Welcome to My Blog

I have a new logo, and I’m pleased to say that the day I purchased it and printed it out, I was able to ask a client what he thought about it, and he immediately recognized it as a tree and made the “tree of life” connection. Yes, that’s the tree I’m talking about! My logo is a tree that also looks like a person who is embracing a community. I think this is particularly relevant to what I do because I work to help my clients put together a holistic plan for their future – one that is consistent with the values a person has lived by and which honors the relationships with family and community members. Holistic planning can also involve peacemaking. The tree of life connection is especially meaningful to me because it symbolizes the transitory nature of our lives and the relationships, in the context of certain unchanging constants. The tree of life symbolizes a simple message of unity, that we are all part of a community and it is represented in a number of different cultures, myths, faiths and traditions across time and geography. It is an important symbol for my practice philosophy because I seek to assist my clients in identifying ways they can maximize the support and connections they need from others during their lives and so they can transmit their legacy after they are gone.

I mention the Tree of Life specifically on my blog page because my blog is the place where the diverse but related interests will converge. We have never before had so many 80 and 90 year-olds on the face of the earth. What are the implications for law, ethics, medicine, philosophy? These are all appropriate aspects of identifying a strategy for clients because a sound plan must take into account the “ripple effect” of individual actions that relate to financial, emotional, medical and physical considerations that are often relevant in the legal context.

 

The Grail Question Continued – What Ails Thee?

denver elder mediation

A Garden Near Assisi

 

[Note – this post was published on August 19, but it didn’t make it into my migration to a new server. . . ]

This post is a continuation of my previous post about elder and probate mediation and obstacle identification.  The first grail question I examined was “what ails thee?” and it is one which I would like to explore in depth a bit more in this post.  What I am looking at in particular in this post is the larger function of seeing that is implied in the question above.  What is it that we can see about another, understand about the other’s situation from seeing them and encountering them in a question such as this?

The question is simple and seemingly straightforward, but it certainly goes beyond the obvious and the superficial – but that begs the question.  What is seeing, what is our ability to use our eyes, our sightedness, to encounter another person – especially one in distress?  Sometimes, in this culture that distrusts anything that can’t be readily explained or measured or understood at some level, we mistake the act of using our eyes for the ability to see.  What I mean by using our eyes is the sensory act of using our eyes, as sensory inputs to inform our understanding of the world.  What often happens, on the “did you see that?” transactional level of human communication is the confusion of our visual sense of seeing for its sensory utility for its own sake, as if the sense was something generic, that anyone with eyes could see in the same manner.  If this sounds farfetched, I will use the example of biomechanics, a popular idea of how the human “machine” works.  Certainly, if we are all machines then our standard issue equipment functions in similar ways, right?  Well, I’m afraid this is the dead end of the reductionists, and I’ve never been tempted to travel down that path.

So this sense of seeing, or rather more appropriately – the use of the eyes for navigating our environment, often amounts to an act of seeing which serves only to separate us from each other and our world.  This is the seeing described above, that which is focused on the material, visible and the “objective” if you will.  This is what is normally understood as the typical and usual way of seeing in our everyday world.  But this is not so for all of us. There are other ways of seeing in addition to or beyond the use of the eyes.

Here I think of the late teacher, author and a leader of the French Resistance, Jacques Lusseyran and I thank Mark Patrick for telling me about his autobiography, And There Was Light.  Lusseyran was left without sight in either of his eyes as the result of an accident at school.  His autobiography tells the story of his work as a leader of the resistance in Paris, sought out because he was blind, as well as his time spent at Buchenwald.  For my purposes here, in the context of the first grail question, I am looking at his posthumously published work Against the Pollution of the I (2006: Morning Light Press).  In the chapter entitled “The Blind in Society” he writes: “Blindness has shown me a space other than the physical one, which only serves to separate me from them and them from me.  This is the space where the stirrings of the soul and the spirit come into being . . . Thanks to blindness I learned to read many signs that came to me from others, and that usually escape the notice of the seeing.”  Against the Pollution of the I, at 46-47.  I find this observation most refreshing in the way it challenges the superficial nature of seeing things and mistaking them for what they appear to be on the surface.  It also leads to a conclusion that many of us “sighted” persons are lazy in that we are accustomed to relying on our sight to inform us of certain things in a certain manner and we mistake this surface reality for “all there is.”

Lusseyran’s questioning of the conventional utility of the sense of sight goes further.  In another chapter entitled “Blindness, A New Seeing of the World,” he refers to sight as a very useful tool and those who are deprived of it as suffering a heavy loss.  But he looks at the senses in a holistic and integrating way, noting that the loss of one sense can allow for the development of another.  Than he makes another observation: “But now we are faced with a great difficulty, for seeing is a superficial sense.”  Id. At 54.  He astutely observes that while the eyes can help us immensely, we should not mistake the tool of seeing with the eyes for its utility alone.  He goes so far as to state that without a willingness to go beyond the superficiality of sight, the seeing beneath or beyond  the outer surface, no true cognition is possible because we are locked into insisting that the tool itself is the purpose of sight.  The beautiful metaphor he uses to illustrate this inadequacy of limiting sight and seeing to the act of visual collection of information is the act of naming, knowing and thereby seemingly knowing the unknowable because . . .  we have seen it.  He identifies this rightly as idol worship.  Id. At 59.

What is our sight, our willingness to see another?   What is our ability to know another person for?  It strikes me that a function of seeing must be, as Lusseyran observes, the ability to clear away the noise, debris and clutter from our minds so that we can truly think about who we see and what they mean to us.  “What ails thee?” can be a mirror for our own suffering and inadequacy to see ourselves reflected in another person.

