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.


Autopoiesis in Language and Meaning

Mes Belle Ondines

Mes Belles Ondines


I will begin this follow-up to my previous post with revisiting a definition of autopoiesis:

Planetary physiology is the autopoiesis of the cell writ large.

From Margulis and Sagan, What Is Life? (U. of California Press, 2000).

So the autopoiesis of self-production is a multi-layered process in which there are many different types of connections, depending on how and where we assign boundaries.  Do we see the aliveness beyond our own selves? Where our own boundaries of being are and who or what do they serve?  Two rhetorical questions which bring me to an examination of the nature of inquiry and the function of language . . . .

In the first chapter of Metaphor and Reality, Philip Wheelwright sets forth an equilateral triangle with the letters O (object), S (subject) and L (language) at each of the vertices, which he identifies as the “epistemological triad,” serving to illustrate the media of the formation of what might be called reality.  How we talk about reality, in terms of our participation in it, just as we participate in our own autopoiesis, is not simple to identify or describe when subject and object seem to change and the vertex for language is broad indeed.  How we come to describe this life each of us lives is no simple undertaking!

Further complicating this matter is looking at autopoiesis in the context of human consciousness, where autopoiesis is both a process as well as a presence, and the participation in our own autopoiesis is also participation in that of the autopoiesis of a larger context – a community, an organization or “the world” – which is constantly changing, evolving developing and if we acknowledge the evolutionary process of linear time,  this autopoiesis is constantly developing higher order structures.  This reminds me of Heraclitus’ observation – you can never step in the same river twice!

Sometimes we are invited to participate in something – before we know what it is or who it is that is being invited.  Often we are unfamiliar with the invitation and what it asks of us.  It is not known what it is – an event, a practice, a task, a knowing, an unknowing, a dance or simply play.  It seems that this participation is often like play, akin to a kind of music (which is older than language) that moves through us.  Makes me think of a previous blogpost about music, memory and dementia!

As with autopoiesis (and with the emptiness which is required for the process and which I described briefly in the previous post), within music and dance there are empty spaces, pauses, rests, hesitations – all of which serve to punctuate the content, organize the flow of expression and provide its beautiful uniqueness.  It strikes me that this is akin to the emptiness, the absence of something which the process of autopoiesis is dependent upon which I described in the previous post.  Sergius Bulgakov aptly noted:

      Creation is nothing that came to be.

In our autopoiesis, language is undoubtedly part of our creation, notwithstanding its essentially paradoxical nature of what and how “it” communicates, and which also means it can be revelatory and mysterious – just as it can be more literal and descriptive.

So back to my theme here about autopoiesis and that emptiness, which I would identify as the “longing” which keeps us moving through this life, in search of.   Perhaps here is an opportunity to look at two aspects of this longing, this quest of autopoiesis: for both knowledge and meaning.  Knowledge is defined by Google as: (1) facts, information, and skills acquired by a person through experience or education; the theoretical or practical understanding of a subject; and (2) awareness or familiarity gained by experience of a fact or situation.  This knowledge is essentially part of the world of the intellectual world, its academic nature is a collective and ongoing acquisition.  As such it is a community enterprise, one that builds upon shared connections and information and advances as a field.

Meaning, on the other hand, is not so easily defined for my purposes here. . .  Google’s definition offers this for the noun: what is meant by a word, text, concept, or action; and this for the adjective: intended to communicate something that is not directly expressed.  The root of meaning is from the German and the Indo-European root of the word is the same as that of mind, or the element of a person that enables them to be aware of the world and their experiences, to think, and to feel; the faculty of consciousness and thought.  Meaning, then, is the domain of the person and is necessarily constructed in relationship to the world and in particular to the world of experience.

These two aspects of knowledge (acquisition) and meaning (awareness) are connected and ought to be connected via autopoiesis although autopoiesis might not necessarily require the latter, but then I think of Nietzsche’s quote here: He who has a why to live can bear almost any how and would immediately reconsider that observation!  The connection between the two is manifold and one without the other is folly.  The more objective, spoken, literal and objective knowledge which is shared and makes so much of interpersonal communication possible is inherently rational and logical.  What often allows the understanding to be readily shared however,  is its rendering – which is that which means there is no life force within it and is devoid of that subjective quality of “spirit” in that it is an agreed upon construct.  Meaning is subjective and personal, it may come from the unspoken language of gesture, ritual or symbol, and it also arises from our human yearning for a language of understanding, of experience , for what lies beyond words, the emptiness required for autopoiesis.  “Significance” here is as unique as each one of us in any particular moment.

