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.

 

Obstacles to Successful Elderhood: Skilled Nursing Care

denver elder law

Dome of Aspiration

 

I’m returning to the theme I introduced a couple months back about successful elderhood and its obstacles.  Today I’m looking at institutionalized care of American elders and in particular the costs versus care conundrum.

I recently came across two unrelated articles in the space of a single day and immediately saw a connection.  The first was this article from the New York Times, about the privatization of InnovAge, formerly a not-for-profit (which used to be known as Total Longterm Care) in the Denver area and the second article from the ABA Journal, about how the imposition of routine fines having little or no impact on deterring abuses at skilled nursing facilities.

Keep in mind that skilled nursing facilities (nursing homes) are some of the most regulated business in this country – regulated by both the feds through Medicare and Medicaid, as well as by state licensing and regulatory authorities.  Do these regulatory regimes lead to better outcomes?   The ABA Journal article would tend to weigh in on the “no” side of this answer. . .  That seems to be an open question, particularly in light of the shocking circumstances surrounding the death of a young mentally ill woman in SNF care – Letasha Mims, as described in the ABA Journal article above.

As an elder law attorney, I am aware of and often share the information collected by different state and local agencies about violations at nursing homes.  In case you’re wondering about Colorado nursing homes, here is a link to the CDPHE’s page about licensing and deficiencies.   Medicare has a handy tool to compare nursing homes here. You can enter a zip code and compare facilities quickly.

The story of Letasha Mims, however, makes me question the helpfulness and accuracy of that information collected by our regulatory agencies.   But the lingering question is a difficult one: when an elder or disabled person lives in a SNF which is a for-profit business, there is a nagging question about the adequacy of staffing at those facilities.    I am thinking of a recent book I came across – Elder Care Journey, (published in 2016 by SUNY Press) by Laura Katz Olson.  What Olson confronted in managing her elderly her mother’s care is something that faces each of us who has ever had to make the difficult choice of arranging for the care of a family member, like an elder parent, in a skilled nursing facility.

Olson writes eloquently about the personal journey of getting the best care for her frail mother, but what is most relevant for this discussion is the penultimate chapter of the book entitled “Peeling the Onion.”  In that chapter she looks at the system of care for elders including skilled nursing facilities (nursing homes).   She writes that the 2012 statistics indicate that sixty-nine percent of SNFs are for-profit organizations (mostly chains), but she reports that there is a recent trend toward private equity firms (like the one which is reported to have purchased InnovAge above) buying SNFs.  Olson notes that private equity firms have goals that include making quick profit so the business can be sold for a profit within five years; typically have protections against liability for substandard care which relate to the individual facility and not the chain which is the parent of the SNF; and private equity firms, unlike publicly traded companies, have little transparency about the inner workings of their assets, profits and ownership.  These important details don’t just seem to be at odds with providing adequate care, and they will likely contribute to a burgeoning number of substandard care.

Olson quotes at 152 (a 2001 study in the American Journal of Public Health) that “rates of severe deficiencies in investor-owned facilities were 40.5 percent higher than at nonprofit homes and 35.8 percent higher than at public homes.”  What will the numbers be for the present situation? This will likely be a topic of a later post. P Perhaps a relevant question for an adult child or anyone researching placement at a skilled nursing facility is the simple one of whether it is a for-profit facility and if it is, whether it is publicly-held or owned by a private equity firm.  Profit maximization for investors does not seem to be consistent with providing good care for our frail elders.

I focus on the SNF because of the institutionalized nature of such a facility and the relatively high level of medical care which is supposed to be provided.  And if you were hoping that Medicare was somehow an equalizer when it comes to insurance care for elders . . .  think again!  There is a growing shortage of doctors, particularly primary care physicians for elders, who take new Medicare patients.  For those elders in hospitals who are suffering from terminal conditions, here is a recent article from Health News, which addresses the shortage in hospitals of palliative and hospice care medical teams who are trained to discuss end-of-life issues, effectively manage patients’ pain and otherwise address the emotional and spiritual needs of those at the end of their lives.  There just isn’t enough money in providing palliative care under our Medicare program of incentivizing big intervention and the low-tech, high touch, human-fueled intervention of hospice and palliative care providers.  This reminds me of Atul Gawande’s observations in Being Mortal and Katy Butler’s book about her father and his health crises, Knocking on Heaven’s Door.

And what about Medicaid, that government long term care program that many people are curious about for their elder family members . . . Some studies have demonstrated worse outcomes for those Medicaid patients – whose doctors receive only a fraction of what other better insured patients receive.  Medicare patients didn’t seem to fare much better.  In case you’re wondering whether this divide continues, here’s an article from last month about worse outcomes for Medicare and Medicaid myocardial infarction patients.  We are spending money for these Medicare and Medicaid services, yet so many of the needs of the people receiving these services goes unmet . . .  what gives?!

Sorry, this post appears to be largely about obstacles, but perhaps they are placed before us so as to clarify what it is we need to fix for our loved ones and for ourselves.  Er, maybe this is an opportunity after all – but only if we make it one.  One thing is certain – it will not be an easy fix.

© 2016 Barbara Cashman  www.DenverElderLaw.org

Colorado End of Life Options – A Follow-Up

denver elder law

Spring Orchid at DBG

 

I’m writing this as a follow-up to my last post, which elicited a heartfelt comment from a subscriber and a fruitful discussion on LinkedIn. . .