There is more to us than our visible exterior, our “clay.”  The late John O’Donohue has written beautiful poetry which speaks about our clay.  Another writer has observed this about our clay:

. . .   we are shaped and molded by what we once were and what we will become.  As the ultimate spiritual treasure, the spark of knowledge that inspired human faith becomes an internalized knowledge that will erase temporal history and return us intact to the primordial self.

John Herlihy, “Profile of Unfinished Man” in Psychology and the Perennial Philosophy, at 122, Samuel B. Sotillos, ed. (2013: World Wisdom).

This examination of what constitutes “seeing” in the context of the first grail question just might be followed by a similar pondering of the second question. . . .

©Barbara Cashman  2015   www.DenverElderLaw.org

 

The Grail of Elder and Probate Mediation: Identifying Obstacles

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Ancient Chalice Painting

I have included this painting of a chalice because of its powerful symbolism.  I will put aside the well-recognized religious symbolism (especially among the Abrahamic religions “of the book”) and employ its metaphorical meaning for my purposes here:

A thing that is being earnestly pursued or sought after

The word appears to originate in the Medieval Latin gradalis, meaning “dish” and our English term comes from the Old French graal.  Thinking of the term as a dish, and considering the Latin from which it originates, it’s not a stretch to consider it as in the courses of a meal (our stages of life).  If we think of our life as a long meal, and the dish, bowl or cup as what we have come to think of in our mind as our life and perhaps even its meaning or significance, the grail can serve as a good metaphor for pondering what it is we think or feel we are lacking in this life, as the grail of what has been sought but not yet achieved or attained.

In the context of elder and probate mediation, this grail, this missing part of an elder’s long life or a family’s story, can be harmonious or respectful family relationships.  In my experience, the single biggest hurdle to making the space for a productive engagement to have a conversation about family conflict lies in identifying the sources of conflict.  The conflict may have been careening out of control for years but it has finally crashed, landed somewhere and gotten stuck as a result of a variety of circumstances.  What to do now?

Well, it depends on who is asking and who is willing to “own” the conflict.  There are invariably a number of different perspectives on what went wrong and how to “fix it.” This is the often insurmountable threshold to getting close to any room in which a grail might be found (to use a building metaphor).

Family members typically operate under ground rules for engagement that were established in childhood and people often carry these unspoken rules and assumptions forward into the future.  In fact, this informs many of us about our “life story” and we adopt it as part of our identity, for better or for worse.  So how does that play out in the context of an elder’s health crisis or end of life scenario, when “the chickens come home to roost?”

I have previously blogged about sources of such conflict here, as well as what to look for in a mediator, but I don’t believe I have ever addressed the topic of getting past the “hand wringing” to proceed to mediation.  It strikes me as odd that I haven’t done this before because I have probably had a dozen such conversations over the years with potential clients about what is involved in convening an elder mediation.  This can be distinguished from probate mediation, where there is already some underlying legal proceeding which has at least crudely identified what is at stake and in which a judge may have ordered or strongly suggested to disputing parties that resolution of all or some of the issues should be done in a mediation.  I have been engaged as a mediator in several of these types of disputes (guardianship, estate administration, trust administration).

Speaking is usually a function of thinking, but our chosen words, what they say and convey to others has a multi-layered meaning in the elder and family conflict context.  The grail story, the myth of Perceval or Parsifal, depending on the land or time period of recounting of the story, is essentially about speaking as a function of thinking and interacting with the world and others.  I find it particularly useful in this context of elder mediation and family disputes involving an elder.  If you would like to read more, consider The Speech of the Grail, by Linda Sussman (1995: Lindisfarne Books).

There are two important questions asked by the protagonist of the story.  Both questions are asked from a position of freedom, not bondage flowing from a sense of obligation.  The first question “what ails thee?” is about the power of observation, from an action of paying attention to another’s plight from different perspectives beyond one’s owned limited and perhaps comfortable perspective.    The second question, “how can I help?” recognized the relationship involved and might also be phrased “how can I help myself in helping you?”  This is the initiation of the thinking/habitual speech into the realm of the heart-space.  This is true listening that is usually very difficult, uncomfortable, sometimes painful and often cannot be controlled, leaving us feeling vulnerable.

This posing of these two grail questions is the hurdle, the threshold that prevents most individuals and families from getting to productive conversation about a crisis stemming from the elder family member’s life.  Here is a poem from the eighth century poet Rabia al-Basri about the heart:

In love, nothing exists between heart and heart.

Speech is born out of longing,

True description from the real taste.

The one who tastes, knows;

The one who explains, lies.

How can you describe the true form of Something

In whose presence you are blotted out?

And in whose being you still exist?

And who lives as a sign for your journey?

 

I will close with a question she raises: Can we muster the strength to be signs for the other’s journey?

©Barbara Cashman  2015   www.DenverElderLaw.org

 

The Revised Uniform Fiduciary Access to Digital Assets Act

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Siennese Door

This is an important development regarding the Uniform Law Commission’s Uniform Fiduciary Access to Digital Assets Act (UFADAA).  I learned that there is a new and revised version of the uniform law which has in the last few days been approved by the ULC.  It is known as the Revised Uniform Fiduciary Access to Digital Assets Act (2015).  In my last post on this topic in May, I described the short-lived history of HB 15-1189, the UFADAA in the Colorado legislature.