To come back to this clearing away, the emptiness of which is required in our  autopoiesis, I am reminded how the creating – or “allowing” is perhaps more appropriate – of empty space is essentially the maintaining of space for openness, possibility and creation of a new self.  If the stepping back and allowing for the creation sounds both like a process which is part of autopoiesis and also a spiritual practice, that is precisely the connection I make here.  The Jewish mystical term for this is known as “tzim tzum”  and Marc Gafni writes about it in his book “The Mystery of Love,” at 170-171 (2003: Atria Books).

Knowledge and meaning are entwined in meaningful ways and they need to be connected – otherwise the rational or logical knowledge is barren of any aliveness, spirit, or any significance beyond its desiccated literalness that can establish its connectedness with the rest of the person and with the human community and the autopoiesis of the world.  Stripped of any “need” for meaning or even any context for it, beyond the simple denial of any existence of meaning, we have what often appears in our present post-modern culture of death denial and questioning whether there is even any “need” for a meaning of life.  This form of “progress”” is an objective materialism that pervades our thinking about scientific “progress” and results in an intolerable reductionism, unless you are quite satisfied with that small black box of what might pass for “reality.”

©Barbara Cashman  2015   www.DenverElderLaw.org

Aging, Language and Autopoiesis

Cute Halloween Picture

Cute Halloween Picture


I was thinking about elderhood and language, how we think of aging and the words we give it and the life that is continually created as we age and those around us age.  By using the term language, I mean both the structure or system of language as well as the content and substance of the communication,   as well as a means of conveying content and substance.  Of course I should define that last term, autopoiesis – It’s not a commonly used word after all:

the property of a living system (such as a bacterial cell or a multicellular organism) that allows it to maintain and renew itself by regulating its composition and conserving its boundaries. The notion of autopoiesis is at the core of a shift in perspective about biological phenomena: it expresses that the mechanisms of self-production are the key to understand both the diversity and the uniqueness of the living. — Francisco J. Varela, in Self-Organizing Systems: An Interdisciplinary Approach, 1981

From Merriam Webster online.

In essence, autopoiesis is what makes aging and elderhood possible – not just from a biological standpoint (Francisco Varela started there but took the notion well beyond it), but also from a perspective of presence in the world, of consciousness.  The “production” of our living with autopoiesis  is the ever present process of life here – of creation and destruction, unity and dissolution, death and birth, and of change.  I think of a quote from Heraclitus: The sun is new each day.  Contrast that with the oft-quoted: There is nothing new under the sun.  The latter is from the book of Ecclesiastes.  They seem to be polar opposite in expression, but of course they are not if we look at what they describe as a process of change that is endless.

So back to autopoiesis – our growth, our production of our presence depends in no small part on the absence of something, the clearing away through disappearance and decay.  That may be the source of our longing, our searching for that which we lack, which is what keeps many of us moving in this world.  That seeking can be uncomfortable and cause us to feel lonely.  Rabbi Abraham Heschel observed in his book God in Search of Man:

Day after day a question goes up desperately in our minds: are we alone in the wilderness of the self, alone in the silent universe, of which we are a part, and in which we feel at the same time like strangers?  It is such a situation that makes us ready to search for a voice of God.

So that sense of missing something, our aloneness, the absence required by the autopoiesis is something that seems to haunt us!  (Hence the Halloween theme, I suppose!) We often insist that we be able to identify, name, classify and therefore predict this system of life, which includes our own on a cellular level as well as the system of life on our planet and presumably beyond.  But this predicting from our familiarity with the system is inherently unpredictable.  This autopoiesis has, as Bruce Clarke has noted, “a multifarious cultural history, itinerant discursive career and contrarian stance,” thus making it applicable to the context here. . . .

We may experience autopoiesis and not really be cognizant of it in any meaningful way, and this is perhaps one of the ways in which we fail to see the connections between us, as people, as living beings in a larger biological system or environment.  Do we see this aliveness beyond ourselves or do we dismiss or limit it, denying it because it is beyond us, beyond some boundary of who we think we are in terms of our experience or thinking process.