Voluntary euthanasia is when death is chosen by a person, when they are killed with their own expressed consent.  These types of requests and the consent needed for such must be clear.  To review a bit – passive euthanasia is when a person makes an advance directive in the form of a living will in which the person indicates the level of medical intervention – or lack thereof – in the event they are in an end-of-life scenario.  In the Colorado Medical Treatment Decision Act, Colo. Rev. Stat. 15-18-101 et seq., we distinguish between persistent vegetative state and terminal condition as the triggering circumstances for the application of the living will.  Persons dying according to the terms of their living will may direct in advance the withholding or withdrawal of certain medical interventions which would tend to prolong or sustain life. The Living Will is in essence a statement of wishes and the persons involved in providing for assisting with another’s grave medical condition must be aware of its existence and its contents.  Unfortunately, what sometimes happens is that an elder goes to a senior center or some other place to fill out a living will form, but the elder neglects to inform their family members they have done so.  No one knows of its existence or contents and so it is of no value.  This is why having “the conversation” – especially with one’s health care agent – is so valuable!

So, let’s get on with the discussion at hand.  Many of us have experience with active euthanasia in the form of “putting down” a beloved pet.  When my dear old dog Pepper was nearly paralyzed, we made the decision to euthanize her after considering the alternatives.  When two of my sons and I were with Pepper at the vet’s office (sitting on the floor with her, stroking her and telling her how much we loved her), she was injected with the drugs that would end her life.  The vet commented to me – “I wish we could do this for people.”

This is the paradox of passive and active euthanasia – that active euthanasia is more humane in that it hastens the death to alleviate the suffering, while passive euthanasia requires the withholding of the means of sustaining life – which means a person can go quickly if they are dependent on breathing support or. . . .  they will slip away slowly as they starve to death.

It occurs to me that many of us don’t think of the living will as a statement as to the form of euthanasia preference – or if there is no preference for such.  Is the living will a document that tells our loved ones to “let us go” or is it a document that gives the patient’s preference as a statement of self-determination, to be free from the unwanted interference of others?  Can it be both?

There are of course a wide variety of living will forms available.  While the documents are acceptable forms of stated preferences regarding euthanasia, different religious communities have their own preferred documents in compliance with their laws or traditions.  What is the distinction between letting someone die by not intervening and allowing a person to die by their own choice with the assistance of a doctor?  Is there really a bright line between the two?

Getting back to the “letting go” versus “self-determination” purposes of the living will, how do these play out in the context of active euthanasia or physician assisted death (as in the Colorado End-of-Life Options initiative)?  These tensions are even more pronounced in this context.  Where is the distinction between one’s not wanting to be a burden on loved ones and the subtle coercion that a gravely ill person may feel to “get on with” dying so that their loved ones can be liberated from the burdens of caring for the sick person?  I certainly am not suggesting answers.  What I am concerned about is that people seem to look for answers without regard to the question and what it entails or requires.

An exclusive focus on the self-determination rights of gravely ill people to be statutorily allowed to take their own lives – with the assistance of medical doctors – skews the discussion.  I liked Jennifer Ballentine’s article entitled “Law & Sausage: Physician Assisted Death and the Solution to Suffering.”  You can read it here.

The attraction is clear – to focus on the individual right to extend medical self-determination to include physician assisted death is a very American pastime!  We have a long tradition of championing and enshrining individual rights.  But in the context of active voluntary euthanasia, or end of life options, such exclusive focus myopically steers that discussion away from the critical context of the exercise of such a right [author’s disclaimer: I wear corrective lenses for correction of nearsightedness].  This right would certainly not exist in a vacuum.

I don’t think it is too much to consider a look at the bigger picture here and to identify in advance of our ballot choices this November the many unintended consequences which would flow from our choice.

© 2016 Barbara Cashman  www.DenverElderLaw.org

The Colorado End of Life Options Act – On Our Ballot This November

Spring in Assissi

Spring in Assissi

 

Will Coloradans approve the ballot measure to allow physician assisted death in Colorado?

This is an update to previous posts about (unsuccessful) proposed legislation concerning physician-assisted death in Colorado and the ballot initiative which will be put in front of Colorado voters this November.  Click here to read the Colorado Secretary of State’s final version of the initiative.  Today’s post is a further conversation about this highly-charged topic.  I enjoyed reading this recent Denver Post piece by Jennifer Brown about use of language and terminology in this initiative and the wider debate.

The first observation is that I’m using the term I have previously employed – physician assisted death.  When I typed in the term to my search engine, what appeared in the results was “physician-assisted suicide” defined here as

The voluntary termination of one’s own life by administration of a lethal substance with the direct or indirect assistance of a physician. Physician-assisted suicide is the practice of providing a competent patient with a prescription for medication for the patient to use with the primary intention of ending his or her own life.

I use the term death because it is less inflammatory, but it is – by the very nature of the procedure – suicide.  Assisted death can incorporate both physician assisted suicide and voluntary euthanasia, and I note this is important.  While we’re talking about terms to describe the life-ending process which is facilitated by a physician, let’s look at a few important terms to help keep the terminology straight.

Euthanasia comes from the Greek meaning “good death” and the Merriam Webster online dictionary defines it as:

 the act or practice of killing or permitting the death of hopelessly sick or injured individuals (as persons or domestic animals) in a relatively painless way for reasons of mercy.

