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 Colorado bill on Personal Rights of Protected Persons

Late Summer Blooms

Late Summer Blooms

 

Here’s another article about a bill making its way through the Colorado legislature.  If the title sounds obscure, it’s because it’s designed to address a rather tragic situation which infrequently occurs but has terrible repercussions.  A “protected person” in this context is a person known as a ward in a guardianship proceeding, one who is incapacitated and who has a guardian appointed to make decisions on the protected person’s behalf because they are unable to make decisions and otherwise manage their own affairs.

Here’s a link to the bill, SB 16-026.  The bill is more popularly known as the “Peter Falk” bill because it concerns the late actor’s daughter, Catherine Falk, and her efforts to promote legislation that would make it easier for children of protected persons (like those under a guardianship) to challenge the monopolization or limitation by a guardian upon access to the protected person by the protected person’s family members.  The tragic scenario in the Peter Falk case was that Peter Falk suffered from dementia in his final years and his wife, Catherine Falk’s stepmother, was estranged from Peter Falk’s daughter.  Falk’s wife prevented Falk’s daughter from visiting her father and so she took her battle – an expensive one – to court in California.  Catherine Falk later organized her own effort to ensure that this type of scenario would not happen again, not just in the state where her father resided, but she made it a nationwide effort.  Visit her website here, which shows the ten states whose legislatures are currently considering the legislation.

If you think this kind of scenario would only play out for a celebrity, well . . .  think again! A large proportion of us, particularly us baby boomers, are in second marriages or otherwise part of a blended family – with all of its particular and unique personal dynamics.  According to this study by the Pew Center, remarriage is on the rise for Americans aged 55 and older.

I do estate planning for many blended families.  While many of the shrinking number of “Ward and June Cleaver” families (long marriage, children in common) would not consider this type of scenario to be likely to occur, as the baby boomers and our core complicated familial arrangements get on in years and continue to change, the Peter Falk bill presents an opportunity to curb restrictions which a guardian may place on who may visit and interact with “their ward.”  I have a hunch that more of us in my line of work are likely to encounter this difficult and sad scenario.

As we continue to live longer and grapple with more encroachments on our capacity – in the form of dementia and other physical, cognitive and psychological challenges, we will likely confront these difficult issues more frequently.  The debate about limitations on guardianships – of rights retained by an incapacitated ward, as well as the limitations on the authority of the guardian – are difficult issues with which people and courts must certainly grapple.

I will close with an observation from a favorite poet.

The great secret of death, and perhaps its deepest connection with us is this:

In taking from us a being we have loved and venerated,

death does not wound us without, at the same time, lifting us

toward a more perfect understanding of this being and of ourselves.

—Rainer Maria Rilke, Letter to Countess Margot Sizzo-Noris-Crouty, January 23, 1924

©Barbara Cashman  2015   www.DenverElderLaw.org

Colorado End-of-Life Options – proposed Colorado legislation

Archway at DBG

Archway at DBG

A bill has recently been introduced in the Colorado legislature that would legalize “aid in dying” or physician assisted death.  Last year I wrote a post about a previous version of this bill, then known as the “Death With Dignity” bill.  Just the name change to “end of life options“ and its references to “aid in dying” reflect a change toward a more neutral approach to this highly controversial topic.

A group of us on a bar association committee have examined this proposed legislation, solely for the purpose of looking at how it lines up with existing Colorado law.  Last year’s bill was based on Oregon law and its terminology contained many anomalies and terms from that state which are not consistent with Colorado law.  This new bill contains some changes from its predecessor and I have looked at last year’s bill alongside this year’s bill but the number of changes is not large. Most troubling to some of us is the rather lax standard for witnesses to the request process (set forth in §25-48-104 of the bill) as they are not nearly as stringent as the standards for executing a living will.  Sure, there are also emotionally-charged and value-laden subjective terms in the bill, like “in a peaceful manner,”  “peaceful death” and “peaceful and humane.”  These are some of the troubling aspects of the proposed legislation from my perspective as a Colorado estate and elder law attorney.

Even though I do own a crystal ball, I have yet to get my hands on a decent user’s manual for it. . . ! So, I can’t say what will happen with this latest bill.  It may well end up being chucked out once again by the legislature, only to make its way as a ballot initiative, in the same manner that Washington state got its legislation.