In June, yours truly was interviewed, along with Connie Smith of Fairfield & Woods, for the article “Assembling the Digital Legacy” which appeared in Law Week Colorado.  The article, written by Doug Chartier (sorry, no link as it is paid subscription only), described the ever changing landscape of identifying and managing digital assets for the living (as agent, conservator or trustee) or for the deceased (as personal representative).  The article reads a bit like an obituary for the UFADAA, which was enthusiastically presented in nearly two dozen state legislatures but met stiff opposition from diverse groups including (in Colorado) the Colorado Bankers Association and the ACLU.  Only one state has adopted the UFADAA so far and in most states where the legislation was introduced the UFADAA has already been rejected. This over what is broadly termed as “third party privacy concerns.”  The basic concern would be, to give one example, for those with whom the digital asset owner would have communicated – say via email, and whose private and protected information would be disclosed to a fiduciary acting on behalf of another (as defined in the UFADAA, but generally an agent under a POA, a personal representative of an estate and so forth) without the third party’s knowledge or consent.  It isn’t just about reading mail anymore, or emails for that matter!

Here’s a recent article in Forbes magazine about how forgetting to make plans about digital assets like social media can create post-mortem lawsuits.  One of the spot-on observations made in the article was about the difficulties in transferring digital assets and its potential to create unplanned business succession challenges as well as ongoing estate planning difficulties.  Getting back to the Law Week article, both Connie Smith and I agreed that online services for storage of passwords, usernames and other credentials for online accounts (digital assets, broadly defined) are problematic because of the concentration of personal data.  I give my estate planning clients an organizational “letter of instruction” which has a page for these online accounts and other digital assets. At this time I think the best way to maintain this information is in paper format, which can be easily updated on a personal computer and printed out periodically.  And no, you shouldn’t call the document “my online accounts and how to access them,” but maybe come up with something more creative!

In the meantime, don’t forget about making plans for those digital assets.  Here’s a helpful article from the American Bar Association on this topic.  Unfortunately, I wasn’t able to link to the revised version of the UFADAA on the Uniform Law Commisioner’s website – it does not yet appear to be available there.  I have a word version of the revised UFADAA, but haven’t had the chance to read it while comparing its previous version.  I’m sure that will be a topic of a future blog post. . . . !

©Barbara Cashman  2015   www.DenverElderLaw.org

The Continuing Adventures of the Psychopomp: Grief As Psychopomp

Natural Beauty

Natural Beauty

This post is dedicated to my dear cousin, who recently lost his beloved wife of forty years.

Yes, this is another installment in my series, but it wasn’t quite planned that way. . . .   After traveling to the funeral out of town, I thought more about this psychopomp topic and thought about the other side of death, what the mourners, those grieving face in going on without their loved one.  Life as they know it, as my cousin recently observed “is over.” What then remains is a future that requires the survivors to reimagine their lives, the mourners must now construct their lives without the active participation of the one they love.  Here it strikes me that grief is also a doorway, a threshold and . . . .a psychopomp in some form because it will take us to that new world, often an unimagined life.  Here is where the grief, the being and doing of it – ready or not! – does transport us to a new and unfamiliar terrain of our lives, a new way of living.

Whether we believe in an afterlife is often beside the point for many of us – grief invites us to feel and to be with it and to imagine what our life could or might look like without that person because, while we are imagining, we can’t believe or disbelieve. It strikes me that the loss, the sense of shock that often accompanies a death of a loved one that often causes a sense that things are not quite real or even surreal, occurs in both the event itself as well as our reaction to it.

So grief too, is often itself a kind of death, a death of the known and familiar existence, a death of identity relative to the loved one.  I wonder – might this prepare us (the survivors, the mourners) somehow also for our own eventual demise?   This makes me think of some of the emotional responses to grieving, the activity of grieving and how we feel it in our bodies.  Is grief capable in some way of turning us inside out?  The death of the loved one causes some kind of corresponding death in us as well.  We simply cannot go on as before.  But what was the life before, and how did we think of it and experience it?   I think of Tom Cheetham’s book: All the World an Icon: Henry Corbin and the Angelic Function of Beings (North Atlantic: 2012) and his observation:

  When we can give up a life lived in pursuit of “objective Truth,” then the world fills out, comes alive and comes toward us in its freedom . . . “interiorization” is . . .  a matter of entering, passing into the interior and, in passing into the interior of finding oneself, paradoxically outside. . . “ 

Cheetham at 185.

The movement here of grief, away from life as it was previously known (I don’t think it’s a huge stretch to liken it to the “objective Truth” reference above), can be precipitated by the “inside-out” or “upside-down” feeling of the lives after profound loss.  In addition, our lives may have an aspect of feeling that is immanent or transcendent, and perhaps both at different times.  I will contrast them here:

          Immanent – is defined as being within the limits of possible knowledge, inherent, remaining within; and

          Transcendent – going beyond the limits of ordinary experience, greater than what is usual.

We typically focus on the transcendent here, as in the moving beyond, toward considering the possibility – because we are left with no real alternative – that the deceased is gone but there is still meaning in their existence, that there is some felt meaning beyond us in our physical presence.

Here, the invitation, the movement into grief can be a means of poiesis.  Poiesis means “to make” in ancient Greek.  This kind of work reconciles our imaginal activity (outside of belief, it is by nature supra-rational) with the stuff and matter of our existence, and this is done within the construct of time.  And yes, I could go off on a tangent about poiesis, but I will resist the temptation.  This kind of work, it strikes me, is a destruction of the idol of time (akin to that “objective Truth” mentioned above) as we knew it, a life as we expected it to be.  I have previously referred to the work of Massimo Cacciari, the Italian philosopher and politician who wrote:

       The greatest idolatry is the cult of the has-been, of the irredeemable it-was.  Against it, the

living raise their cry-song to the Living.  Only at this point – in the moment of song – can they truly

call themselves living; prior to this they were a succession of moments destined to death, born to die.