Okay, you might be wondering where I’m going with this autopoiesis notion and aging – but it is clear to me that the ability to recollect, to reflect on one’s life experiences and to create and recreate meaning, is an immensely important function of elderhood.  This is what is known as gerotranscendence, the empirically based theory of psychology which suggests that aging, elderhood, offers a generative aspect of creating new meaning and purpose in life as we age.  It is nothing new under the sun but rather a “re-enchantment with aging,” a huge step in our death-denying, youth obsessed culture.  I’ll finish this post next time, so please stay tuned.

©Barbara Cashman  2015   www.DenverElderLaw.org

Did You Know October is Conflict Resolution Month?

Cloud Above Santa Maria degli Angeli

Cloud Above Santa Maria degli Angeli, Assisi


Yes, this is an excuse for a post about elder and probate mediation. . . !  On Monday I gave a presentation to a Parkinson’s support group in Arvada.  One of the major points I raise about disability planning (like health care powers of attorney, advance directives – a/k/a living wills – and general durable powers of attorney) is its value in the minimization of conflict.  Conflict is a normal part of human existence and it is inevitable, but how we choose to deal with conflict, both individually and in a group like a family – can be complicated and sometimes destructive, particularly when a loved one faces a health crisis and we are left feeling powerless.

End-of-life care decisions are usually difficult under the best of circumstances, so when there is disagreement between a spouse, adult children or other family members, this can be a source of major problems which adds to the stress of the caregivers and the encroaching grief from the advance of the disease process.

Late stage care, like hospice and palliative care, can often provide turning points in the care of a person when family members may start to better come to grips with their loved one’s impending demise.  This is not often the case however.  Sometimes with neurodegenerative diseases such as Alzheimer’s or other forms of dementia, ALS or Parkinson’s, there is a steady and inevitable decline, but this can also be unpredictable and sudden.   Here’s a link to the National Institutes of Health’s National Institute of Neurological Disorders and Stroke, which has an exhaustive list of many different types of neurological disorders.

We need support groups for raising awareness about these diseases and also because these groups can provide resources and mutual support for family caregivers.  As I told the group I addressed today, one of the highlights of practicing law in this field is that I get to see and also help facilitate people taking care of their family members, providing them with love and care during times when that is what is needed.  One of the reasons we need support groups is that we have never had so many people living with these diseases.  While it may seem that these diseases might well be a side effect of our unprecedented longevity – here in the US as well as in many parts of the globe – it remains a mystery why these diseases are affecting larger numbers of people, particularly as there are more of us aging.

There are productive alternatives to court proceedings that can be considered when an elder’s decision to continue to drive is no longer a safe choice, or where a parent’s health care agent is perceived by siblings to be suffering from “compassion fatigue,” or when disagreements about the type of appropriate caregiving have overtaken the family members’ ability to effectively communicate regarding the elder’s care.  This is where elder mediation can be particularly helpful.

It might be useful at this point to distinguish elder law from elder mediation.  The practice area of elder law is defined by the legal problems of the elderly (which practically makes it a broad general practice area, which is why many of us focus on particular aspects of it) and the “consumer demands” of the elder population.  Elder mediation, in contrast, often struggles to include the voice of the elder and to respect the dignity of their choices and preferences in circumstances of intense conflict which can often involve encroaching disability or increased frailty, slipping cognitive skills, other health challenges.  Here’s a link to a recent article in Bifocal, a journal published by the ABA Commission on Law and Aging, which features research on the topic of health care decision-making authority.

The providing of care and sharing of care for an elder who has a neurodegenerative disease can be stressful to establish, particularly when sibling have different approaches to and comfort levels with conflict.  This is why talking with an elder mediation professional can be helpful.  But there are several useful articles available on the web about “self-help” for disputants, and I liked this one from Social Work Today.  A particularly effective means of dealing productively with inevitable conflict is to make plans around it, particularly by having the conversation around end-of-life matters and also executing documents that name health care agents and express wishes and values.  Here’s a link to the Life Quality Institute, where you can find helpful resources.

I will end this post on a happy note, about the Dementia Friendly America Initiative, which seeks to make our communities easier places of inclusion for people with dementia, so that they continue to be recognized as community members.  Denver is one of the communities which has pledged to become “dementia friendly” as this press release from the Colorado AARP explains.

©Barbara Cashman  2015   www.DenverElderLaw.org

Financial Autonomy, Conservatorships and the Neher Decision

Centennila Chalk Art Festival, with Martin Calomino, artist

Centennial Chalk Art Festival, with Martin Calomino, artist


This is a picture of my cousin Martin and me at the Centennial Chalk Art Festival last weekend.  