Within the definition of euthanasia are different types of euthanasia, including: voluntary, non-voluntary and involuntary.  Today I consider only voluntary euthanasia which consists of two kinds – active and passive.

Passive voluntary euthanasia: When someone executes a living will to direct that no life-sustaining procedures or artificial nutrition and hydration be offered in the event a person (known as the “declarant” for purposes of a living will) is determined to be unable to provide informed consent and suffers from a persistent vegetative state or terminal condition.  This practice (with important controls promulgated by state laws) was made legal by the U.S. Supreme Court decision in Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990).  It was the first “right to die” case heard by the U.S. Supreme Court, and discussed important aspects of self-determination, liberty interests and due process in the context of Cruzan’s family’s attempts to have Nancy Cruzan’s previously expressed wishes (orally expressed, not in writing) upheld.

Active voluntary euthanasia: This differs from the widely accepted passive form in that passive euthanasia involves a refusal or withholding of treatment and active euthanasia involves an intervention to give something –  a lethal prescription from a doctor – to provide the means to end a life.  Herein lies the distinction between refusal to provide or continue to provide treatment (recognized in our living wills) and the active choice of one’s own death, or suicide.

Can there be any middle ground here?  Perhaps.  If you consider the arguments for wider acceptance and use of hospice and palliative care – these focus on the treatment of the whole person to manage pain, a terminal condition or end of life medical care, and not just from the more mainstream exclusive perspective of medicine’s focus exclusively on a patient’s medical problems, often to the detriment of the patient’s quality of life.  So here is the question – if patients have access to good quality palliative and/or hospice care at the end of life, then is assisted death really necessary?  One way of looking at this is to consider that the rights-focused physician assisted death doesn’t adequately take into account the scope and range of palliative and hospice care which is presently available.

As we continue to age and live with (read: have our lives prolonged by) more drugs and medical devices, how we choose to remove those supports (like a pacemaker or similar devices) is part and parcel of our choice of living as much as it is how we choose for ourselves (and others) how we manage the end of our lives.  Here there is a distinction between the legal terrain (like a medical POA or a living will) and the medical terrain (a do not resuscitate is a medical order requiring a doctor), but this is longevity in the U.S. and most people don’t live their lives consciously regarding these distinctions.  Maybe it’s time to broaden the conversation . . .

© 2016 Barbara Cashman  www.DenverElderLaw.org

Guardianship and Self-Determination

View from Rocca Maggiore

View from Rocca Maggiore

 

In this post I’m examining the concept of self-determination in the post-adjudication context where a probate court has determined in a protective proceeding known as a guardianship (the concept also applies to conservatorship proceedings) that a protected person, now referred to as a “ward” is incapacitated and a guardian is appointed for that person.  In the guardianship context, after a person’s civil rights are essentially stripped away (but leaving intact the inalienable right to vote) in a court ruling, it might seem that a discussion of the self-determination rights of a ward would be a bit late.  This is most definitely not the case.

While the rights of a guardian over their ward are typically plenary and unlimited, this does not mean that a guardian can simply ride roughshod over the ward’s circumstances, personal preferences, desires and stated wishes.  There are important legal principles to consider in this context.  The Latin term “parens patriae” is the fundamental basis for guardianship law, the basis for a court to curtail an individual’s civil rights and name another to act on the person’s behalf.

Self-determination also factors into self-determination theory, which offers an explanation for human motivation in psychology.  This theory explains motivation in two different forms: autonomous or controlled.  This is relatively well-studied in the context of employment and employee motivation, but I couldn’t’ find many works on this theory in the elder protective proceedings setting.  Why wouldn’t it be as straightforward as the “four S’s” that motivate us as described in this Forbes article that we want to feel: successful, socially valued, smart and structured.  I realize this is a stretch when I am talking about someone with advanced dementia for example, but I think that many individuals who have trouble thinking could benefit from this approach to honor the autonomy such that it is.  Perhaps if we could think a bit more practically about how to apply the upper end of Maslow’s hierarchy: esteem, love and belonging. . .

Self-determination has a longer history in the disabilities rights legal context, and elder law and protective proceedings share many of the same principles.  Probably the most well-known is the doctrine of least restrictive alternative.  That term which borrows from the more broadly known “least restrictive environment” which is a common thread of much of the federal law of special education and relating to rights of the disabled.

So back to the self-determination of a ward.  What we are looking at is self-determination in a highly personalized relationship – that between guardian and ward.  The analogies offered above, from psychology and in the motivation context do offer some food for thought here, but I think the fiduciary relationship is still the most applicable baseline.  This means a subjective standard of looking at motivation and conflict in the guardian-ward relationship and how it plays out in the larger implications of the ward’s ongoing right to self-determination.  I think the incapacitated ward, like people with dementia in general, have much to teach those of us who are not afflicted with such trouble with thinking and managing our behavior.

After appointment, the guardian is accountable – to the ward, to interested persons (usually other family members) as well as to the court.  Under Colorado law, the guardian is a fiduciary and is held to a heightened standard of care.  The Colorado Bar Association has a couple helpful brochures available for guardians and for conservators.  It explains the fiduciary duties of a guardian to include the following: a fiduciary duty to the ward, meaning that you must always act in the best interest of and with undivided loyalty to the ward; make efforts to include the ward in all decisions and encourage self-sufficiency; avoid transactions that cause a conflict of interest; and make all decisions with care and prudence.   Acting in the best interests of the ward means also that a guardian is expected to consider the ward’s known and reasonable desires and personal values when making decisions on behalf of the ward, and must otherwise become and/or remain personally acquainted with the ward.