California was the most recent state to pass legislation allowing physician assisted death.  Governor Brown signed the End of Life Option Act into law on October 5, 2015.  You might recall that Brittany Maynard, the young woman who suffered from terminal brain cancer and whose physician assisted death was highly publicized, was a Californian who relocated to Oregon in order to avail herself of that state’s physician assisted death law.

Here’s a link to the Colorado Health Institute’s post about physician assisted death in the wake of Brittany Maynard’s death.  In case you’re wondering about the terminology, the Hospice and Palliative Care folks tend to prefer “physician assisted death” while the Compassion & Choices (successor to the Hemlock Society and proponents of the legislation in many states) folks prefer the term “aid in dying.”

Here is an excellent article on the diverse issues presented in the physician assisted death debate. The article covers the historical and cultural context for the aid in dying movement in this country.  I also found the observation about minority groups not being as keen on physician assisted death as Anglos (sorry, I still use this term from my college days) very telling.  We still must grapple with the historical legacy of our health care system’s treatment of the marginalized.  I have blogged about the Tuskegee experiment and I know from experience (having taken some of these calls at my office) that some newer immigrants to this country are keenly aware of their status as outsiders who might be viewed by the medical establishment as being powerless to object to removing a loved one from life support, for the suspected purpose of harvesting valuable organs.

Okay, so what does any of this have to do with the proposed Colorado legislation?  Well, plenty.  I am not taking a stand here for or against the legislation, but I do have a question that underlies the premise of such legislation.  The major base of support for physician assisted death in this country has been along the west coast, the states of Oregon (implemented their law in 1997) and Washington (approved by ballot measure in 2008) are pretty homogenous (mostly Anglo). I don’t think it’s a coincidence that many of the people who state they may wish to avail themselves of physician assisted death are better-than-average educated Anglos.  These are people who are used to being “in charge” of their lives, making choices and seemingly charting their own destinies throughout life.  These are many of the same folks who struggle mightily with quality of life and independence and autonomy issues as we age and became less independent.  This isn’t too far from the death denial and youth glorification I am so fond of writing about.  For many of these folks, the right to die is simply an extension of their self-determination in the medical context.  I  however, do not think it is nearly that simple!  Nor do I think the “illusion of control” that so many of us collectively buy into so readily extends readily to complex end of life scenarios.

I can certainly understand concerns about less medical intervention to prolong life, but this is not what we’re talking about here.  We are talking about extending a person’s health care self-determination right such that medical technology is used to end a life.  I will close with another question – does or should it matter that not many so people will use this legislation to hasten their deaths?

I’m sure I’ll be writing more on this interesting topic, so please stay tuned.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

 

Another post about caregiving and living arrangements

Santa Fe sculpture

Santa Fe sculpture

In looking once again at aging in place, let’s look at whether you really need to know what a NORC is and how it is different from a CCRC.

Conventional wisdom dictates that most of us would want to stay where we are as we grow older, but this isn’t always the case.  It depends on the person’s unique circumstances.  Some of these factors include:

The kind of home or condo you own – does it require lots of maintenance and have stairs or other factors that require lots of physical attention?

Is it necessary to drive a car to get groceries, visit friends, or get to social activities, or can you carpool or use public transportation?

Many people don’t think about the social isolation factor of staying in their own familiar home, but if an elder doesn’t have friends or neighbors nearby that can check in on them, elders can become isolated in a solitary and repetitive routine that can be deleterious to their emotional and mental health!

Refining the balance of social engagement and doing your own thing is something that is often required for successful aging in place.  Change is the only constant, but many of us will voice concerns about maintaining our “independence” at all costs.  With so many baby boomers reaching elderhood now, it will be interesting to see the myriad and innovative ways that boomers meet this challenge.  Apart from their huge number, boomers have a relatively high proportion of divorce and remarriage (blended families) as well as co-habitation.  There really is no “norm” for the boomers in this regard!

I think the best advice for folks nearing retirement and hoping to age in place and otherwise stay put is to consider all relevant options and to make a plan.  I particularly like the Dwight Eisenhower quote in this context:

In preparing for battle I have always found that plans are useless, but planning is indispensable.
In my line of work, I find that people often think that sticking to a plan (or more likely, just some fixed idea about how things would turn out) is the most important thing.  As if life were something we could plan and force execution of the plan!  We are so checklist and task-obsessed in our busy world, we tend to forget that the planning process is the both the end as well as the means – not the fashioning of a solid plan which often must be adjusted and sometimes jettisoned.  This is one of the reasons I often refer to the work I do for clients as helping them identify a strategy.