The Colorado Court of Appeals recently issued a decision concerning the type of evidence that must be submitted in a conservatorship proceeding.  In Colorado, a conservatorship is the tool for managing the finances of a person who is unable to manage his or her property or business affairs because the person is “unable to effectively receive or evaluate information.” Colo. Rev. Stat. § 15-14-401(1)(b)(I).  Imposition of a conservatorship on a “protected person” takes away a person’s ability to make their own financial decisions and just as in the case of a guardianship for an incapacitated person, the required evidentiary showing for imposing such restrictions on a person’s autonomy must be made by clear and convincing evidence.

The decision In Re the Interest of Neher v. Neher determined that the conservatorship statute did not require that medical evidence of a person’s inability to manage financial affairs due to an inability to effectively receive or evaluate information be included in the court’s determination.  In the Neher case, father had been dissipating many of his assets and a special conservator was appointed.  Father opposed the petition brought by his son to impose a conservatorship and so he was appointed counsel by the court to assist him in representation.   In Colorado, a respondent in a conservatorship proceeding or an alleged incapacitated person has the right to be represented by counsel.   In the Neher decision, the court of appeals made important observations in addition to confirming there is no requirement of medical evidence to support imposition of a conservatorship: the current conservatorship statute does not require expert testimony; nor does it require a petitioner to demonstrate the cause of the respondent’s inability to “effectively receive or evaluate information or both to make or communicate decisions;” the legislature’s removal of “mental illness” in the 2000 amendment to the statute supported the interpretation that medical evidence was not required; and the mere fact that the Colorado State Judicial form for Petition for Conservatorship of an Adult (JDF 876) includes a check box for medical evidence does not mean that such is required.

At this point, I will take a quick detour to explain a little bit about what is the role of respondent’s counsel.  A court-appointed attorney is an independent legal advocate who takes part in hearings and proceedings.  Contrast this with another role of an attorney in protective proceedings – that of the guardian ad litem.  The guardian ad litem acts as the “‘eyes of the court’ to further the best interests of the alleged incapacitated person or respondent in a protective proceeding and serves as independent fact finder and an investigator for the court.  In a nutshell, the court appointed respondent’s counsel must subjectively represent the client’s intentions, while the guardian ad litem evaluates (on a more objective level) and advocates for the best interests of the alleged incapacitated person.

Protective proceedings involve the stripping away of a person’s civil rights, and so appointment of counsel or appointment of a guardian ad litem can afford protections to the person who stands to lose their autonomy and can provide more information for the court as to the respondent’s situation, desires and rights.  A compelling reason for executing effective durable powers of attorney is to avoid protective proceedings.  There are times when financial or medical powers of attorney do not work for their intended purposes, which may require instituting protective proceedings – conservatorship for financial affairs and guardianship for health care decisions and living arrangements, but these instances are relatively rare.

Dementia can threaten an elder’s finances in several ways.  Bad financial decisions are of course not always indicative of dementia or other legitimate reasons for a person’s need for protection,  but  a conservatorship may be warranted to protect the assets of a person whose financial solvency would otherwise be threatened.   These threats often come in the forms of scams and other forms of exploitation of elders, but many times it is family members whose “protective” behavior looks strikingly similar in tactics to an abuser who controls another’s behavior through domestic violence.  Conservatorships are often pursued simultaneously with guardianship proceedings for an incapacitated person.  You can read a chapter from the Colorado Bar Association’s Senior Law Handbook about conservatorships here.

In addition to having the difficult conversation about end-of-life medical wishes and decision-making, I think it is also advisable to have another difficult discussion about financial affairs with a spouse, an elder parent or another family member whose autonomy is or may be threatened by bad financial decision-making and vulnerability to financial exploitation.

I will close this post with a poem about certain uncertainty, in honor of the fall equinox today:

What to hold onto?

Falling leaves a reminder

A season of change.


And the letting go –

What allows the drawing in

Will overtake me.


I must discern leaves

From branches, giving what falls

Willingly, in thanks.


Only ever change –

Love’s mantra, its face yielding

Secrets of the heart.


So I lie still here

Within the deep ground, knowing

What cannot be known.


©Barbara Cashman  2015   www.DenverElderLaw.org


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

denver elder law

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

denver elder law

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