Yours, Mine, Ours and Theirs – What Kind of Estate Plan?

denver elder law

A Waiting Bench

 

Last week I zeroed in on the importance of having in place health care advance directives for blended families and for this week’s fourth installment, I am going to go back to the big picture.  Part of the post-modern impatience which afflicts so many of us is to rush to a solution to a problem which is often not fully identified and consequently, many options which may have more comprehensively addressed the situation are never considered.  This is the old saying “don’t just do something, stand there!”  I offer that somewhat tongue-in-cheek because I know this is foreign to most of us, who are much more comfortable with our roles as “human doings” as opposed to “human beings!”

So let’s consider first the background for this big picture with a questions: what kind of family are you?

I recently executed a will for an elder client who mentioned to me that, besides providing for her five children, she considered in many ways as a son a man for whom she had served as a foster parent.  She had made provision for him with an insurance policy.

There are many different types of family just as there are many different types of families.  There are those “families of origin” which are usually those into which we are born and sometimes adopted.  Then there are “families of creation” – those which we choose by the relationships we have, be they biological children or other children, partners, spouses, extended family and friends.

So, back to the question posed above. . . the first obvious question is:

Are you married?

What kinds of joint or separate assets accounts do you own and how will those assets devolve (legal term for be inherited by) upon your surviving spouse, your children or stepchildren, and others for whom you wish to provide?

Do you have a marital agreement which often helps inform the disposition of property in the event of divorce and/or death?

And if you are not married . . .  then what?

Well, quite honestly – this is where things can get much more interesting.  Where the institution of marriage can provide much clarity as to whom will inherit a deceased person’s assets, a lack of a marriage can create many difficulties in long-term relationships if certain measures are not taken.  Many of marriage’s “protections” are evident in the law of intestacy, set forth in our probate code, which provide a myriad of extras available only to a spouse.  There are also protections which allow a surviving spouse to “take against the will” of the first to die spouse if the surviving spouse is qualified to do so.  (This is somewhat complicated, so I will not explain further at this time.)

Have you and your partner ever “held out” as spouses? Then common law marriage might be applicable.  Contrary to some modern folklore, there is no amount of time alone of cohabiting that is sufficient to support the existence of a common law marriage.

Are you and your partner clear about remaining unmarried to each other? This sounds odd, but there are many reasons couples do not wish to marry.  I know of one couple that chose for many years not to marry simply because they were afraid of (read – unfamiliar with) the legal consequences of marriage on their children’s rights relative to the step-spouse!

Couples will sometimes enter into agreements with each other to delineate the boundaries of their relationship.  Some of these might include: a nonmarital agreement; a living together contract; or perhaps a designated beneficiary agreement.  There are a number of ways in which an unmarried couple can solidify their relationship and many of the legal uncertainties surrounding it by simply executing such agreements.  Of course, before these agreements can be entered into, discussion must be had.

As we Americans are living longer than we ever have, perhaps it is time to think a bit more about our living arrangements and the relationships on which they are based.  More on this later!

© 2016 Barbara Cashman  www.DenverElderLaw.org

Yours, Mine, Ours and Theirs – Health Care Advance Directives

Not quite empty nests!

Not quite empty nests!

 

I am continuing my series of posts on the theme of blended families, adult children and stepchildren, and some of the challenges of estate planning within such a modern context of family relationships.

In my first post, I gave an outline of some of the terrain I would be covering here.  In the second post, I looked at some of the unique questions posed blended family estate planning, along with the potential for conflict if nothing is done to plan.  The last point discussed in the second post concerned differing styles of coping with or managing conflict and the importance of identifying what is important as well as knowing the challenges.  A colleague emailed me after seeing the post, commenting “It’s as if you were listening  to my recent conversation with my husband of 18 months!”

Okay, let’s get started with the third post already!  Here’s a link to some helpful information about stepfamily members and inheritance.    I’m including resources here about inheritance expectations of children, stepchildren and so forth because they are part of the equation, they are the “theirs” which I include in my title for the series.  In my experience working with blended families, the “theirs” is always part of the picture, whether the expectations of adult children are acknowledged as such or whether they are  described and set forth from the parent’s point of view in the estate plan.  Hence my inclusion of that term “theirs” – even if the adult kids are not at the table so to speak…. So getting back the content of this post, let’s consider some of the  “what happens if” and the “what happens when” scenarios in the blended family or some “de facto[i] version of it.