If you want to think about this aging-in-place notion a bit more, here’s a post from Fidelity about success factors to consider in staying put as you grow older.

One of the factors that can help elders age in place is staying put in a place, a community, a neighborhood, that has plenty of supportive services which many elders will need as they age.  Enter the NORC, the naturally occurring retirement community!

The NORC, yes it’s legit, it’s in Wikipedia!  NORCs have been broadly defined as communities where individuals or couples either remain in or move to when they retire.

Of course what is “natural” in the naturally occurring retirement community is a rather broad and generous concept.  This could be as simple as an apartment complex for elders, a housing development or a neighborhood.  As to the neighborhood concept, this has been well-developed by the NORC Aging in Place Initiative, which is a program of the Jewish Federations of North America.  The full name of the initiative is the NORC-SSP, “SSP” being short for supportive services program, which considers the social services appropriate and necessary to foster independent living for elders.

Some of the important factors include financial considerations, which vary widely among those already retired the “semi-retired” and those still years away.  People are generally working longer, and this is probably a good thing for the majority of people, but some have no choice in the matter.

In my last post, I looked at the importance of having this conversation about aging and caregiving arrangements before there is any crisis.  I often work with people (and their loved ones) who suffer from progressive diseases which practically demand such conversations – those with multiple sclerosis, Parkinson’s disease, ALS, as well as other neurodegenerative conditions which have both a physical and cognitive or mental health component.  Some of these folks will do the planning and have the financial ability to choose a continuing care retirement community (CCRC) which is also a kind of NORC.

As I am often reminded. . . . Aging is not for sissies!  It is, of course, best done with a plan including effective durable powers of attorney and other means to choose in the event of incapacity.

I’ll close with a quote from Ralph Waldo Emerson, who reminds us that human growth is always a possibility, no matter where we find ourselves:

Always do what you are afraid to do.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

 

Caregiving Arrangements and Elders: The Next Conversation We Need to Have

Youthful Exuberance

Youthful Exuberance

Death denial and youth glorification go hand in hand in our culture.  Today, I’ll look a bit more at some of the cost of denial in terms of aging and a loss in capacity for the majority of us.  I’ll start with some questions . . .  How many of us will voluntarily give up our car keys? How many will willingly concede to family or friends that we are having a difficult time managing our daily existence?  In my experience, the number is small.  It takes a combination of honest self-assessment, a well-developed self-awareness, a special types of candor, or just something catastrophic that “calls the question!”   For the former, I think of a cousin’s late father, just a few years older than my father (his cousin).  He was a retired physician and at one point detected some cognitive “slippage” which did not seem to be age-related.  He got himself to the doctor and shortly after getting his dementia diagnosis, updated his estate plan and moved to another state with his wife to live his remaining years close to one of his children.   His children no longer resided in the same state where they were raised.

Many of us would not be willing to make such a drastic change, perhaps because it doesn’t fit in with our idea of how our life in our elder years is “supposed to be” and doesn’t seem to fit with our idea of how we should “be independent” and not be a burden on loved ones.  But often the simple denial of the inevitable, along with the lack of planning and of stock-taking, means that we most certainly will be a burden on our loved ones.  I have joked with clients about this, that no client has ever informed me that they want to be a burden on their adult children . . . !

Of course there is also the financial piece of the planning.  Given the meager state of average retirement savings for many boomers and other elders, along with the hard reality that many retirees are just one health catastrophe away from bankruptcy, some folks take the “why bother?” approach as an excuse to do nothing.  Procrastination is, after all, an effective means by which to focus on what really matters – or at least what keeps us busy, which are seldom the same thing!

Okay, enough with the wisecracks. Death denial is only one side of the coin here so to speak, and on the other side is the youth glorification, its own form of denial of encroaching mortality.  In our present independence obsessed “aging in place” mantra muttering mainstream, we often fail to see the hidden costs of our independence and the burdens it often places on others.

Yes, I’m thinking of all the family (unpaid) caregivers.  The vast majority would not have it any other way most of the time, but the fact is that our longevity is getting longer and less financially certain all the time!  Couple that with the shrinking number of women (the ones who have tended to provide these services) who do not work outside the home who are available for such work) and it can cause some genuine concern.  More of us, particularly many of the divorced and single baby boomer cohort, will face much more interesting challenges with our often fractured and reconfigured family lives.  There is no “standard template” for a blended family relationship.