I think what the fiduciary duty covers generally here is an instruction to honor the ward’s dignity and rights (such that they are) to self-determination – to allow the ward a portion in exercising autonomy to an appropriate extent.  Here I bristle at the thought of our current obsession with the person’s safety, as if safety were the only thing that mattered in the care (or warehousing) of elders with dementia!  Safety is without doubt important, but it must be considered in context of quality of life and a person’s dignity.  I’m thinking of part of the Rumi poem “A Community of the Spirit,” on this point:

Why do you stay in prison
when the door is so wide open?

Move outside the tangle of fear-thinking.
Live in silence.

Flow down and down
in always widening rings of being.

Self-determination and autonomy – I’m wondering out loud whether it is possible to consider these important baseline values in a holistic context and not just as what the guardian owes the ward, or what the expectation of a court is relative to the guardian’s actions.  Self-determination is simply too important to not take seriously in the guardian-ward context.  I first wrote about this important right of self-determination of elders in the context of participation in mediation in an article I published in the March 2010 (volume 39, no. 3) issue of The Colorado Lawyer entitled “Elder Mediation Comes of Age in Colorado.”   Until the next post . . .

© Barbara E. Cashman 2016   www.DenverElderLaw.org

 

 

 

 

 

 

Guardianship of an Elder – Some Important Considerations

Delicate Flower

Delicate Flower

As the number of retirement age baby boomers continues to rise, we continue to grow our unprecedented proportion of old people in our population.  What does this mean for our future?  Well, lots of different things, but I’m focusing on an often neglected side-effect of our longevity: the likelihood of incapacity.

Capacity itself is a broad topic in the law.  In my area of practice – we typically follow the question whether someone has (or had) capacity with the focusing query – capacity to do what?  Execute a power of attorney, sign a will, direct one’s medical care?  Here’s a link to a document from the American Geriatrics Society about medical capacity that is an excellent Q&A on the topic of capacity in the medical decision-making context.

There are often many ways to enhance someone’s capacity if they are facing cognitive challenges.  Some of these enhancements can assist greatly where the deficit in capacity is of a more temporary nature, such as confusion.  Confusion can have a wide array of sources including alcohol or substance intoxication; poor heart or lung function (resulting in e.g., hypoxia); malnutrition or dehydration; blood sugar too low or too high; medications not managed effectively or withdrawal of medication; head injury or other bodily trauma; infection. Insomnia; and a number of other diseases and conditions.  I mention these to contrast them with a kind of capacity that is typically not temporary and likely to diminish further as the underlying disease progresses or as the condition worsens.  The kind of incapacity I am considering is not the temporary or reversible kind.

There are a number of medical conditions or diseases which can affect capacity as well.  For example, there are several types of dementia including Alzheimer’s disease, alcoholic dementia, vascular dementia, frontotemporal dementia (Pick’s disease is one example) and Diffuse Lewy Body dementia which can occur with Parkinson’s disease.  For our purposes in Colorado, one relevant statutory reference is to C.R.S. 15-14-102(5), which concerns the definitions for protective proceedings:

“Incapacitated person” means an individual other than a minor, who is unable to effectively receive or evaluate information or both or make or communicate decisions to such an extent that the individual lacks the ability to satisfy essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance.

In the context of the medical conditions and diseases which cause dementia, a major goal of a capacity determination is to not just identify the disease, condition or injury which is the cause of the ongoing dementia (and which often progressively worsens over time), but to identify and promote the AIP’s self-determination and other rights to the extent possible.  Planning for the future can typically be accomplished even after a diagnosis or dementia such as Alzheimer’s.  The Alzheimer’s Association has a helpful brochure here.

While a person with dementia faces a host of challenges to their autonomy and self-management of activities of daily living (ADL), appointment of a guardian for an alleged incapacitated person need not necessarily be a self-fulfilling prophecy in that taking the AIP’s rights away makes them less competent.

Here is a link to the Colorado Judicial Branch’s website which contains helpful information about adult guardianship in Colorado and the probate court process known as “protective proceedings.”   The Guardianship Alliance of Colorado also has helpful resources, particularly pertaining to the expectations and duties of a guardian for an adult.  Finally, here’s a link to the 2016 Senior Law Handbook, published by the Colorado Bar Association.  Chapter 26 is devoted to guardianship of adults.

So what is the overall nature of an adult guardianship proceeding?  It is called a protective proceeding because its underlying aim is to protect the well-being of vulnerable adults.  This protection comes at a steep price however, the near complete stripping of civil rights of the AIP.  The ward will retain the right to vote, however.  So what is the task of a petitioner (the person seeking a guardianship) and what is the court’s role?  Within the context of protecting a vulnerable individual and based on all the cognitive and other deficits which prevent the person from functioning at an autonomous level, there are many losses sustained.  Amidst these losses, however, is the person’s ongoing right to self-determination.  Self-determination is an ancient right as far as the law goes, part of the inviolable rights which set apart humankind from other beings in the animal kingdom.

Self-determination is something not often discussed except in the most desperate of circumstances, hence its relevance to this discussion.  A basic precept of international human rights law (particularly in the post-colonial era), in our country’s history, it has been relevant to American Indian peoples, the disabled and other marginalized groups in our legal history and is enshrined in many countries’ constitutions.

