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

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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

Part II of Law and Culture’s Response to Death: Where Do We Put Our Dead?

centennial estate planning

Ketring Lake at Dusk

 

This is a continuation of my previous post about “where do we put our dead?” but I am in fact beginning at the end (depending on how you look at it of course!) with the aspect of dying and how this factors into our death denying culture.

In chapter 12 of The Hour of Our Death, entitled “Death Denied,” Philip Aries introduces the chapter with “the beginning of the lie” in which he draws upon ample support in literature for this new development and the beginning of the medicalization of death, which of course persists today.  Looking at Tolstoy’s Ivan Ilyich written in the 1880’s, Aries notes the similarity of the medical lie that cheats one out of one’s own death with an experience he recorded of a priest dying in 1973.  He notes next the progression of the denial into what can be considered many aspects of its present states – the developing and deepening “death taboo” as described by the Englishman Geoffrey Gorer in 1963 (Aries at 575); its emphasis on discreet funerals, a certain indecency of mourning; and as the unwillingness to speak about the inevitable deepens, there enters the triumph of medicalization – the ultimate in estrangement from and incapacity to reckon with one’s own death.

I’m thinking also of another work, this one by B. Hayslip, Jr. and C. Peveto, “Cultural Changes in Attitudes Toward Death, Dying and Bereavement,” (2005: Springer) in which the empowerment and disempowerment choice is presented squarely to the patient in the medical setting.  The question examined included three with widely varying responses, which were further broken down along ethnic/cultural affiliations among Americans.  Most of the respondents stated they would want to be informed by a doctor that they were dying, while fewer responded that it was as important for others, such as family members, to be informed.  The most interesting number was the very small – 4-7% of respondents who related that they had told another person they were dying.  Hayslip and Peveto at 7, 114-15.  Here there is more than ample evidence to let the medical establishment do the “heavy lifting” as it were, relating to communicating a person’s imminent demise.  Age and ethnicity play important roles in how a person, as a member of a community views illness, mortality, old age, dying and disposition of a body and the grieving process attendant to that.  Id. At 78-84.

So with the medicalization of death we have other factors, whether they are causal or correlative is a question for social scientists to research.  What was once a basic fear, as writers like Ernest Becker put it  – the fear of death – has now become complicated with the alienation attributed to the medicalization of the dying process and our estrangement from it as a natural process, as part of life.  The fear is complicated now by an unspeakable anxiety which makes the fear into something much bigger and more complex than it is.  Of course, the medicalization of death is not a factor in death denial in many more traditional cultures and there are important developments in our country relating to the backlash against all of the medical intervention (but then that is another topic!).  Bottom line for my purposes here is that the medicalization of death has contributed to our sense of powerlessness and alienation from our own death and the death of others.  You might of course observe that the sense of powerlessness over death has always been with our kind and I would of course agree, but the alienation and its particular form is both a modern and post-modern phenomenon which I find particular troubling and symptomatic of a greater loss.

Finally, I will take a look at the so-called “green alternative” to burial: cremation.  Both of my parents wished to be cremated and their cremains are inurned at Ft. Logan.  My challenge with cremation is that it seems to be a further extension of the alienation from death.  The body is dispatched to the funeral home or mortuary, which may or may not have its own crematory on site and if it doesn’t sends the body out to another facility for such purpose.  I am reminded of my late aunt’s comment “just cremate me,” which struck me as being similar to “just take out the trash.”  I loved my aunt and found the comment upsetting at the time, even if I didn’t have any qualms with her cremation following her death.  I can’t tell you how many clients I have talked to about cremation and the rather unique issues it raises that many folks have not previously considered during the past where burial at a particular location was the unstated choice for nearly all people.  What container will hold the ashes?  Where will they be kept?  Who will keep them?  What happens to them when something happens to the custodian of the cremains? While cremation affords many more choices than burial to answer these questions and uniquely express the deceased person’s wishes, more often these questions are never answered and people can get stuck with their ex-wife’s uncles remains. . . . !