The Necessary Angel, at 51 (SUNY Press: 1994)(M. Vatter, transl.)

Cacciari was not writing about grief in that quote, but it struck me that in his term “chronolatry” there is the possibility of grief, of grieving for what was and never will be again, which is also that which allows us to fully feel the present and its fullness or emptiness  – whether we want to feel it, or not.  And so, the “idol” or fixed idea of the life that was known, that was lived with the person now deceased, is not broken or destroyed but rather it is transcended to a new meaning, a bigger one necessitated by that deceased person no longer actively participating (or seeming to participate) in the mourner’s life.  I am not saying that this is what grief is, while I find all the writings about grief very helpful in many respects, I also find them constraining and unhelpful to the extent they attempt to identify some “grief process” which all of us must “go through” in order to come out the other side or to get on with our lives.  Grief is simply too big to be left to the psychologists alone to develop such a typology or taxonomy!

Grief as a psychopomp here is a threshold, an invitation to cross over from that life that was – the idol that is only a physical shell, to arrive at an icon that invites a re-imagining of new life with a bigger (or smaller) meaning, which is often one that moves into the meaning of transcending.  Beyond the shell of the idol, the icon glows with possibility, it represent a threshold where the can be an unfolding into the future.  Grief here, is the invitation, the psychopomp that is uninvited and unfamiliar – yet the one who cannot be ignored.  What is left is somehow beyond our reach, but imaginable and comes to us, moves toward us even in the depth of our despair.

 ©Barbara Cashman  2015   www.DenverElderLaw.org

 

The Continuing Adventures of the Psychopomp: What is the Vocation of a Psychopomp?

Inside the Rocca Majore

Inside the Rocca Maggiore

This is the first of a series of posts about our death-denying and death-phobic culture and the “usefulness” of a psychopomp as a means of understanding the meaning behind the denial and the denial of meaning.  If using the psychopomp seems like an odd choice for such a journey, please bear with me and know that these posts will be concerned with the meaning that is behind the fear and the denial.

To review briefly, a psychopomp is a conductor or guide of the dead to the world beyond this place.  In this respect, the purpose of the psychopomp is to accompany and sometimes convince a person who has died to let go of the familiar of this world – a person’s identity, expectations, possessions (physical and non-physical), status and many other types of “evidence” of our existence here in the life one has grown accustomed to living.  Just as most of us can remember being afraid of the dark, many of us are also afraid of the light.

I would begin with the observation that questions about the meaning of life and the significance of death often seem strange and foreign to us.  It strikes me that this is because these questions are part of the human condition but somehow – and quite effectively, according to our post-modern reductionist mainstream thinking, obsessed with the material world as the only “real world” – we have rejected such questions as impractical navel gazing.  This notwithstanding the fact that for all of human history, the meaning of life and its significance, have been among the principal problems of philosophy.  Only in our recent “scientific” post-modern era, have these questions and their meaning been declared to be meaningless.  I think of Dostoevsky here:

Man needs the unfathomable and the infinite just as much as he does the small planet which he inhabits.

Denial of death is essentially the denial of any meaning in death.  What is the consequential impact of such denial on any meaning of life?  Can the psychopomp assist here or is s/he merely an enabler of our fear of death?  Is death denial different from a belief that death is not “real?”  What if it is all part of the same mish-mashy stew – as observed by one author that “the affirmation that death is not real, that man has a soul and that this is immortal, arises out of a deep need to deny personal destruction, a need which is not a psychological instinct but is determined by culture, by cooperation and by the growth of human sentiments.” Theodosius Dobzhansky, The Biology of Ultimate Concern, at 78 (1967).

I think there is an important distinction to be made here between first, the  death denial as  denial of the fear of the unknown, the incapacity of our post-modern mindset to come to grips with reality beyond the objective and measurable and therefore to dismiss its existence and any attendant meaning, to basically pretend it isn’t there.  This is distinguished from the second kind of death denial in which the psychopomp may, if you will, play a role.  This kind of death denial is qualitatively different as it lends meaning to death as a form of the unknown, giving significance and substance to the mysterious transitions of this life – birth, death and all the transformations of self in-between.  Death here in the second type of fear/anxiety is simply part of life – accepted or not, it happens to all of us.  But what of the meaning of our dying?  Well, this is where I rely on psychopomp.

I think that one of the biggest problems we face, whether it is in the grips of illness, aging, disability or dying – is the meaning of our living and being here.  I propose death is like a mirror or our transitory and impermanent existence in any particular form.  Death denial is different from the fear of death (thanatophobia), and it in turn is distinguished from necrophobia – the fear of the dead.  The former is really a kind of anxiety more than it is a fear.  As a kind of fear, it is specifically a fear of the unknown, as none of us knows the manner of our death.  What does the fear mean in itself and what does the existence of the fear mean?

I like what Vassily Kandinsky wrote about white and black:

[w]hite,although often considered as no color (a theory largely due to the Impressionists, who saw no white in nature as a symbol of a world from which all color as a definite attribute has disappeared) . . . This world is too far above us for its harmony to touch our souls.  A great silence, like an impenetrable wall, shroud its life from our understanding.  White, therefore, has this harmony of silence . . . like many pauses in music that break temporarily the melody.  It is not a dead silence, but one pregnant with possibilities.

A totally dead silence, on the other hand, a silence of no possibilities, has the inner harmony of black. . . Black is something burnt out, like the ashes of a funeral pyre, something motionless like a corpse.  The silence of black is the silence of death. . . . Not without reason is white taken as a symbolizing joy and d spotless purity, and black grief and death.