While I’m thinking of it, here’s a link to a recent US News & World Report article about family caregiving and how its future is changing.

Another aspect of the youth glorification beyond the self-loathing some elders feel is the denigration of the aged, the ideas that elders are no longer worthy because of their diminished capacity, usefulness or social or economic relevance.  This is when being an elder becomes a human rights issue!  Yes, I’ve blogged about the human rights of elder previously, but this is an evolving field.  I’ve recently learned about an organization called The Global Alliance for the Rights of Older People.  This organization is comprised of several international organizations as well as nongovernmental organizations (NGOs) who work together to raise awareness of the threats and challenges elders face in different parts of the world and supports the creation of international human rights instruments as tools to strengthen the rights of older people.

So I will close with an observation which I believe is illustrated by a Carl Sandburg poem featured below.  Is it really too difficult to filter through the noise and the modern day disease of incessant busy-ness to talk about this?  What if we could consider the present importance of our relationships which sustain us in a long term “what if” scenario that went beyond the planning for our inevitable demise?  Would that change the way we are living right now?  I think it would.  I also think quieting the mind and considering the stillness is one means of opening the door to welcome those questions for contemplation and consideration.

The Answer, by Carl Sandburg

You have spoken the answer.
A child searches far sometimes
Into the red dust
                          On a dark rose leaf
And so you have gone far
                         For the answer is:
                                                 Silence.

 In the republic
Of the winking stars
                          and spent cataclysms
Sure we are it is off there the answer is hidden and folded over,
Sleeping in the sun, careless whether it is Sunday or any other day

       of the week,

Knowing silence will bring all one way or another.

Have we not seen
Purple of the pansy
                   out of the mulch
                   and mold
                   crawl
                   into a dusk
                   of velvet?
                   blur of yellow?
Almost we thought from nowhere but it was the silence,
                   the future,
                   working.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

Elderhood and Winter As Life Stages

 

Siennese Waters

Siennese Waters

I would like to wish everyone a Happy New Year.  Instead of another post written by me, I am simply closing this last post of 2015 year with a quote from the nineteenth century Scottish author and poet George Macdonald, from his book Adela Cathcart:

The winter is the childhood of the year….It is as if God
spoke to each of us according to our need: My son, my
daughter, you are growing old and cunning; you must grow a
child again, with my son, this blessed birthtime.  You are
growing old and selfish; you must become a child. You
growing old and careful; you must become a child. You
growing old and distrustful; you must become a child.
are growing old and petty, and weak, and foolish; you
become a child – my child…

May this quote, this observation of the season, assist each of us in focusing on and appreciating  our inward state of affairs, and not just the easily recognizable outward, external and material world.

© Barbara E. Cashman 2015   www.DenverElderLaw.org

 

 

Elder Financial Abuse of a POA by an Agent – part I

Memorial to Parents at a Child's Wedding

Memorial to Parents at a Child’s Wedding

 

Here’s another post about elder financial abuse and exploitation.  This is the first of a series of posts about one particular aspect of elder financial abuse – the misuse of a general durable power of attorney (POA) by an agent.  As many of us either already know or just suspect. . . . quantity does not equate with quality of life as more of us are living longer!  This concern about how we manage our longevity and plan for incapacity is a phenomenon that will affect us in increasing numbers as the baby boomers continue to grow older.

Elder financial abuse defined: According to the National Center on Elder Abuse (ncea.aoa.gov), financial exploitation (also called financial abuse) is the illegal or improper use of a vulnerable adult’s funds, property, or assets. Financial abuse is a crime, and each state has its own definition of financial abuse.

Here’s an overview of some of the “landscape” of elder financial concerns.  Lots of folks were relieved when Colorado finally passed a mandatory reporting act which allows for much greater law enforcement involvement in such matters.   In the “bad old” days, most folks calling the district attorney’s office were told the alleged abuse or exploitation was a “civil matter” unless it was a sufficiently large amount of money.  I also think it’s helpful to consider this development in light of the Colorado Court of Appeals’ ruling from 2013 in People v. Stell, a criminal case with application to Colorado’s Uniform Power of Attorney Act.  You can read more about that decision here.

A friend told me about a recent issues of the American Bar Association’s GPSolo magazine that focused on elder law.  You can read an article about Advocating for Elders Suffering Financial Abuse and Exploitation here.