In the future, I will be taking a further look at how the self-determination of a ward (after judicial determination of incapacity) can be supported by a guardian.

© 2016 Barbara Cashman  www.DenverElderLaw.org

Social Media Abuse of Elders

Contrast

Contrast

 

I recently came across this horrifying article published Monday in ProPublica, entitled “Federal Health Officials Seek to Stop Social Media Abuse of Nursing Home Residents.”  It seems that some staff members of nursing homes are publishing photos, audio and video recordings of some residents in the social media like Snapchat, Facebook or Instagram, or sent in text messages as multimedia attachment.  These pictures, audio and video files often depict elder residents of the facilities s in demeaning and humiliating ways so as to result in mental abuse.   The Centers for Medicare and Medicaid Services has recently sent out a memorandum concerning this to the State Survey Directors.

Do the skilled nursing facilities have prohibitions against such intrusions in place?  Some evidently did not, but there can be little doubt that nearly all will have such protections in place soon in light of these disturbing developments.  Here’s an article about such violations in Ohio nursing facilities.

The CMS memo referred to above defines mental abuse as that abuse which:

[M]ay occur through either verbal or nonverbal conduct which causes or has the potential to cause the resident to experience humiliation, intimidation, fear, shame, agitation or degradation.  Examples of verbal or nonverbal conduct that can cause mental abuse include but are not limited to: nursing home staff taking photographs or recordings or residents that are demeaning or humiliating using any type of equipment (e.g., cameras, smart phone, and other electronic devices) and keeping or distributing them through multimedia messages or on social media networks.  Depending on what was photographed or recorded, physical and/or sexual abuse may also be identified.

ProPublica has been following this following these developments for many months and this article from December 21, 2015 details some of the incidents this mental and physical abuse of incapacitated elders perpetrate by the nursing home staff members.  In a case in New York where a nurse aide took photos of an incontinent resident’s genitals covered in fecal matter and shared them with another staff member on Snapchat, he was fired and pleaded guilty to a misdemeanor count of willful violation  of health laws.  What I found particularly disturbing was the comment of one home’s administrator to ProPublica that “[t]echnology is a problem for us, for everybody, these days… The resident involved was not harmed but certainly it was a serious incident.”  Are incapacitated nursing home residents not entitled to any human dignity and to be free from such exploitation for someone’s entertainment?

One of the incidents described by ProPublica is from August 2015.  It occurred in a rural area of Colorado and involved a youth volunteer at a nursing home who took a selfie which showed a 108-year-old resident urinating.  The volunteer apparently shared the photo with her friends at school and the facility did not learn of the offending photo until months later.  The volunteer was not monitored by the facility but did report to the local police, and was later charged with invasion of privacy.

What is human dignity when it cannot be defended by an incapacitated elder? What is human dignity when it is not readily apparent or recognized in places where people are institutionalized for the paramount concern of their safety?

Dignity, as in the legal right, is not easily defined.  In fact, you would be hard pressed to find many references to it in our laws.  International law, specifically the international law of human rights, has much more to say about human dignity, but that is another blog post!

I will close with just a couple observations and questions. . . .

If humiliation is the opposite of being treated dignity and respect, is our system of laws really equipped to deal with this type of new frontier of the rights of incapacitated persons to be free from intrusions by others who humiliate them for sport or humor?

Is the dignity of or respect for elders a right in this context or is it overshadowed by our concerns for safety, and how does an incapacitated elder’s diminishing bailiwick of autonomy factor into this equation?

On this note, here is a link to an interesting article about the dignity of elders.  More to come on this very challenging topic.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

Death – the Ultimate Concern of Elderhood

Chimayo Cherub

Chimayo Cherub

In this post in my series I will revisit the notion of a good death in the context of how we see our lives.  So I’ll start with a question: What do we have or what is it that is ours in the sense of that being part of our life?  I’m posing this in terms of a sense of meaning, an awareness or appreciation of ultimate meaning of or purpose to one’s life – as we face our mortality and everything in between along our life’s path – like illness, grief and profound life crises (to name just a few).

The world breaks everyone and afterward some are strong at the broken places.

Ernest Hemingway

Death is the ultimate question in this regard – the “all stop” for all that has happened in our lives, all that we have participated in to create our lives.  Every living being eventually dies as each of us will one day pass away, but how do we see this ending as part of our own life, in terms of one’s own experience of isolation, connection and relation to others?  Can our life prepare us for our unknown ending? Whether elderhood – either or own or our participation in other’s elderhood (as adult children for example) or our longevity prepares us to be resilient or brittle in this regard is a difficult question indeed.  One writer has observed that “human beings primarily collect” and these collections of experiences (and things as representations of experience) form our identity and notion of self, but Jacques Lusseyran also observed that “seeing is responsible for the prevalent conviction that we shall understand and completely recognize the world when we progress from one form to the next, from one phenomenon to the other.”  In his posthumously published collection of essays “Against the Pollution of the I,” (2006: Morning Light Press) Jacques Lusseyran (who lost his eyesight in childhood) noted that “[w]hat simply has to be understood is that seeing is not the work of the eyes alone.” Id. At 58.  Lusseyran is keenly instructive on the point of the sighted taking for granted that what they see is all they see, and is all that exists.  Lusseyran notes further

I believe that blindness has its own function.  It has the tasks of reminding us that the despotism of one sense, sight, is unjust, and of cautioning us against the form of perception prevalent today.  And, further, it is the task of blindness not only to recall to memory the origin of all knowledge, but also to remind us of the wonderful gift that permits a mutual exchange between other forms of perception and perceived pictures.