V. Kandinsky, Concerning the Spiritual in Art, (M.T.H. Sadler, transl). at 48-49 (2013).

We navigate the world of the unknown every morning when we arise from sleep.  But yet, the unknown of death and dying seem insurmountable to many of us.  What if we draw on something familiar for our psychopomp, say . . .  the family dog?  In her book “Women Who Run With the Wolves,” Clarissa Pinkola-Estes observed that “[t]his little dog (in the Manawee saga) as psychopomp represents the instinctive psyche.  It hears and sees differently than a human.  It travels to levels the ego would never think of by itself.  It hears words and instructions that the ego cannot hear.  And it follows what it hears.”  C. Pinkola-Estes, Women Who Run With the Wolves at 131 (1992).

I will conclude this introduction to the series on the work of the psychopomp here with something hopeful perhaps – that the fear of death is essentially the fear of life, that our fears of being separate and distinct from others and our human need to belong derive meaning only from engaging in relationship.  That relationship can make possible the broader and deeper meaning and give meaningful context to the mysterious purpose of our existence.  I like Richard Rohr’s description of “life as mutual participation” (from his book “Eager to Love” at 234 (2014)) and I wonder why this participation would cease with one’s physical existence.  But that’s in another post. . . . !

©Barbara Cashman  2015   www.DenverElderLaw.org

 

 

 

Funeral planning, disposition of remains and the importance of “The Conversation”

centennial probate lawyer

Italian Marble

Last Sunday I presented to a lively and engaged group at a local church on the topic of health care self-determination.  This post is a bit of a follow-up to that conversation on the enduring topic that “it is never too soon to have ‘The Conversation.’”  The best approach to getting these matters in order is to have a conversation with loved ones about wishes, which are then solidified by the documentation.  The documents are often meaningless if people don’t know of their existence or the context for the expressed wishes!

These topics seem relatively straightforward, right?  Well, I got the idea for writing this post initially as a result of a discussion that took place on one of my listserves.  It is one of those situations where “the law” and how things work out there in the outside world don’t quite sync.  The question concerned a situation in which decedent stated her wishes to her child that she wanted to be cremated, but the mortuary told adult child that, without anything in writing from the decedent stating her wish to be cremated, they would need to contact and get approval from decedent’s other children to get their joint approval for cremation.  It would seem that the funeral director wanted to follow the old law “next of kin” even though there was a statute in place that covered this issue. . . .  There was a good discussion about this topic and so I thought it was worth writing about.

Defining Death

       You might think this is a straightforward proposition, but it is not, as I have blogged about previously in a post about “brain death.”  The only legal and medical definition of death in our country came about as a result of a uniform law – the Uniform Declaration of Death Act (UDDA).  It was drafted in 1981 by a President’s Commission to study brain death and was approved by both the American Medical Association (AMA) and the American Bar Association (ABA) shortly after its publication.   The UDDA offers two definitions for a legal declaration of death: (1) the irreversible cessation of circulatory and respiratory functions; or (2) the irreversible cessation of all functions of the entire brain, including the brain stem.   The most common type of death is the first one and you can see how the second definition courts controversy, especially given advances in neuroscience and further advances in measuring the occurrence and quality of brain activity.  States have adopted the UDDA, many with their own adaptations of the second definition.  In Colorado, C.R.S. § 12-36-136 provides:

(1) An individual is dead if:

(a) He has sustained irreversible cessation of circulatory and respiratory functions; or

(b) He has sustained irreversible cessation of all functions of the entire brain,

including the brain stem.

(2) A determination of death under this section shall be in accordance with accepted

medical standards.

Death in Colorado encompasses the entire brain, not simply some aspect of brain function.  But the treatment of brain death is inconsistent and some argue that the neocortical death (part of the brain believed to contribute to consciousness) is more appropriate than “whole brain” death and  may better address neurodegenerative disorders that can lead to steep functional decline, particularly in the elderly.  This is an evolving determination, as addressed in (2) above “accepted medical standards.”

So once someone is dead, there is the question of what happens with the body, this is where the Disposition of Last Remains can be helpful information.  The declaration of last remains, addressed in our statutes at Colo. Rev. Stat. §15-19-103 et seq., covers several aspects of the disposition of a corpse.  The context for the statute does in some important aspects address the three major historical funerary customs in our country: (1) the rituals performed for a dead person, which can include a visitation or wake; (2) a funeral or memorial service; and (3) the burial service or inurnment.  No, cryogenic preservation is not covered in the tradition surrounding death and disposition of a body, nor is biological continuity – but assistive reproductive technology legislation covers several aspects of what we might leave behind and in Colorado at least, has room for growth.

The statute contains a form for the declaration of disposition of last remains at C.R.S. 15-19-107, and it includes some very important choices, including:  burial, cremation, entombment or “other;” a disposition as determined by a named designee; and requests concerning a funeral, memorial service and other special instructions.

A disposition of last remains often contains a variety of information and this often includes “Anatomical Gifts.”  These gifts are the primary reasons that we have any law at all that defines death – so as to enable organ donation.  This is why “brain death” is called such and why it still remains controversial in many respects.  In the advance directive form I use, there is a clause concerning anatomical gifts.  Many Colorado residents have selected the option of signing up as an organ donor with the Department of Motor Vehicles (a division of the Department of Revenue), and these folks are identified with a small red heart with an embedded “Y” on the lower right corner of the front of the license or identification card.

So what about the interface of the Disposition of Last Remains with the Medical Durable Power of Attorney (MDPOA)?