There aren’t a lot of statistics available about abuse of financial powers of attorney, but it has shown that most victims of financial abuse or exploitation retain capacity, meaning that the principal can put an end to the agent acting on the principal’s behalf.  This is important because of how a financial POAs work.  They require third party acceptance (by banks, brokerage houses and so forth) and so if an agent is behaving badly, the principal must take immediate steps not just to revoke the POA that gives the agent the authority to act, but the principal must also notify third parties with whom the agent transacted financial affairs or may have done so to inform them of the revocation of the POA and that the agent suspected of misbehavior no longer has authority to act on the principal’s behalf.

I have worked with elders who have been exploited by their children.  It is exceedingly difficult for most parents to come to terms with the fact that their child is stealing from them.  Telling a third party about this can be painful and embarrassing, and unfortunately that is what many exploiters bank on – that the elder will feel ashamed and will not seek assistance.   When an elder contacts me about this I assure them that the majority of the POA abuse cases do seem to involve adult children.  This is not to diminish the number of non-relative predators out there looking for prey in the form of an isolated and trusting elder who may be sucked into a too-good-to-be-true business deal or simply a plea from a stranger or “long lost grandchild” who seeks financial assistance in hard times.

The exploitation of an elder by an adult child agent under a POA does not seem to have any “typical” types of red flags, as they are often dependent upon the nature of the parent-child relationship.  This can complicate matters greatly, particularly if the adult child is one of several siblings and is working to isolate the parent so as to make the exploitation easier.  Many of these behaviors in the POA context – control over the parent’s finances, dictating choices an elder has previously made independently, other life activities involving the “care” of the elder, along with limiting access to others who might provide emotional support or making such communication difficult, bear a striking resemblance to the behaviors of a person using such tactics for their own gain in the form of psychological or emotional abuse.  When you couple an elder’s isolation and frailty with a person who withholds information from an elder and access to others who would be allies, this can be a very harmful mix.

When an agent under a POA keeps information from an elder and does so in a secretive or non-transparent manner, this is a serious “red flag.”  For this post, I will focus on prevention – what an elder needs to consider before signing a POA.

What are some steps people can take to help prevent financial exploitation by an agent under a power of attorney?

  1. Choose you agent carefully! This is by far the most important aspect of using a POA. Name someone you trust with money who isn’t secretive and can answer questions about finances without difficulty
  2. Have a good idea of what your assets are and communicate how you want them to be managed. This will help inform your agent about how they can discharge the fiduciary duty which the agent owes to their principal
  3. In the event of incapacity, it is important that the agent have an idea of what wishes are about what to spend first and how money might be invested or investments consolidated, so that these instructions can be written for the agent (not too detailed, because things are always subject to change); and whether the agent has the authority to make gifts.
  4. Picking an agent who will take extra care in matters regardless of the principal’s capacity. Keep in mind that capacity and competency are not typically either/or kinds of propositions.  Just because someone has been diagnosed with dementia doesn’t necessarily mean the person lacks capacity.  Conversely and more commonly, an elder often does not receive this diagnosis (which often isn’t conclusive of much of anything).  Dementia can often be a long and winding path with many periods of lucidity or intermittent “sundowning.”
  5. Remember that a POA remains revocable as long as the person retains capacity to revoke it.  The principal should have some idea of what would constitute grounds for firing an agent or revoking the POA and how easy or difficult this might be on an emotional level.

So what might this kind of POA abuse or exploitation look like?  Often the principal’s major asset is the home.  Is an agent transferring the principal’s interest or a partial interest in the principal’s home to the agent?  What I have seen on more than a couple occasions is an agent use a quitclaim deed to accomplish this transfer.  One was for “safekeeping” – the agent was afraid that a sibling was going to be given an interest in the property, so the agent transferred to herself first (!); and another transfer was “just in case” mom needed to qualify for Medicaid later one, at least that was the rationale for relieving her of her sole asset.

In my next post on this topic, I will be looking at the steps an elder can take to stop an agent and remedy a situation created by a misbehaving agent or an agent who has been financially exploiting or abusing an elder.