Getting back to my original premise about blended families estate planning having no “template” like the historically “traditional” American family did, it is worth considering first – what kind of blended family are you? Do you have: kids from both sides; aging adult parents; older, established adult children; any special needs children to provide for; an inheritance from a deceased parent or other relative which you wish to keep in your line of descendants; are long term health care considerations important; and lots of other questions.  Most of us like to go directly to problem solving mode when we face a challenge.  What I think is important to consider as a preliminary matter here is holding off on that step until you determine what are the important values which will inform both your individual and your joint decision making.  If you get to problem solving too quickly, there will be likely misunderstandings about the purpose and nature of what was decided and, of course, the utility of such decisions.  I should also add that, just like the rest of us over the age of 18, we should be having these conversations about who we want to make decisions for us in the event we are unable and expressing our end of life wishes to family members and loved ones.

I’m focusing on one particular issue in today’s post – advance directives for health care.  “Advance directives” include two important documents: a health care (medical durable) power of attorney (POA) and a living will.  These two documents work together for the most part, but from my perspective, if you only have one of these documents – execute a health care POA because that document names a person to make decisions for you in the even you are unconscious, unable to communicate or otherwise unable to provide informed consent for medical care.  Remember, health care POAs are, by their nature, what we call in my line of work a “springing” POA – meaning that the agent named in the document is only empowered to act as agent if the health care provider determines that the patient/principal is unable to give informed consent.  An agent cannot give informed consent for a procedure when the principal is otherwise able to provide informed consent.  This is informed consent matter is important, I have previously written about it in the context of the Nuremberg War Crimes tribunal.

I don’t usually like to use fear as a motivator to cause people to act, but a failure to execute a health care POA and name an appropriate agent to make decisions for you can have dire consequences in the blended family context.  A failure to discuss and plan for either the unlikely or the inevitable can result in conflict between the spouse and their step-children.  This is seldom what people want!

With the health care POA, the principal (the maker of the POA) should carefully consider who is the best person for the job – who is the best equipped emotionally to make difficult decisions and who will be able to effectively communicate with all the necessary parties involved.  Usually, if adult children know that this conversation is taking place with a parent and step-parent, there is a collective sigh of relief.  I suggest continuing the conversation at a family dinner or other event, so everyone is informed of who is named as gent and successor agent, who will be in charge of decision-making and how communication will be conducted.  It goes without saying that this should be an ongoing discussion over the course of our lives!

You can imagine that there have been many difficult lawsuits brought where there was no such document in place or plans were not otherwise sufficient.  Family peacekeeping often involves thinking ahead to avoid conflict, and this is just what advance directives can provide for a blended family.  Here is a link from the CDC with many helpful resources, including the American Bar Association’s Consumer’s Toolkit for Health Care Advance Planning.  In future posts, I will be looking at the financial power of attorney and other useful means to manage our longevity and disability.

And in celebration of our glorious sunshine here in Denver (after a lot of snow over the weekend!) how ‘bout a bit of eye candy?  Check out Colossal’s post about “The House of Eternal Return,” a previously abandoned bowling alley in Santa Fe which now houses a brilliantly colored immersive art installation.  Inside the space is a house, complete with a bathroom with a wavy tile floor.  I think the “eternal return” theme goes nicely with the desire of so many of us to remarry.  Here is that oft-quoted statement from Oscar Wilde about marriage:

Marriage is the triumph of imagination over intelligence. Second marriage is the triumph of hope over experience.

That’s all for now, will continue next time with more details for the ongoing discussion. . .

___________________________________

[i] I use the term de facto here to distinguish from de jure blended family.  Most of my posts will covered married persons, but I do not wish to exclude couples who make other, nonmarital arrangements which often resemble marriage, but without its conventions and protections.  Here’s a good description of the difference between the two legal concepts.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

Digital Assets – Coming Soon to a State Near You!

denver elder law

Cutout Constellation

 

Colorado may soon be getting some legislation in place concerning digital assets in the probate context! Today’s post will look at the benefits of having a digital assets clause in such estate planning documents as a general durable power of attorney or in a will.