The MDPOA statute is found at Colo. Rev. Stat. § 15-14-506, and subsection 3 states:

An agent appointed in a medical durable power of attorney may provide informed consent to or refusal of medical treatment on behalf of a principal who lacks decisional capacity and shall have the same power to make medical treatment decisions the principal would have if the principal did not lack such decisional capacity.

An MDPOA may also contain a statement of wishes or give the authority to the agent, after the principal’s death, to make a determination of disposition of last remains of the principal.  This is so because an MDPOA is a “declaration” as defined by C.R.S. §15-19-103.  This is a long post, thanks for reading and until next week . . .

©Barbara Cashman  2015   www.DenverElderLaw.org

Jefferson County Senior Law Day – Saturday June 13, 2015

Italian Arch

Italian Arch

This is the season for the annual Senior Law Days, co-sponsored by the Colorado Bar Association.  There are a number of events taking place throughout the state, but this post is about the Jefferson County Senior Law Day this Saturday, June 13, 2015.  Yours truly will be presenting once again on the topic of Financial Powers of Attorney and Conservatorships.  My presentation is one of fourteen different topics on which presentations will be made in three different sessions beginning at 9:30 a.m. and finishing at 12:40 p.m.

This year’s Senior Law Day event is hosted by the Colorado Christian University located in Lakewood.  Senior Law Day is a great way for elders, adult children, caregivers and others to get good information about common concerns with aging and preventing financial abuse as well as making important plans about end-of-life health care decisions.  There are also a number of vendors who attend these events and several not-for-profits that assist elders.  It’s an excellent way for the curious to get some basic information from reliable sources and learn about community resources for elders and their caregivers.

Some of the other topics for presentation include: “A Consumer’s Guide to Choosing Nursing Homes and Assisted Living Facilities;” “Scams and Elder Abuse;” “Probate: Perspective From the Bench;” “Estate Planning Basics: Wills and Trusts;” and “Medicare Update.”  Don’t forget that there are also “Ask an Elder Law Attorney” sessions available for questions folks have for  the elder law attorneys who volunteer for these sessions.

If you are interested in attending a senior law day, but can’t attend this one, the annual Denver Senior Law Day will be held at the Denver Mart on October 17, 2015.  If you’re interested in more information about these kinds of topics, you can check out the pdf version of the 2014 Senior Law Handbook published by the CBA here.  Finally, don’t forget that there is an established “ask an elder law attorney” program at the Jefferson County Justice Center, in Golden, Colorado.  That’s where I will be Friday morning! Get more information about this service here.

©Barbara Cashman  2015   www.DenverElderLaw.org

 

More Adventures of the Psychopomp

Wheel from Assisi Church

Wheel from Assisi Church

In a previous post this past January, I wrote about a term, an “office” to be more exact, about which very few of us in this post-modern world know.  The psychopomp is the guide to the “other side” so to speak.  The guide, or lack thereof in our post-modern existence, speaks to an unmet need for some ritual, some meaning-making around the end of life.

So now a bit about Mercurius, a/k/a Hermes, the trickster who is also messenger and guide of souls.  For Carl Jung, Mercurius as guide to “the underworld” meant that he was more akin to the god of the unconscious.  Mercurius is also bringer of news, transformation and other processes including healing and Mercurius does not fight with the other gods of the Greek and Roman pantheon but strives to make sense and meaning of them – which seems to be why Jung’s term synchronicity for meaningful and symbolic coincidences seem to evidence the hand of Mercurius.

But the path is difficult, narrow and often disappears or involves a painful transformation.  Is there something that is the end result of this transformative process? Why yes, there are of course several answers to this, but the integration, the longed-for unity of the adept is that of integrity, that is revealed in its timeless form and no longer subject to change or destruction.  This is symbolized by the lily, a magical flower.  The white lily is emblematic of the primordial goddess from antiquity, has a number of references in the Hebrew Bible and is also depicted in Christian art in paintings of the annunciation as well as Saint Catherine of Siena, for example.

What the ancient alchemists referred to as “alchemical mercury” was a volatile liquid, mainly alcohol, which carried the life force of a fermented plant.  In the process of fermentation, the plant dies and disintegrates, and “gives up the ghost” of its life force to the volatile liquid.  And yes, if you’re wondering  . . .this is where the term “spirits” as in wine and spirits sold at a liquor store – has its origin!

There are references to the psychopomp in the animal world as well.  In art it is often depicted as a deer, whose caution and grace, along with its sudden and unpredictable appearance and disappearance link the animal to Mercurius. The deer, like the transformative intermediary and rather slippery character is often a symbol of the twisting and turning path of transformation or of pilgrimage and the “now you see it, now you don’t” nature of such a course.  Indeed Rainer Maria Rilke wrote about this in “The Book of a Monastic Life,” this from The Book of Hours, with beautiful translation and commentary by Anita Barrows and Joanna Macy and available from Riverhead Press:

You come and go. The doors swing closed ever more gently, almost without a shudder. Of all those who move through the quiet houses, you are the quietest. 

We become so accustomed to you, we no longer look up when your shadow falls over the book we are reading and makes it glow. For all things sing you: at times we just hear them more clearly.  

Often when I imagine you your wholeness cascades into many shapes. You run like a herd of luminous deer and I am dark, I am forest.  

You are a wheel at which I stand, whose dark spokes sometimes catch me up, revolve me nearer to the center. Then all the work I put my hand to widens from turn to turn. 

                Rilke, The Book of Hours, (A. Barrows and J. Macy, transl), l. 45 at 105 (1996).

