  Unlike nearly all European countries, which have adopted some national laws  aimed at addressing the cohabitation phenomenon, the U.S. is still “on the fence” about some pretty basic issues.  What we have in this country, is a patchwork crazy quilt of local, sometimes statewide recognition of certain limited rights in particular states.  There is no standard for these rights, they are typically determined on a case-by-case basis, based on particular facts of each case brought to a court’s attention.  Cohabiting couples either have to forge their own agreements about important financial and legal considerations, or see what happens as a result of legal action.  There is no legal proceeding for “termination of cohabitation,” so the type of legal rights sought to be enforced really depends on the particular couple.

This can be a big problem, particularly for those vulnerable persons in a cohabiting relationship – who tend to be (but this is changing to some extent) women and children.  Bowman recommends providing legal remedies to cohabitants including:

(1) domestic partners who have been together two years or more and have a child together should be treated as though they were married;

(2) the ability to “opt out” contractually of these obligations should be easily available for couples not wishing to be treated as married; and

(3) a system for registration as domestic partners should be provided, accompanied by all the benefits and burdens of marriage unless the partners opt out with their own contractual arrangement delimiting their rights.

Bowman at 223.  I think as a country we might be some distance away  from providing such protections to cohabitants, so in the meantime it’s best to protect yourself by knowing what rights you have and what rights you don’t have when you are in a cohabiting relationship.  Bottom line is – don’t make assumptions based on your lifestyle.  Just because you feel like you’re married doesn’t mean the law won’t treat you like “legal strangers!”  Make sure you know what your future looks like if you are in an unmarried (cohabiting) relationship.

 ©Barbara Cashman, LLC   www.DenverElderLaw.org

Mistakes People Make with Medicaid and Long Term Care

  1. Thinking it’s too late to plan.

There is a lot of information about Medicaid  for long term care of the elderly – rules, eligibility,  etc. available to the public, (FAQs from Colorado Dept. Health Care Policy & Financing ) and many people suffer from information overload in this regard.  Sometimes this results in reacting to a situation without a plan, which can add to the stress of uncertainty.  People considering future Medicaid application are often in a downward health spiral that creates stress and anxiety for family members who are helping and providing for care.  This is a difficult mix!  Before you jump to conclusions about whether it’s too late or too early to start planning for Medicaid qualification – inform yourself.  It’s never too late to have a strategy – especially if you want to manage stress effectively during difficult times or the end stages of an elder loved one’s life.

2. Giving away assets too soon.

 Many of us hear from people who want to “avoid paying the nursing homes” for what is perceived to be overpriced health care.  The fact is, most long term care for elders is provided by family members on an unpaid basis.  Fewer people (as a percentage of the elder population) are living in nursing homes (or SNFs – short for skilled nursing facilities) but there is a point when the medical care needed to sustain a person may require placement at a SNF.  Placement in a SNF may be a cheaper alternative to home care for many frail elders and is often a necessity.  Medicaid is the national health care program for poor and low income Americans and is the safety net for long term care and Medicare covers less than 9% of SNF care.

3. Ignoring important safe harbors created by Congress.

This is some of the Medicaid fine print! Certain transfers are allowable without jeopardizing Medicaid eligibility. These include: transfers to disabled children, caretaker children, certain siblings and to a trust: for a disabled person under age 65; a transfer to a “pay-back” trust if under age 65; and a transfer to a pooled disability trust at any age.

4. Failing to take advantage of protections for the spouse of a nursing home resident.

Several protections are afforded the noninstitutionalized  “community spouse.” These protections include the purchase of an immediate annuity, petitioning for an increased community spouse resource allowance, and in some instances petitioning for an increased income allowance or refusing to cooperate with the nursing home spouse’s Medicaid application.

5. Applying for Medicaid too early or too late.

Doing either of these can result in a longer period of ineligibility in some instances, so it is important to try for “the golden mean” in terms of timing.

7. Confusing IRS tax rules with Medicaid rules.

The rules regarding income, estate and gift taxes are completely separate from Medicaid. While it is important to be mindful of the tax consequences of any type of asset planning, confusing these two different systems can lead to disaster.

8. Not getting expert help.

This is a complicated field that most people deal with only once in their lives. There is lots of money at stake, and the information can be overwhelming.  For many people, it makes sense from a peace of mind investment perspective to consult with persons who make their living guiding and counseling people about these issues.