From “Blindness, a New Seeing of the World,” in Against the Pollution of the I at 64.

As we examine the place of elderhood and our own inevitable demise, can Lusseyran the blind writer who describes the seeing he experiences as not limited to the visible surface of things, or of people, point out to us the limitations of this superficial mistaking of what is real?  I would submit that this has become a kind of collective amnesia, this affliction of our death denial and our obsession with youth, particularly looking or appearing young.  I might be digressing just a bit, but it’s hard to say!

A person without an inner life is a person with nothing added: an empty sack which therefore cannot be filled and cannot remain standing.

Johannes Tauler

So, back to the question posed at the end of my previous post, about the difficulty of adjusting our thinking about human frailty in the face of aging.  This is a fundamental question for which few of us have prepared.  In our collective viewing of the superficial aspect of old age, we have come to largely identify aging as a medical problem or challenge – to be managed or overcome.  Is this failure to see the person in front of us, the insistence on “seeing” only the superficial aspects of who they appear to be our own form of collective blindness?  In the medical context, amidst the prevalence of hyper-specialization, is the medical care for elders largely a habitual reaction to some piecemeal medical problem a failure to see the big picture of a human being as a person and not as some collection of medical difficulties?

I am still reading Katy Butler’s excellent book “Knocking on Heaven’s Dorr” and in her penultimate chapter “A Better Way of Death,” she describes the reactions of many readers to her New York Times Magazine article about her father, his pacemaker and its complications to his dying process.  It took me right back to the events leading up to my mother’s demise.

My mother was a strong and healthy 85-year-old woman who had a couple years prior survived a pain in her thigh – which turned out to be a staph infection resulting from the titanium which was surgically pounded into her broken femur and was (after many months of complaining to her doctor) after a proper diagnosis removed.  But she was not in a good place when she started thinking about and demanding a hip replacement.  After all, she had survived two previous knee replacements – one in her 60s and a second in her early 70s, so she was a veteran of such surgeries.

But in the previous year before her longed-for hip replacement she had lost her husband of 59 years and two of her three sisters.  Did her surgeon or her primary care physician ever consider these details? I will probably never know.  It was not part of the provision of her informed consent, that much I know. Keep in mind that under our Medicare system, doctors get paid well to intervene in such ways, even though her surgeon was someone otherwise known as “conservative.”

I will not soon forget the look of indignation on the surgeon’s face when I (her health care agent and only daughter) asked him about a DNR (do not resuscitate) in the event something went terribly wrong in the surgery.  This on the morning of surgery after I had done some wrangling with the anesthesiologist about which anesthesia cocktail would be used as I was insistent on using the least invasive method first.   Within two months she was gone from this world.

To be continued. . . .

© 2016 Barbara Cashman  www.DenverElderLaw.org

Successful Elderhood and A Good Death

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Mercury and his Caduceus

This is my second installment on the theme of successful elderhood and its obstacles.

In this post, I am revisiting the theme of “a good death.”  I first wrote about this in 2013 and recounted my experience with my father’s death at his home in 2010.  As I write this post, I am reminded that this theme is picking up more attention.

Perhaps I will start with the practical first – how does one, with her or his own planning or good fortune, as well as with the assistance (and sometimes this is a difficult term to use in this context) of loved ones or others – pull off a good death?

Let’s start with some numbers here.

Here are some recent (released 4/16) figures from the U.S. Centers for Disease Control and Prevention which shed light on older persons’ health and mortality.  Looking at the data in NCHS data brief No. 182, from January 2015 – it states:

From 2000 through 2010, the number of adults aged 85 and over in the United States rose 31%, from 4.2 million to 5.5 million, and in 2010, this age group represented almost 14% of the population aged 65 and over (1). It is estimated that by 2050, more than 21% of adults over age 65 will be aged 85 and over (2). Given this increase, adults aged 85 and over are likely to account for an increasing share of hospital utilization and costs in the coming years (3). 

 This is an interesting report – it offers a solid basis for my concern when I hear of one of my old (85+) clients being hospitalized!  When we look at hospital admissions for the old of the old (folks 85 and over), we see the top six causes (for 2010) for hospitalization as: congestive heart failure, pneumonia, urinary tract infection, septicemia, stroke, and fractured hip.  The likelihood of hospitalization for any type of injury for the 85 and over cohort was higher than the rate of either of the 65-74 or 75-84 groups.  The same group of 85 and over was also the least likely to be discharged to home and the most likely of the three groups to be discharged to a long-term care facility or to die in the hospital.  Of note here is the 6% figure for deaths, which is double that for the 65-74 group.

How many septuagenerians and octogenarians plan for or talk with others (from whom they will need support for their decisions and choices) about “a good death?”  Well, I haven’t seen any real statistics on that!  Keep in mind that Medicare recently (in January of 2016) started paying doctors for having an end-of-life consultation with their patients, so that seems like a good start. But there may be a glitch to that simplicity, as information used in a recent Forbes article shows that almost a third of doctors say that they don’t really have a formalized system of talking to patients about such matters and the same percentage (29%) they haven’t had any training on how to talk with patients and their families about such topics.