 

So now that I’ve mentioned alchemy, Mercurius and  Rilke, how can I tie these thread together in the hope of making any sense out of this psychopomp foray?!  Well, that remains to be seen. . . but I will close with an observation and link about the importance of people being with one another as one is dying, for this being with the dying is transformative for the person doing the dying as well as the other person who is part of the relationship.  I recently came across an excellent video entitled “Beginning with the End” – a documentary featured in SXSW. Here’s the trailer.  It’s about teaching young persons about the dying process, as experienced by people whose lives and experiences are shared in relationship. Blue Sky has a longer explanation of the documentary here.

Here’s the overview: Emma and Ernie ate lemon meringue pie together. Ernie taught Emma about life. And Emma helped Ernie to die. In 2002, a high school teacher in Rochester, NY, invited nine high school seniors to attend his new class. The name of the class: Hospice. A decade later, the program continues with student volunteers learning about and providing comfort care for the dying and their families. The film follows the real-life stories of four student volunteers through their senior year. In the quest to understand “the big sleep,” they find a whole new kind of awakening.

What does the involvement of young people caring for the dying involve?  A new language of connection? Most certainly.  As one of the students remarked . . . it’s not about death, it’s about life.  Life’s connections among the living.  Touch, human touch.  Oh yes, and transformation of each of us.

That’s all for now.

©Barbara Cashman  2015   www.DenverElderLaw.org

A Probate Judge Finds Same Sex Common Law Marriage in Colorado

Springtime in Italy

Springtime in Italy

 

Last week I received news on a listserve that the Jefferson County District Court, sitting in probate, granted relief to a woman who claimed she was the surviving common law spouse of a decedent.  The two women had cohabited together for many years.  As is common in states recognizing common law marriage, a person claiming to be a surviving common law spouse must file a petition for intestacy and establish that the petitioner was the surviving spouse of the decedent by virtue of proving certain elements of the existence of a common law marriage.  (A surviving spouse who has married or entered  into a civil union with another person already has a certificate which shows this spousal relationship.)  This proof of common law marriage may sound straightforward, but it is not.  Colorado is one of only a handful of states which still recognizes common law marriage.  The trickier issue (which crops up in the dissolution of marriage context) of when the common law marriage began is not often before a court when it makes a determination in a decedent’s estate administration that a person is or is not a decedent’s surviving spouse.  The only salient issue for those purposes is whether the couple was married at the time of the decedent’s death.  This is what the Jefferson County District Court recently determined.  This is distinguished from the marriage dissolution context (in domestic relations proceedings), where the relevant question is when the common law marriage began.

Here’s a redacted excerpt of Judge Lily Wallman Oeffler’s ruling of May 21, 2015 on a Petition for Adjudication of Intestacy and Formal Appointment of Personal Representative:

The Court, having reviewed the Petition and the applicable law, FINDS and ORDERS as follows:

THE COURT FINDS that Decedent and Petitioner MRS. SMITH have satisfied the two elements of common law marriage: 1) the mutual consent or agreement to be married; and 2) a mutual and open assumption of a marital relationship. People v. Lucero, 747 P.2d 660, 663 (Colo. 1987). The couple cohabitated for approximately 30 years, raised three children together, held real property and bank accounts in joint ownership, participated in a marriage ceremony in front of friends and family, recited marital vows, and wore wedding bands.

THE COURT FURTHER FINDS that “the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws.” Kitchen v. Herbert, 755 F.3d 1193, 1199 (10th Cir.) cert. denied, 135 S. Ct. 265, 190 L. Ed. 2d 138 (2014). Further, “a state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.” Id.

IT IS HEREBY ORDERED that, under the ruling in Kitchen, Petitioner is Decedent’s common law spouse, and is qualified and hereby confirmed to serve as the Personal Representative of Decedent’s estate.

So, it turns out that a same-sex couple can “hold out” as a married couple for common law marriage purposes.  Some of the indicia of such marriage will differ from those of an opposite sex couple (e.g., for a same sex couple who wasn’t able to file joint tax returns), but these will not obviously operate as  a bar to a court’s finding of the existence of a common law marriage.  It seems the institution of marriage is, in many respects, alive and well as a result of the marriage equality movement!

So, what exactly is “common law marriage” and why should any of this matter?

Common law marriage is a frontier relic.  England abandoned it in 1753, but it continues on in the states of Colorado, Kansas, Utah, Texas, Iowa, Montana and a couple east coast states.  It isn’t even really “common law” in that it is regulated by statute (except in Montana).

Many of us are celebrating  this important development of the judge’s decision excerpted above, but not without some concerns in the backs of our minds. . .  after all, marriage has evolved and changed over the course of human history and has served a variety of interests including political, economic, diplomatic, religious and other aspects of regulating human behavior and providing stability in the form of certain protections, particularly for children and more vulnerable members of society, which have historically been women.

What about the nature of a relationship between an opposite sex couple who choose not to marry but have children and a long term relationship together?  Are these considerations likely to be similar to those of a same gender couple?  This is one of the places where things get rather complicated.

And here’s another important question – What if the couple does not want to be treated as married and wants to have a relationship that is nonmarital for all intents and purposes – is this likely to be more difficult?

The likely answer to this second question is  a qualified “yes.”  While a straightforward answer to that question may be that the parties can contractually agree to a living together or cohabitation agreement, the ruling above shows the fluid nature of what is deemed to be marriage.  The simple fact that a couple may not want to be considered married for purposes of the law is not conclusive of such arrangement.  In my mind, couples who want to be considered in a relationship of a nonmarital kind can still document their relationship as such and avail themselves of certain limited protections and benefits as a result of such relationship through the use of a pre-civil union statute governing contractual arrangement known as designated beneficiary agreements.  More about that in a later post. . . .