© Barbara Cashman 2015  www.DenverElderLaw.org

Unlearning, Elderhood and the Aging Process

Chalk Rosetti in progress

Chalk Rosetti in progress

 

One of the best parts of my job as an elder law attorney is I often discuss the “big” questions with older people – their values factor into both planning and crisis management.  So . . . . what is the wisdom of elderhood?  Is it the stubbornness of life, or the wisdom of aging, or perhaps a combination?  I was reading an interview with Dr. Tom Kirkwood, entitled “Inevitability of Aging?” in Mind, Life and Universe: Conversations with Great Scientist of Our Time, Lynn Margulis and Eduardo Punset, eds., Chelsea Green, 2007.  In the chapter’s introduction which precedes Punset’s interview of Kirkwood, Punset observes “the first great myth is the human certainty that we are programmed to die.”  Id. At 188.  This myth to be “unlearned” is the topic of exploration for the interview of Dr. Kirkwood.  What I find fascinating is the use of the term “myth” in the context of what we think we know about aging and lifespan.  This is of course a popular and limited definition of “myth” meaning a widely held but false belief or idea.

Let’s take a quick look at human mortality by a couple terms and numbers:

The familiar one – Infant mortality – this is the death of an infant, and child mortality is typically reference to a child under the age of 5.  We think of these numbers as not particularly concerning in our country, which seems odd due to the fact that we have the highest rate of infant deaths (6.1 per thousand in 2010) which is more than double the same figure in several other industrialized countries.    US life expectancy is also the lowest among wealthy nations, attributed to our shortage of affordable and available health care (disease), obesity, violence and other factors.

Should it then come as a surprise that our longevity in this country might involve more medical intervention and support, to the extent we can afford it and it is otherwise available?  What is interesting is that health spending in the US accounted for nearly 17% of the GDP in 2012, far greater than the average spent by other OECD countries.

So enough of the forensic aspects of this longevity back to the quality aspect, of the possibility of unlearning the thinking that there is no biological limit on human life.  Dr. Kirkwood challenges three aspects of aging and death as inevitable.  Kirkwood looks at longevity from a cellular level, identifying its threats – including oxygen and free radicals and the increased incidence of cancer as our cells often mutate erroneously, unable to repair themselves or clear out the garbage.  He concludes that aging is simply a result of damage to our body, and that much of it can be avoided by decreasing our food intake dramatically.  Reminds me of the study that came out a few years back about the long term study of rhesus monkeys perhaps, that longevity is to be gained by calorie restriction, but I also remember something about the study observing that the subjects were ill-tempered. . . . !

So the balance again and the question – what is our longevity for?   It begs the question if you aren’t already looking at your life in elderhood in some reflective way.  I am not talking about reminiscence, plenty of people mistake that longing for the past as something other than what it is – a refusal to let go of what once was (remember “chronolatry”?)  And so what if learning from one’s mistakes isn’t what wisdom in elderhood is about at all?  What if the wisdom of elderhood is about being receptive to what the future holds for us, being able to hold that uncertainty?  This relationship with the future, a letting go of the illusion of control that is based on some past event that was known, might be a threshold for the wisdom of elderhood.  Pressing on amidst disappointment, amidst difficulties, is of a different quality than proceed blindly with hope.  Hope in the former sense is grounded, based on what is in this life, not some far-flung fantasy.  It strikes me that this type of is from waiting and experience, an expectation of something coming from the future, not something continuing from that past.

Shouldn’t elderhood herald a ripening, a wisdom that is concerned with the ultimate questions, in whichever form they present themselves?  As we travel along more of our life’s paths, many go beyond the rules of what we have learned, the explanations of politics, natural sciences, economics and other general standardized types of analysis into the uncharged territory of interrogating and forming our life’s meaning, purpose or significance.  These are the “being” questions as distinguished from the “doing” questions!

Well, I seem to have led us to another dead-end!  I think it is high time for some humor, this video is a song about that elderhood “rite of passage” – the colonoscopy!

©Barbara Cashman  2015   www.DenverElderLaw.org

 

Medical Durable POA and Mental Health Services – a Volatile Mix

Orca near Vancouver BC

Orca near Vancouver BC

 

The medical durable power of attorney (MDPOA) is an important document that all adults should have.  Why? As our population ages and our longevity is extended, our chances of becoming unable to give informed consent for medical care increase.  I have previously written about informed consent in the context of medical care, but suffice it to say that when a person is unconscious, unable to communicate or otherwise too “out of it” to give informed consent to decide yes or no to a proposed course of treatment – it is extremely helpful to have a substitute decision maker named who can decide for you.  In this post, I will not revisit the smorgasbord of health care planning documents as I have done previously, but I will instead focus on a much more obscure and troublesome intersection in the elder law field: where persons attempting to assist with the requested care of an older adult who has previously been diagnosed with mental illness can get caught in a thicket surrounding access to the mental health information.