I haven’t had the chance to watch this PBS series called Dying in America from 2004, but you can watch it here.  Crematory workers are not immune from graverobbing so to speak, a New Jersey funeral director was convicted of selling body parts, while a German crematory employee was allowed to keep the proceeds from some eight years of sifting through cremains for precious metals (to the tune of $800,00.00) because a court ruled that such property belonged to no one.

I guess the biggest issue I have with cremation is the anonymous disposal of the corpse.  The corpse is typically dispatched by strangers hired by the family and the operator of the incinerator is the sole witness to the final dissolution of the deceased person’s physical being.  Yes, it does hasten the ashes to ashes transition, but I have reservations about how the process is undertaken, as if the body as a container is deserving of very little respect.  I just did a search and found that there is a funeral pyre in Crestone, Colorado.  This makes the cremation a public event, as practiced by Buddhist and Hindus of today and a different choice for cremation.

So I’ll end this post with something a little more upbeat (perhaps).  Fresh off the internet . . . Here are the top ten “classic” (I read that as dinosaur) rock songs about death:

Keep Me in Your Heart by Warren Zevon.  I’ve previously posted a link to the youtube of this beautiful number, which Zevon wrote in the face of his own mortality (he had terminal cancer)

Knocking on Heaven’s Door (okay, I switched this fave of mine from another Dylan tune that was listed)

The Last Carnival by Bruce Springsteen (a tribute to two deceased members of the E Street Band)

The Wreck of the Edmund Fitzgerald by Gordon Lightfoot, a beautiful ballad that takes the listener back to a seemingly different time and a relationship which most of us don’t have with tragedy

The Show Must Go On –  by Queen. I watched this video of the meaningful song performed by frontman Freddie Mercury as he was growing progressively weaker with AIDS

Dancing with Mr. D – the Rolling Stones (drug overdose isn’t the only means mentioned)

In My Time of Dying – Led Zeppelin

Tears in Heaven by Eric Clapton

42 – by Coldplay . . .  okay, it’s not classic rock but it’s a band I really like and the number 42 happens to be, as revealed in The Hitchhiker’s Guide to the Universe, “the answer to life, the universe and everything.”

Don’t Fear the Reaper – Blue Oyster Cult (this was #1 on a list I found but I remember this from high school and all the vampire movies popular at that time, so it got demoted in my listing!)

©Barbara Cashman  2015   www.DenverElderLaw.org

 

Capacity and Incapacity in the Health Care Context

Denver Botanic Gardens

Denver Botanic Gardens

In this second installment about capacity and incapacity, I’m looking at capacity in the health care context.  To recap, the fundamental question of “how much capacity is enough” must be answered with a response beginning with “it depends . . . !”  Some of the varying standards of capacity in elder and estate law can be demonstrated among these categories of capacity:

  1. To make a will (testamentary capacity) – including a will with a testamentary trust
  2. To designate a health care agent in a medical power of attorney (MDPOA)
  3. To execute a general (durable) power of attorney
  4. To execute an advance directive (living will)
  5. To execute a revocable (or irrevocable) inter vivos (living) trust
  6. To make a gift to another person
  7. To make a gift of real estate to another person (via a deed)

So you may be wondering how estate planning attorneys manage these different types of capacity determinations regarding their clients when they are engaged to prepare estate planning documents. . . .  Attorneys are well-advised to be cognizant and careful of the different standards so they can effectively represent their clients.  So, you will note that #2 and #4 above relate to the health care context, but there are also other relevant documents that may include the MOST (Medical Orders for Scope of Treatment) form and related medical orders such as a DNR (Do Not Resuscitate). Unlike the standards for capacity in the will, power of attorney, contract and trust-making contexts, capacity in health care is driven by statutory law – not case law or the common law tradition.  You can read a bit more about the history of informed consent in one of my earlier posts.