Here’s the link to SB 16-88, which is a bipartisan bill entitled “Concerning the ‘Revised Uniform Fiduciary Access to Digital Assets Act,’” or RUFADAA for short.  The RUFADAA has been introduced in 29 different state legislatures so far.  I have already written several blog posts on this topic of “digital assets,” and my most recent one on the topic mentioned the revision of the uniform act by the Uniform Law Commissioners (ULC) last July.  If you’re looking for a bit of background on digital assets, read this post.

Of course I still don’t know for certain whether the RUFADAA will pass (still working at using my crystal ball successfully . . . ), but it seems like it will.  On Monday (2/22/16), it was introduced in the House and assigned to the Judiciary Committee.  The controversies which plagued its predecessor, the UFADAA, have largely been eliminated with the ULC’s RUFADAA.

So to begin, here’s a few helpful pointers.

  1. Specify and distinguish between assets and access

It’s not enough to simply generally describe online or digital assets in a POA or other estate planning document because there are important nuances and details which third parties, upon whose approval an agent acting for a principal must depend, which must be address.  The difference I’m talking about here is identified in the bill’s distinction set forth in §15-1-1502(9), which states a “designated recipient” means a person chosen by a user using an online too. To administer digital assets of the user,” and §15-1-1502 (10) “digital asset” means an electronic record in which an individual has a right or interest . . . .

Keep in mind that some internet service providers already provide their own online tools by which a user can designate individuals who are authorized to receive the content of a user’s account in the event it is inactive for a period of time determined by the internet service provider (ISP).  On Facebook, for example, this is known as a legacy contact.

In this circumstance described above, the fiduciary for a decedent estate (a/k/a the personal representative in Colorado) or an agent under a POA must contend first with the user/principal’s specific direction (if it exists) and to the extent that no designation was made by the user/principal, then the governing instrument (e.g., a POA) would control.  Finally, if there is neither a specific direction by a user/principal as to who shall have the power to access nor a POA or other governing instrument, then the standard term of service agreement controls.

  1. Recognize and give priority where applicable to “online tools”

This coordination of designations in an ISP’s online tools with, for example a POA, is an important undertaking for RUFADAA purposes.  If the user (be they a principal under a POA or the decedent in an estate administration proceeding) has already designated a person or persons to have access consistent with the ISP’s online tools, this will take precedence over the estate planning documents.  See the RUFADAA at §15-1-1504.  In this context, it would be a good idea for the user to ensure that the selected agent is not only just the agent for POA purposes but is also a designated recipient as identified above.

  1. Things are continually evolving!

Evolving was chosen over changing because it has a more positive gloss, doesn’t it? The change is ongoing.  These will keep estate planning and probate lawyers on our toes to advise client of developments affecting access with the use of online tools and also ensuring that a user’s selected fiduciary (agent, personal representative, etc.) will have access to the assets as intended by the user.

So – a scenario to avoid would be one in which the user designates one person to have access by naming them a designated recipient, but then (perhaps at some later date, unwittingly) names another and different person as (for example) agent under a POA.  This kind of a conflict will cause problems and should be avoided.  No, this online networked world we live in is not getting any simpler to manage!

© Barbara E. Cashman 2016   www.DenverElderLaw.org

More About Proposed Colorado End of Life Options Act

Italian Arch

Italian Arch

 

After my recent post about this bill in the legislature entitled the Colorado End-of-Life Options act, I was contacted by someone who was concerned that I had omitted some very important information about the proposed legislation.  I am posting further on this topic to provide more detail about the legislation and also to express my concern, as an elder law and probate attorney, about the particular implications of those important details – which I missed the first time around.

The bill contains no requirements regarding documentation and reporting of any of the processes described in the bill.

This is a big departure from the 2015 version of the bill – which contained provisions concerning reporting and documentation for the public health record (Colorado Department of Public Health and Environment) or the patient’s medical record.

Why is this a big deal?

Other states with similar legislation have documentation, reporting and review requirements.  This is for several good reasons, but the two with which I am concerned – protecting a vulnerable population of elders at risk of abuse safe from potential coercion and ensuring their consent to end their lives is one with consent given which is sufficiently sound and documented.  This reporting is to keep track of the many important details surrounding physician assisted death (PAD).  Without reporting requirements, there will be no way to know how the state’s PAD is working or not working.