©Barbara Cashman, LLC  www.DenverElderLaw.org

 

Legal and Financial Considerations for Nontraditional Relationships

 

 

This post is the first of a series about estate planning and unmarried couples.  By “unmarried couples,” I mean both heterosexual couples who choose not to marry and same sex couples whose unions or marriages are recognized by some states.

Being in a nontraditional relationship presents a number of challenges about which people need to be aware.  These challenges vary from state to state but tend to be uniform in the federal context (IRS, social security, veteran’s benefits).  The legal challenges stem from the fact that (unless there is marriage, civil union or in Colorado – a designated beneficiaries agreement) the couple are legal strangers to each other, with limited or to-be-determined rights regarding the other or their relationship.

Some financial difficulties include:

1. You have to file your taxes as head of your household, or as a single individual.

2. The state you live in may not provide a divorce-like (palimony or settlement) procedure that gives you your equitable share of assets.

3. You and your partner do not get each other’s Social Security benefits.

4. You may have to sell your house to get long term care benefits under Medicaid. (This is changing, read  this for more information.)

5. You must designate your partner as the person to make your decisions if that is what you would like to see happen (by using a medical or financial power of attorney). Otherwise, the state you live in may default to a blood relative to make those decisions.  See this news release from the CMS website regarding Medicare’s enforcement of equal visitation.

6. You will want to carefully consider creating a will to get around your state’s intestacy laws in the event they do not recognize your union.  Keep in mind that Colorado is one of ten states that recognizes common law marriage, and unmarried couples can execute a designated beneficiaries agreement

7. You are not eligible to receive the transfer of your partner’s exemption like married couples are.

For more information about the financial difficulties, check out Erik Carter’s article “In a Nontraditional Relationship? Beware These 7 Financial Pitfalls,” in Forbes.

The lack of legal and financial protections apply to same sex couples along with unmarried couples who could otherwise get married but have chosen not to get married.  Keep in mind that your relationship may seem like a marital one, but just because you behave the same way as a married couple, the law will not treat your relationship with as a marital relationship.  It’s best to know these things up front and not be surprised by them!

Denver’s Senior Law Day is Coming Soon!

The 2012 Senior Law Day will be held in Denver on Saturday, July 28, 2012 from 7:00 a.m. to 1:00 p.m. at the Denver Merchandise Mart.  This annual event is put on by the Colorado Bar Association (CBA) and is co-sponsored by the Elder Law and Trusts & Estates Sections of the CBA, along with CBA Continuing Legal Education.

You can register for the Denver Senior Law day here.

This annual educational seminar presents a number of diverse programs relevant for seniors in Colorado.   Attendees will get important and useful information on many issues facing our growing senior citizen population. If you are a senior, an adult child with a senior parent, or a caregiver, this is one day you cannot afford to miss!

Workshop topics include:

•             Aging in Place – Maintaining Your Independence at Home

•             Adult Protection and Elder Abuse

•             Assisted Living and Nursing Home Issues

•             Avoiding Court and the Legal System:  Mediation and Conflict Resolution

•             Consumer and Investment Fraud Prevention

•             Dealing with Trusts & Trustees

•             DNR Orders, Advance Directives, and End of Life Issues

•             Estate Planning: Wills, Trusts & Your Property

•             Disposition of Final Remains

•             Hanging Up the Car Keys for Good

•             Hospice, Palliative Care, and Other End of Life Issues

•             Illness and Death of a Significant Other

•             Lifelong Learning and the Aging Brain

•             Planning For Your Pets

•             Powers of Attorney , Guardianship & Conservatorship

•             Long-Term Care Insurance

•             Medicaid

•             Medicare 101

•             Trust Planning for Individuals with Disabilities on Public Benefits

•             Reverse Mortgages

•             Social Security

•             Taking Care of Your Pets and Pets Taking Care of You

•             The Basics: Memory Loss, Dementia and Alzheimer’s

•             VA Benefits

•             What to Do When Someone Dies

•             The Village Movement and Your Community: Neighbors Helping Neighbors to Age in Place

 

Like many of my estate and elder law attorney colleagues, I am proud to be a legal sponsor of this worthwhile event.  If you can’t attend the Denver Senior Law Day, there are other opportunities:

In Boulder County (Longmont) on Saturday, August 11- register here

In Larimer County (Fort Collins) on Saturday, August 11- register here

If you can’t make it to a Senior Law Day but are interested in looking at the 2012 Senior Law Handbook, chock full of 33 Chapters (many on new topics including . . . Facebook!) click here

Don’t forget that the CBA website at www.cobar.org has lots of helpful information for the public. Check it out!