So with this rather bleak picture of the status quo before us, how is it that we can better come to grips with forging a better – more humane and dignified – path to death?  Where are the sources of this helpful information? Well, we can start by listening to the dying!  Keep in mind that dying isn’t simply a medical process, a failure of intervention or curative   measures – it is a physical process which is inevitable for every living being.  Palliative and hospice care offer  means toward that end in the medical context, but as we know there are often a number of emotional, legal, financial, psychological and cultural obstacles which can appear at the end of one’s life.

I liked this article from The Greater Good which offered the following points under the subtitle “how to die well:”

  1. Experience as little pain as possible;
  2. Recognize and resolve interpersonal conflicts (it lists Dr. Ira Byock’s Four Things here) to say  – I love you; thank you; I forgive you; and please forgive me;
  3. Satisfy any remaining wishes that are consistent with their present condition;
  4. Review their life to find meaning;
  5. Hand over control to a trusted person, someone committed to helping them have the kind of death they desire;
  6. Be protected from needless procedures that serve to only dehumanize and demean without much or any benefit; and
  7. Decide how social and how alert they want to be.

These seven means seem simple enough – but remember the big difference between simple and easy! Can any of us really know when death is near, when the dying part of our life or another’s is taking place?  If we start considering the possibility, then we see opportunities.  But these questions obviously don’t have definitive answers!  For all of our talk about health care self-determination, we – not just the individuals making the advance directives, but also upon those on whom the dying rely for assistance, have precious little experience with really thinking through the “what happens if” and the “what happens when” scenarios.

So I will close this post with two challenging questions –

How difficult will it be for someone over 85 to not be transported to a hospital for treatment at the end of a long and difficult illness  – particularly if the trip to the hospital is for the treatment of an injury that is not related to the terminal or chronic illness?

How difficult is it for us to adjust our thinking about these things as we age and become more frail and less able to withstand the medical interventions which were more likely to be restorative or curative in our younger years?

PS Don’t forget that Friday is Denver’s Senior Law Day! The morning event is scheduled for the PPA Event Center and you can buy your tickets here.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

Colorado Aid in Dying – Coming to Your November Ballot?

 

Seated Chairs

Seated Chairs

This post is an update on the reincarnation of the proposed legislation in the Colorado End of Life Options in its new form as a ballot initiative known as Colorado Aid-in-Dying (Initiative #145).  In order to qualify for the November ballot, 98,492 valid signatures must be collected by August 8, 2016.  This may be a situation for which the ballot initiative was designed, where the public can exercise the power to create a new statute.  Colorado is one of a number of states – mostly west of the Mississippi- that allows initiated statutes and amendments. In case you’re wondering how to go about such an effort, The Colorado Secretary of State offers a guide!  The website ballotpedia lists the text of the initiative as the following:

Shall there be a change to the Colorado revised statutes to permit any mentally capable adult Colorado resident who has a medical prognosis of death by terminal illness within six months to receive a prescription from a willing licensed physician for medication that can be self-administered to bring about death; and in connection therewith, requiring two licensed physicians to confirm the medical prognosis, that the terminally-ill patient has received information about other care and treatment options, and that the patient is making a voluntary and informed decision in requesting the medication; requiring evaluation by a licensed mental health professional if either physician believes the patient may not be mentally capable; granting immunity from civil and criminal liability and professional discipline to any person who in good faith assists in providing access to or is present when a patient self-administers the medication; and establishing criminal penalties for persons who knowingly violate statutes relating to the request for the medication?

Yes, that is quite a sentence, isn’t it?! An Aurora pediatrician, Dr. Michelle Stanford, has filed a motion for rehearing with the Colorado State Title Setting Board, regarding the Title of Initiative #145, on the basis that the title and submission clause do not fairly express the true meaning and intent of the proposed state law.   You can read the opening brief before the Colorado Supreme Court here.   As to the form of this ballot initiative, keep in mind that Washington voters approved their state’s Death With Dignity Act by means of a statewide ballot initiative in a general election in November of 2008 (that was the second try at voter approval – the first attempt in 1991 was unsuccessful).

So – to the language of the initiative. . . .  We are back to the term “mentally capable” again, which is not otherwise found in Colorado law.  It is not clear to which part of the sentence the term “mentally capable” refers, which is troubling because there is no requirement of counseling in this initiative’s question, only for an evaluation in the event one of the physicians believes the patient may not be “mentally capable.”  This forms the basis for some troubling ambiguity.  Is it not capable to give informed consent to understand the life-ending nature of the prescription sought or – not capable due to some depression or other contributing mental health or other reason?  I think both the question and a clear answer matter greatly!

I will reiterate again my reservations about the dearth of reporting and other requirements which were lacking from the second version of the proposed legislation, which was killed in the legislature in spring of this year.  This question of physician assisted death is not at all likely to go away, and the debate could certainly benefit from less rhetoric and more practical considerations.  Keep in mind most states still have outright prohibitions on assisted death or suicide in either their statutes or based on case law. A handful of states (Wyoming, Nevada, Utah, West Virginia and North Carolina) have no specific basis in statute or case law and are ambiguous as to the legality of physician assisted death.  In 2009, the Montana Supreme Court in Baxter v. State of Montana, construed that state’s Terminally Ill Act in such a way as to allow physician assisted death.