Elders and vulnerable elders (as defined in Colorado’s mandatory reporting of elder abuse or exploitation law) have not generally been at the forefront of the PAD movement.  However, much of our death-denying and youth-glorifying culture is obsessed with the fear of losing one’s autonomy, losing control over one’s choice – and these fears factor substantially in the PAD debate.  As a civil rights issue, PAD focuses on self-determination and autonomy to allow for an individual’s decision to end one’s life with PAD.

My concern is that a population of elders could be coerced and exploited into ending a life prematurely and without documentation and reporting requirements for PAD, there would be no information to document many important details surrounding  a patient’s death with PAD.  I believe this situation could be used by someone looking to benefit themselves by a terminally ill elder’s PAD.  So what am I talking about . . . really?

In Colorado, we have a “slayer statute,” codified at Colo. Rev. Stat. § 15-11-803.  The statute generally prevents a slayer from profiting from their act of killing another.

Many exploiters of elders use tactics not unlike those of perpetrators of domestic violence.  These can include: isolating an elder from their loved ones or community members so as to make the elder dependent on the abuser; controlling basic life activities like provision of adequate nutrition, sleep deprivation or medication mismanagement; and devaluation of the elder’s dignity and personhood through words and action.

The state of Washington, which has a physician assisted death law as a result of a ballot initiative, also has a “slayer and abuser” statute, which is a rather unique combination.  The Washington slayer statute was amended to extend the slayer statute’s application to prevent financial abusers of vulnerable adults from acquiring property or any benefit from their victim’s estate.  This amendment was done during the pendency of a will/living trust challenge proceeding brought by the adult children of an elder against the elder parent’s surviving spouse, a second wife fifty years the decedent’s junior.  Here is the Washington Supreme Court’s en banc decision in In re: the Estate of James W. Haviland, which concerns this tragic exploitation.

The linking of slayer statutes and elder abuse laws is a relatively recent development.  One aspect of the link is the massive transfer of inherited wealth that has been underway for several years now.  The sad fact is, some folks simply don’t want to wait for the uncertain date when someone dies to inherit from the person.  In my line of work, these folks are referred to as “impatient heirs.”  The vast majority will not resort to violence to accomplish their goals, but it can be difficult to determine this in many circumstances.  Here’s a link to an abstract of a recent article on Expanding Slayer Statutes to Elder Abuse in the Journal of the American Academy of Psychiatry and the Law.

Why am I combining these two issues – the Slayer Statute as it relates to elder abuse and the lack of documentation and reporting requirements in the 2016 bill? 

I don’t think it is too far of a stretch that, if this “End of Life Options” bill were to become law and not provide for ANY record-keeping, documentation for either the individual’s medical record or for the public health record, that this lack of information and reporting could provide a potential avenue for death-hastening abuse of an at-risk elder, who happens to be terminally ill and whose health status otherwise falls under the purview of this bill.  The process described in the bill, devoid of any reporting requirements, opens up a vulnerable population to be exploited by an abuser such that the cause of death could be determined to have been at the terminally ill person’s own hand . . .

In short, I believe the Colorado bill’s lack of safeguards, which could otherwise serve to prevent coercion and consent, fall dangerously short as it relates to the population of elders.  For more information about other states’ existing laws, take a look at the Colorado Health Institute’s piece from January 2016 on this topic.

Here’s a recent and well-reasoned Denver Post article on this topic that focuses on the bill’s lack of requirements for oversight, documentation or enforcement.

This debate is also happening in other parts of the US where similar bills have been introduced.  Here’s a recent article about the assisted dying debate in Canada, where there is a new federal assisted dying law.  I will close for now, but will likely be writing posts to update this very controversial topic.

© 2016 Barbara Cashman  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

 

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

Financial Autonomy, Conservatorships and the Neher Decision

Centennila Chalk Art Festival, with Martin Calomino, artist

Centennial Chalk Art Festival, with Martin Calomino, artist

 

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

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

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

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

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

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

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

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

What to hold onto?

Falling leaves a reminder

A season of change.

 

And the letting go –

What allows the drawing in

Will overtake me.

 

I must discern leaves

From branches, giving what falls

Willingly, in thanks.

 

Only ever change –

Love’s mantra, its face yielding

Secrets of the heart.

 

So I lie still here

Within the deep ground, knowing

What cannot be known.

 

©Barbara Cashman  2015   www.DenverElderLaw.org

 

The Continuing Adventures of the Psychopomp: Grief As Psychopomp

Natural Beauty

Natural Beauty

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

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

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

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

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

Cheetham at 185.