 

Gratitude and Living Your Legacy Now

photo by snowpeak

I guess I would say, as I have before in a blogpost tribute to a friend who died not long ago  that death can be a very powerful teacher for the rest of us who are still living.  What do our lives mean?  Does meaning matter in our lives?  Each of us answers that question in our own way.  I would like to defer to an expert here – Rabbi Abraham Joshua Heschel l who discusses this in the article “What Death Should Teach Us About Life and Living.”  One of the themes raised in Rabbi Heschel’s article is looking at death as gratitude for existence – how do we cultivate “heaven on earth?” He suggests that

the meaning of existence is to reconcile liberty with service, the passing with the lasting, to weave the threads of temporality into the fabric of eternity.  The deepest wisdom man can attain is to know that his destiny is to aid, to serve. We have to conquer in order to succumb; we have to acquire in order to give away; we have to triumph in order to be overwhelmed. Man has to understand in order to believe, to know in order to accept. The aspiration is to obtain; the perfection is to dispense. This is the meaning of death: the ultimate self-dedication to the divine. Death so understood will not be distorted by the craving for immortality, for this act of giving away is reciprocity on man’s part for God’s gift of life. For the pious man it is a privilege to die.

Now that we are all here, in the present – what does “today” mean to you? This Ted video is breathtaking, it has Louie Schwartzberg’s  time lapse photography of flowers, clouds and a story as well.  The story is about how we answer the question: What is a good day? His suggestion is to open your heart to all the gifts of life that this world is right now, go out and see them, let the gifts flow through you and bless others with your smile of gratitude and the presence of your open heart.  Watch it here 

I thank Joan Therese for sending this link to me.  The most exquisite pearl from this necklace?  Learn to respond as if today was both the first day and the very last day of your life.  Willa Cather’s quote comes to mind here: “I shall not die of a cold.  I shall die of having lived.”  If we die of having lived, can we not choose what to value, what to hold dear? An Albert Schweitzer quote comes to mind: “the tragedy of life is what dies inside a man while he lives.”

So  – how is it that we can live now, so that when our time comes (or we are with our dear ones and it is their time to leave) we can gracefully look back and say our farewells?  “We’re all here to do what we’re all here to do.”  The Matrix Reloaded 2003.  Each of us must discover that for ourselves.  This usually isn’t easy and it can take some time, but don’t wait until retirement to start this exercise – start small and do a little bit every day.  A little bit of what exactly?

Gratitude

Did you know that gratitude is the only “get rich quick scheme that really works?”  That’s a quote of Ben Stein’s from the book “Thanks” by Robert Emmons.  This gratitude thing is also a two-way street, according to Zig Ziglar: “the more you recognize and express gratitude for the things you have, the more things you will have to express gratitude for.”

And speaking of being grateful for each day, here is a beautiful video about Lou Cunningham about her experience with coming to grips with her impending death and her experience with hospice. Watch it here   I particularly liked her portrayal of hospice nurses and support staff as midwives to the dying.  This is a term I have used before and I think it is very appropriate.  My favorite quote that she shared was from Ralph Waldo Emerson “all I have seen teaches me to trust the creator for all I have not seen.”  Acceptance of how things are often involves trust – trusting in the face of our uncertain future.

I couldn’t write this kind of a post without quoting Dr.Seuss!  “Don’t cry because it’s over, smile because it happened.”

Kindness

This issue of the Health Care Chaplaincy e-newsletter is about compassionate end of life care for all patients and features bioethicist Stephen Post, Ph.D., author of The Hidden Gifts of Helping: How the Power of Giving, Compassion, and Hope Can Get Us Through Hard Times,   which is about the transformative power of doing good (transformative for the doer).  I wouldn’t want to leave out another favorite quote about gratitude – G.K. Chesterton’s “act with kindness, but do not expect gratitude.”