Important to note here is that common law marriage in the U.S. does not, in contrast to many a layperson’s thinking, have a particular minimum time period associated with its existence.  This stands in contrast to cohabitation laws in many other countries such as Canada, where cohabitants are known as “common law partners” and the relationship is governed by a law passed by the Canadian Parliament in 2000 which does make marriage and cohabitation look much more similar.  This is also the case in England, where the Worker’s Compensation Act of 1906 recognized non-marital forms of co-habitation.  The law in England looks  to concern itself largely with the conferring of an economic benefit on the other partner and considers in that context who is appropriate object for the law’s protection.

Nearly three years ago I wrote a couple blog posts about legal and financial considerations for nontraditional relationships and I don’t intend to revisits those now in light of all the U.S. Supreme Court and other important decisions (including the Tenth Circuit’s Kitchen decision cited above) concern same-sex marriage, but as marriage equality seems more within reach, it seems only logical that we should take a look at the bigger picture of marriage in this country and why so many young (opposite-sex) couples choose to have children but not get married.  This development challenges the protections afforded for married couples – should they still be a “monopoly” for them?  Remedies for children and more vulnerable partners are available under contract law, but they are not consistent and vary wildly from state to state.

What about a Colorado couple (married or partners in a civil union) who want to contract away some of their rights arising from the spousal relationship?  Colorado adopted the Uniform Premarital and Marital Agreements Act in 2012 and it applies to agreement entered into after July 1, 2014.  The law is codified at Colo. Rev. Stat. § 14-2-301 et seq.    The new law made important changes regarding access to counsel and other important requirements about how the agreement is reviewed and which affect the waiver of important rights.

So the question remains . . .  how do we predict the future, make informed choices  and otherwise advise clients about what legal obligations are owed to a cohabiting non-spouse and how might this be affected by a burgeoning definition of common law marriage?  Stay tuned!

©Barbara Cashman  2015   www.DenverElderLaw.org

 

Fiduciary Access to Digital Assets – an update of sorts

Italian Wall

Italian Wall

Well, it’s been a while since I’ve written a post about digital assets in the probate context.  This year, Colorado was one of twenty-three states whose legislatures introduced the Uniform Fiduciary Access to Digital Assets Act (UFADAA).  Keep in mind that the uniform act was endorsed by the National Academy of Elder Law Attorneys (NAELA) of which I am a member.  The Colorado House Bill to enact the UFADAA was introduced at the beginning of the year, HB 15- 1189, and can be read here.  Its short lived history is this: introduced in the Colorado House and assigned to the Judiciary Committee on January 29, committee discussion took place on February 19, and then on March 12, 2015, the House Judiciary Committee voted unanimously to postpone indefinitely further action.

Our legislature has postponed further action on this uniform law, but it doesn’t mean that it isn’t important for people and estate planning attorneys to address issues concerning access to digital assets by fiduciaries in the probate context.  According to the bill fiduciaries included the following: a personal representative of a decedent’s estate (where there is a will or codicil or also a special administrator); a conservator acting on behalf of a protected person; a trustee acting under a trust; and an agent acting under a durable power of attorney.  The bill specifically addressed each type of fiduciary and their access to a digital asset in further detail.

The Colorado Bar Association subcommittee charged with discussion of this uniform law as a Colorado bill also discussed Colorado-specific inclusions to the Uniform Act, like access by a “successor” as defined in  our probate code when a small estate is collected by affidavit. Basic Information about using this form is found on the Colorado State Judicial website, www.courts.state.co.us and searching for the JDF 999 form, with instructions found at JDF 998.

Specifically excluded from application is access by an employer for an asset used by an employee in the course of the employer’s business.

So HB 1189 didn’t become law because it died in committee, but that doesn’t mean that at least some of us estate and elder law attorneys (especially ones like me who prefer to use their own form and not someone else’s) don’t still include provisions regarding digital assets in a durable power of attorney form.  Colorado remains in the majority of states which have no legislation regarding digital assets in the probate law context, but that doesn’t mean we should feel comfortable remaining complacent and not doing anything to plan just because our legislature didn’t pass this important legislation. . . .  There are step we can take to help ensure that a fidicuairy will have access to important fiduciary assets, but without a state statute to that effect, it is much less certain exactly what type of access will be allowed or recognized.

So here’s a bit of a review of why these measures are important to include in a general durable power of attorney and a will or trust:

  1. Identifying and providing an inventory of one’s digital “footprint” will greatly simplify an agent or other fiduciary’s ability to take control of an incapacitated or deceased person’s digital assets in keeping with the stated desires of the person giving the power – like a principal under a POA, the settlor of a trust, or a testator (the maker of a will). This can be done easily by keeping an update listing in a place that is discoverable or known to an agent, for example.
  2. Giving a fiduciary access to important information like usernames, passwords and the like, will greatly simplify the fiduciary’s efforts and ability get access from a service provider or to shut it down. The law in this regard is complicated – it involves user agreements, which often are based on the law of a state where the service provider is headquartered and not in which the user resides, and implicates also the federal law relating to the use of the internet.
  3. When a person gives another, such as a person acting as a fiduciary for that person, the authority to act, there should also be some instructions about what should be done with the particular asset. This will obviously makes the fiduciary’s job much simpler as a job description takes much of the mystery out of such an undertaking.
  4. The person who is the account holder should also expressly authorize service providers to disclose private information to a person’s fiduciary so as to evidence the person’s intent to give access to such information and to provide the authorized access to the information or data as a consequent of such access. This is why some of us, myself included, include specific clause to this effect in a durable power of attorney.

That’s all for now, but I will keep you posted as things continue to develop.

©Barbara Cashman  2015   www.DenverElderLaw.org