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

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

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

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

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

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

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

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

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

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

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

 ©Barbara Cashman  2015   www.DenverElderLaw.org

 

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

Inside the Rocca Majore

Inside the Rocca Maggiore

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

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

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

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

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

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

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

I like what Vassily Kandinsky wrote about white and black:

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

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

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

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

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

©Barbara Cashman  2015   www.DenverElderLaw.org

 

 

 

Approaching Grief and Grief’s Consolation

www.denverelderlaw.org

Piazza Sculpture in Siena

Life, living and being open to change (whether it is desired is another matter) invariably involve grief, because change – inevitable as it is – often involves grief, a recognition of a loss for something or someone beloved or simply familiar.

I find it odd that so many people use fighting terms and war language in reference to a disease or threatening physical condition, as if it were “the enemy” which must be vanquished at any cost.  This is quite contrary to many other cultures’ acceptance of the inevitability of death.

I found instructive some of the teachings from the Samurai code of conduct, known as bushido and as described by the late Japanese writer (and paradoxical figure) Yukio Mishima in the 1977 Basic Books’ translation of “The Way of the Samurai: Hagakure in Modern Life.”  He observes that when a samurai is constantly prepared for death, he has mastered the Way of the Samurai and if a man holds death in his heart, thinking that whenever the time comes he will be ready to die, he cannot possibly take mistaken action.  What Mishima describes is an intimacy with one’s own death that can help train one’s heart and mind to focus on the life that is right now, in the present moment.

I also think of the Native American saying (attributed to many different tribes and bands as well as to the Lakota leader Crazy Horse) “today is a good day to die.”  Its essence reflects the belief that one should never live a moment of one’s life with any regrets, or leave important tasks left undone. This preparation, which is an acknowledgement of our mortality and life’s fragility and uncertainty, means that it would make today as good a day as any to die.  Implicit in the ability to recognize a “good day to die” is the understanding that one can more easily let go when a life is well-lived, because of course the proper focus here is on the quality of life as a continuation of that life in its ending, in death.

How different this approach is from our death anxiety and death denial of the post-modern age.  Mortality and disease are often seen as the “enemies” in the medicalized model which is so prevalent now for health care for our elders.  We simply want more time – but what do we often do with the time once we get it?  We bargain for more.  Longevity becomes as obsession, a form of greed in some respects because that greed for more quantity of life, not quality, separates us from the “how” of our living, leaving only some length of days for which we should be grateful.  Greed for our quantity of life, and for those experiences that we will miss if our life is “cut short” (at whatever age) – this greed is a form of forgetfulness of our mortality.  To the extent we remember, we often feel “out of control” and anxious due to the uncertainty or our demise – both the timing and circumstances.  I have known one woman who planned the meal for after her funeral service including the menu for the caterer.  How many of us could do that?  Mostly I think we follow what is written in so many Tax Court rulings: “taxpayer died unexpectedly.”

Or perhaps it is simply because we have become rather used to thinking of our physical body as something separate from ourselves somehow, as if it were a medical problem to be managed.  This is in many respects the post-modern mechanistic view of North American longevity and life.

And what of the consolation of grief, or better expressed as “from grief” – the recognition that we are never alone in our grief as there is always someone who has, in their own way, experienced an incalculable and unfathomable loss? This is part of our human condition to be sure, but as Heraclitus observed:

Whoever cannot seek

The unforeseen sees nothing,

For the known way

Is an impasse.

Perhaps he is also addressing a similar choice presented by the entry of life via the narrow gate.

What if grief is not something that “happens” to us that is to be “gotten over” but is rather a fundamental aspect of human activity, of be-ing human?  How might this change how we look at our mortality and our inevitable death?  In this respect, grief can be viewed as an invitation to be more fully human.  We, in this dark age of pervasive objective materialism, where mysteries are stripped away – are challenged deeply by this.  We can’t measure the unseen or the mystery or think it through because it is a quality of being.  This is the domain of the heart – a realm that includes the rational but goes well beyond its rather short tether.

Finally, I’ll close with a good clip to watch of a Canadian friend, Judith McGill, who is a “death midwife.” She was recently featured in a CBC- Radio Canada broadcast and you can listen to it or read it here.

©Barbara Cashman  2015   www.DenverElderLaw.org