Being With Nature

Along the theme of being in nature and cultivating the sense of wonder and gratitude as Schwartzberg’s Ted video, I found this recent article in Scientific American intriguing “How Hospital Gardens Help Patients Heal

I’ll add more to this list in coming posts. . .  So if you really want to get hands-on with this kind of thing, like I suggested in an earlier post Write Your Own Obituary,  you may want to read Carolyn McClanahan’s 3/23/12 article in Forbes Magazine, the last of a four part series on end of life planning.    What she has to say about three funerals she went to in a short space of time is instructive: if you have an illness which allows you to plan for your funeral and service or celebration of life following your passing, do the planning to ensure it is something that will be part of the final chapter, a closing to your book of life, that only you can write.  May we all be able to live our lives “on purpose” and find the courage to ask, to be, and to reach out into community.

©Barbara Cashman, LLC  www.DenverElderLaw.org

Can I Promote Family Harmony With My Estate Plan?

The short answer to this question is of course yes, but it may take some careful thought.   For most of us, our family is the most important thing in our lives – the most valuable asset, so what can be done to protect relationships in an estate plan?  Sometimes conflict can be prevented through merely providing clear instructions to the right people, and in other contexts – it is much more complicated than that.  We have come a long way since the “in terrorem” or “no contest” clause was a standard feature of wills, and many practitioners are of the opinion that the “no contest” clause – which purports to penalizes a challenger of a will – leaves the testator (person writing the will) with a false sense of security that the clause will prevent a lawsuit.

So what if your family perhaps doesn’t resemble the 1950’s TV family?  Most families today certainly don’t.   The AARP Magazine recently (April/May 2012) had an article about parent-child estrangements.    It features an interview with California psychologist Joshua Coleman, Ph.D. who recommends the following tips for healing a serious estrangement with your adult child:

  1. Own up to the conflict and take responsibility for mistakes you have made.
  2. Accept a contrary view and don’t try to prove them wrong (use empathic listening).
  3. Don’t try to make your child feel sorry for what they’ve done, this is likely to escalate resentment.
  4. Hear them out – ask questions and really listen attentively, not defensively.
  5. Don’t give up too soon, you may need to reach out long before the healing can begin.
  6. Avoid giving criticism or unsolicited advice.

Each of us is free to walk away from difficult or unfulfilling relationships, the article observes, but it also poses a more complicated follow-up question – what are we sacrificing for that freedom to walk away?

As parents live longer, adult children may struggle with the how and when of becoming an adult in their relationship with a parent, and for some that may never happen.  Many of our sibling relationships may get stuck in a particular time and not progress beyond into the present.  If siblings presuppose equal shares, then it’s a good idea to think about fairly typical scenarios in today’s world: what if one sibling is well off and another is struggling financially? How do you treat an adult child who has been the primary caregiver for a frail or ailing parent?  The best thing to start with, as Jane Bryant Quinn observed – is a conversation with children ahead of time about what you’re doing and why.  She quotes a New Hampshire estate planner who states “the greatest mistake I’ve seen in my practice comes when children have neither been apprised of a parent’s intentions nor been invited to participate in the decision-making process.”  Clients are of course free to not speak to their children, and some of my colleagues advise against it and tend to value more highly the privacy interest of the client making the will.  This is fine, but people making an estate plan need to know the potential cost for such silence.

Inheritance anxiety can also escalate where a surviving parent remarries.  Calling this a “blended family,” when the children are all adults may be a bit of a stretch.   Keep in mind that the assumption of inheritance among children may complicate their expectation of money with love, so meaningful communication (in whichever form works for the client) is strongly advised.

Finally, I’ll refer to a June 10, 2012, Denver Post article by Kirk Mitchell  which was about a suspected double murder-suicide in southwestern Colorado that may have been committed by a very resentful son who was not left ranch property from his mother.  For better or for worse, children expect inherit their parents’ property and siblings expect equal distribution.  There are many ways to soften the sting of unequal distribution.

It’s best to consider some basic aspects of human nature when you’re making an estate plan, along with the value of family relationships.  Another good idea is to address personal property – items that may have high emotional value like inherited jewelry and other personal items, things with sentimental value – in a separate memorandum (this is a nice feature of Colorado law) referred to in the will.  I often advise clients to share their stories about such items with their family members while they are still living, and in some circumstances –  if the client is so inclined – to give away these items to the intended recipients.  The bottom line – it is best to try and live in and honor those treasured relationships now so they remain the biggest part of your legacy.

©Barbara Cashman, LLC  www.DenverElderLaw.org