With a goal of considering what is the dignity sought after in the physician assisted death initiative – a reprieve from intractable terminal pain and/or the dignity of choosing the time and circumstances of one’s demise?  Interestingly, a fair number of Oregonians and Washingtonians who availed themselves of their states physician-assisted death laws did not actually die from the lethal cocktail of medications.

I recently read a piece by the former Boston Globe columnist Ellen Goodman, published in the June 12, 2016 Denver Post.  She is also the founder of The Conversation Project, an invaluable resource for people looking to make advance health care directives and other important arrangements regarding end-of-life care.  I refer many people to the Conversation Project website.

A re-evaluation of the way Americans die is already underway (thank goodness).  To the extent that the physician assisted death debate sheds light of the need for ALL ADULTS (read: anyone over 18 years of age) to think about and discuss their end of life wishes and communicate them to others in meaningful ways, then this debate is a productive one indeed.  For many adults that means not simply filling out some living will form at a senior center and then placing it in a safe deposit box or secret location where it will only be discovered after your death!

I still talk to folks who do not wish to have the end of life discussion because  . . .  well, it’s not a lot of fun, and besides – they don’t have a life threatening illness. . .  Based on my experience, the point when someone is in the throes of a diagnosis of or treatment of a life-threatening illness is the worst time to have that conversation.  Do it now!

© Barbara E. Cashman 2016   www.DenverElderLaw.org

Successful Elderhood and Its Obstacles

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A Sideways Approach

 

I’m working up a new series of posts on the many obstacles along the path of what I will call “successful elderhood.”  Being that I am such an optimist, you might be wondering why I’m using the more formidable sounding “obstacle” as opposed to a much friendlier sounding term like “challenge.”  The Merriam Webster online dictionary defines obstacle as:

Something that makes it difficult to do something; an object that you have to go around or over: something that blocks your path.

I use the term “successful elderhood” because I know it is a loaded one! How we talk about aging reflects our thinking about it and often also our feeling toward it.  Is it merely a decline, a forced slowing down with no redeemable benefits  – or is it a process that can be incorporated into the accumulation of wisdom – for the benefit of the individual as well as their community?  Instead of quoting words of Viktor Frankl’s wisdom, I’ll quote the late theologian J. Sidlow Baxter, who asked

What is the difference between an obstacle and an opportunity? Our attitude toward it. Every opportunity has a difficulty, and every difficulty has an opportunity.

Obstacle and opportunity? Well, there’s a good one! I will try and use this as a template for paying attention to the lenses through which we view aging and elderhood.  Of course I’m showing my bias already, just from using the term elderhood – I’m presuming there is a stage of human development that is capable of a fuller embrace of the unknown, of the mysteries of life, that can allow us to love the  lives we have to live, despite all the odds and opinions to the contrary.  This certainly is not an easy path, it is probably beyond the tee shirt slogan “getting old is not for sissies,” so I’ll quote the Sufi poet Rumi here:

A heartbreak shakes the yellow leaves from

The branch of the heart

So fresh leaves can go on growing . . .

Heartbreak pulls up the roots of the old happiness

So a new ecstasy can stroll in from beyond.

Heartbreak pulls up all withered, crooked roots

so no root can stay hidden.

Heartbreak may pull many things from the heart

But in return it will lavish kingdoms.

From: Andrew Harvey, The Return of the Mother (1995) at 156.

This idea of “successful elderhood” brought me back to a great book I (mostly) read several years ago – Carol Dweck’s book Mindset: The New Psychology of Success (2006: Random House).  Dweck, a psychology professor at Stanford, wrote this compelling book based on her many years of research on motivation and other important topics.  Much of the book readily applies and is aimed at motivating kids and young people toward building the successful trait of resilience, and away from the ossifying talent-obsessed entitlement way of thinking about who we are and how we operate in the world.  Her basic premise, reflected in the title “mindset”, distinguishes the fixed mindset from the growth mindset and her work shows the advantages and offers much practical advice about overcoming obstacles (instead of ignoring or denying them) with a growth mindset.  Feeling bad about one’s situation does not mean that one is not able to take constructive action.  See Mindset at 221-24.

Whether we look at an obstacle as an external setback or an internal one can make all the difference.  If we change the lens through which we look at aging, that all our hard-earned capabilities are being taken away from us by some external subjective and unpredictable process known as “aging” . . . .  then perhaps all we are really looking at are challenges, challenges to our thinking in some fixed and no longer relevant context, a sense of entitlement to what we have earned, which invites us to go beyond those “yellow leaves” into a new and unfamiliar territory.

I especially liked what Dweck wrote about the growth mindset and self-control: “Then there are the setbacks.  They [people in a growth mindset] know that setbacks will happen.  So instead of beating themselves up, they ask: ‘What can I learn from this?  What will I do next time when I’m in this situation?’  It’s a learning process – not a battle between the bad you and the good you.”  Id. at 235.

Dweck’s approach is refreshing and liberating and has much to offer in support of a developmental view of elderhood.  Here’s a TedxNorrkoping video in which Dr. Dweck talks about “the power of yet.”

I will close for now and look forward to my next post on Elderhood and The Economy of Gratitude.   I will tip my hat to the motivation provided by my summer reading list, which has included Robert Emmons’ Gratitude Works!, Atul Gawande’s Being Mortal and Katy Butler’s Knocking on Heaven’s Door: The Path to a Better Way of Death.

Peace out!

©Barbara Cashman  2016   www.DenverElderLaw.org