Why is this a big deal – can’t an adult (known as a “principal” in power of attorney terms)  with mental illness simply designate an agent under an MDPOA just like any person, assuming that person is not under a legal disability such as a guardianship?  Surely I am remembering that guardianship is not automatic by any stretch for an adult with mental illness or with developmental disabilities. . .

The answer is yes, but . . . well, it can be a bit more complicated than that.  As more adults – especially the aging baby boomer cohort – reach retirement age, there are more people who will have benefited from a more open attitude toward the provision of mental health services in this country.  Just because there are mental health diagnoses doesn’t mean they have to overly complicate that person’s naming of an agent under a health care power of attorney, but they sometimes result in that.  Most of us don’t think about this aspect in the context of “health care” and the MDPOA, but there are important details that can trip up our longevity planning and complicate access to information and assistance for an adult which otherwise might easily be provided by family members or other loved ones on whom we rely.

What does this scenario look like?  This doesn’t come up  very often, but when it presents itself, it is often very challenging to sort out and even more difficult to come to an arrangement that meets the needs of all those involved.  On a continuum, the most straightforward situation is with a family member who is seeking to name, in writing, particular persons as his or her agents.  In this scenario, it is a good idea to have a customized MDPOA which sets forth the scope of the agent’s powers, so it is clear that they include mental health matters.  Where it gets much more difficult is where the adult may want to name an agent but doesn’t feel clear about the mental health decision-making authority or where the person’s capacity to execute a MDPOA may be in question.  The most challenging situation is where a concerned family member seeks to petition the court regarding an elder adult, who might otherwise be a person who is incapacitated under the guardianship statute, and for whom a doctor’s letter would generally substantiate the nature, extent and cause of the incapacity, except that if mental illness is the primary diagnosis, then much different protocols apply to the protection of that information, and there may also be warranted a different type of proceeding in the probate court.  Let’s take a closer look at some of these issues.

Here’s a link to an overview of the treacherous terrain involved here.  There is also something known as a psychiatric advance directive (PAD).  In Colorado this means that a MDPOA may have instructions, or instructions may be given to the agent named in the MDPOA which specifically relate to the provision of mental health services, including psychiatric medications or hospitalizations.  These instructions must appear in the MDPOA as they may not otherwise be recognized in a “stand alone” document.

Some of the problems originate in the different sources of law – federal law of the Health Insurance Portability and Accountability Act HIPAA relating to protected health information, for example, and state law relating to protective proceedings (guardianships and conservatorship) and mental health proceedings. The appointment of an agent under an MDPOA is governed by state law.

HIPAA is a federal statute which has had a tremendous impact on health care providers since it was promulgated in 1996.  My own MDPOA form refers to the regulations (from the Code of Federal Regulations) which cover the statute’s provision regarding who is a person to whom information can be released.  The codified HIPAA rules cover protected health information and its access, including electronically transmitted health records and require consent for the disclosure of such information to third parties.  Where an agent is named to make decisions on behalf of the principal and the principal cannot give informed consent to treatment, the agent obviously requires access to the medial information in order to make a decision about treatment options.

Mental health matters are generally governed by state law.  In Colorado, a statute governs the particular types of providers in the mental health field, including psychologists, social workers, counselors, therapists and others.  See C.R.S. § 12-43-101 – 805.  Note that HIPAA gives an exception to the general rule requiring consent prior to sharing of information regards “psychotherapy notes” which are a special form of protected information and the regulation is fairly detailed.  See 45 C.F.R. § 164.508(b), (c).

The connection between federal HIPAA law and state mental health legislation and other sources of law generally concern the disclosure of information.  While HIPAA is a comprehensive federal statute, it is not designed to preempt state law.  The CFR relating to substance abuse regulation (which fall under the umbrella of mental health for HIPAA purposes) provides that the federal law is designed as a “backstop” of sorts in that if the state law is more protective, it controls, otherwise the federal law often provides the minimum standard.

There has been some recent criticism of Colorado’s rules relating to what constitutes an “imminent danger” for purposes of an involuntary commitment (a/k/a 72 hour hold).  Finally, for more information, see this article about HIPAA and mental health records.  That’s all for now, stay tuned for developments.

©Barbara Cashman  2015   www.DenverElderLaw.org

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.”

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