The Colorado Medical Treatment Decision Act is found at Colo.Rev.Stat. 15-18-101 et seq.  The statute allows any adult with “decisional capacity” to execute a declaration.  “Decisional capacity” is defined in the statute at 15-18-103(6) as follows: the ability to provide informed consent to or refusal medical treatment or the ability to make an informed care benefit decision.  Note that the statute speaks about medical treatment decisions and also health care benefit decisions. Yes, our Colorado statutes cover all the bases here.  Colo.Rev.Stat. § 15-18.5-102 and 103 relate to the health care power of attorney for medical treatment, §15-18.5-104 and 105 (the statutory form for naming the surrogate) allows for appointment of a surrogate decision maker for health care benefits.  Why are these documents so important to have in place?  So that you can name a person in charge and know they will be able to perform an important job for you if you need their assistance.  If you don’t name anyone, there is a vacuum, often a decision by “committee” of family members and perhaps the need for instituting guardianship proceedings in probate court.

The documents evidencing the decision-making authority of various named agents and surrogates in advance directives and MDPOAs are valid in every state of the U.S, and while each state has different laws concerning these important health care documents, they are generally viewed as “portable.”  It is a good idea to keep these documents up to date and current with the laws of the state in which a person resides.  I think it is important to update an advance directive every few years, especially as a person ages, because health care wishes are subject to change, based on one’s outlook and experience over time.  If you aren’t sure where to start in this regard, go to The Conversation Project to begin.  Every person over eighteen really ought to have a medical power of attorney!  This is a simple but powerful document and it is best to have a conversation with your selected agent to make sure (1) they are willing to serve and (2) they know what you want.  I haven’t yet met anyone who wants to be named as a health care agent – charged with life and death decision making authority with regard to the principal (the person naming the agent) – who wants to perform that job without knowing what the principal wants!

One last point for this overview, you might be wondering about those electronic medical records for a person who is incapacitated or has died and an agent or guardian or personal representative is charged with the authority over electronic records?  Colorado law doesn’t specifically address “digital assets” yet, but the Uniform Law Commission’s UFADAA (Uniform Fiduciary Access to Digital Assets Act) is final as of July 2014 and ready for state adoption.  There are grounds to have some privacy concerns in the medical and mental health context of digital assets.  The best method to clarify your wishes about maintaining privacy or limiting access to these records is to execute the necessary documents to name your agent and state your specific wishes – particularly with regard to third party electronic medical records access (agent, guardian, personal representative, etc.).  The best policy to specifically address these concerns in the relevant and applicable documents, and if you don’t yet have these documents, remember that the upcoming holiday season is an excellent time to have the conversation about end of life wishes.

©Barbara Cashman  2014   www.DenverElderLaw.org

 

 

 

 

August 6th Interactive Gathering on The Conversation Project

 

denver elder law

DBG Japanese Garden Stream

 

I recently received an invitation for an event at The Denver Hospice (at their corporate headquarters) and wanted to share it with the community.  I have blogged previously about the importance of having a conversation about end of life wishes (and also the need for documents based on that conversation – like a health care power of attorney and advance directives) as well as The Conversation Project and so this cause is near and dear to me.  I won’t be able to attend this event, but know it will be well facilitated by Laurel Okasaki-Cardos, community educator at the Life Quality Institute.  If you are interested in participating, please email Laurel at lokasaki@lifequalityinstitute.org to get more information or RSVP.  You can also call her at 303-398-6259.

In case you can’t attend the gathering at the Denver Hospice on the 6th, Laurel offers these interactive gatherings for groups of seven or more people – free of charge – if you are interested in organizing one for your community.  Be sure to get in touch with her if you want more information.

©Barbara Cashman 2014     www.DenverElderLaw.org

The Insurance Industry’s Response to our Unprecedented Longevity

Denver Elder Law

Monet Garden Pond with Chihuly Glass sculpture, DBG July 2014

 

This post is about the insurance industry’s response to our unprecedented longevity.  Hmmm. . . . puzzling over the title of this one?  Well, a couple interesting insurance developments have made it onto my radar screen recently and so I thought I’d write a post about them.  I’ll focus on two in particular:

  1.  Flexible long-term care insurance

We used to have a much larger number of companies offering long-term care insurance in this country, about 100+ ten years ago and now it seems we’re hovering around a dozen or so companies offering the policies.  But it is important to note that there are still many misconceptions about long-term care insurance.  Many people still mistakenly think that Medicare will cover this (it doesn’t) and that there will be plenty of Medicaid beds and service providers if they need care (the Medicaid coffers are still shrinking and doesn’t coordinate well with Medicare).  I recently read about the prediction that the Medicare trust fund for hospital benefits will be depleted by 2026.  Ouch! if I’m lucky enough to still be here, I will be eligible for social security benefits the following year.   For a variety of reasons, long term care insurance has never really “caught on” in this country, at least in part due to the misconceptions that someone else will be able to pay for it if we are unable to pay and in need of such care.  It also has to do with the fact that paying for these premiums is for providing the care that we hope we will never need to receive.  But bottom line, it is about not being a burden on your family members – from a financial, medical or emotional perspective.

There are many different types of LTC policies available, with more variety than ever.  This makes it even more important to understand and know what kind of policy it is you are purchasing and that it is the right one for your situation.   As the number of old elders (80+) continues to grow, Long term care insurance still has hurdles in selling to the baby boomers.  What happens if you pay all those years for coverage and then can’t afford the premiums anymore?  What happens if you pay all those years and then die without ever having used any benefits?  These and many other questions are now answered in new and interesting ways thanks to new and varied option for LTC.  A standard feature of most of the new policies is that they provide coverage for home care, which can be more expensive than staying in a facility – so it’s not just “nursing home insurance” anymore.  There are a number of different products available, so be sure to start with some good information about the basics  of how these policies work.   It is a good idea to remember that health care in this country is not cheap, and Medicare and “Medigap” only get you so far.  And in case you’re wondering whether I am trying to “sell” LTC, I’m not – there are still plenty of risks involved in both purchasing the policies and investing in the companies offering those policies.

Bottom line is, the best way to ensure that unforeseen medical consequences do not decimate your financial well-being or that of you spouse as a result of the need for long term care – is to carefully consider your options now so that when you decide to make a choice, it will be a considered one and not made under the duress of crisis.  Thinking about these matters now lessens the burden on your family members or loved ones in dealing with difficulties in the event they arise in an uncertain future.

  1. Longevity Insurance

Where did this new product come from?  Changes in tax rules!  This kind of insurance is essentially protection against running out of money in our ever-lengthening old age.  Since none of us knows how long we will live, whether we will have saved enough for retirement, along with a few other life-altering details along those lines . . .  this insurance looks to have big potential.  Couple that with the emotional attractiveness of annuities, and we’re off to the races!  Check out this recent NY Times article about some of the rules for these policies as retirement tools.  What makes these policies “new?”  The article considers the previous prohibition against using these annuities within retirement plans due to required minimum distribution rules.  With the rule change “workers can now satisfy those rules if they use a portion of their retirement money to buy the annuities and begin collecting the income by age 85.”

But keep in mind that the sky is not the limit here and retirement plan participants can use no more than 25 percent of their total account balances, or $125,000, to buy the annuity, whichever is less.  If you are considering these, you will want to carefully read all the fine print concerning these new vehicles.  What is helpful to know is that, for the Americans that have saved some money for retirement (sadly, only about one-half of American households have a retirement account beyond social security), there are more options available.

©Barbara Cashman  2014   www.DenverElderLaw.org

 

 

Elderhood as a Life Stage: The Power of Naming (part 3)

Denver Tea Room

Denver Tea Room

Elderhood and naming, misnaming and un-naming. This will most likely be the last installment on this philosophical theme.  In thinking about how to prevent elder abuse and exploitation as well as the new mandatory reporting effective July 1, 2014 in our state for persons aged seventy and older, aren’t we also looking at our own fears about what we see happening now to our family and community members as we also consider what might happen to each of us if we find ourselves in difficult circumstances?

We cannot solve our problems with the same thinking we used when we created them.

Albert Einstein

But will our thinking  about our elderhood and its challenges be big enough and deep enough to get us there – to some solution?  I think of a quote from the late literary critic and essayist Northrop Frye, based on lectures he gave when he was in his later years  – or eighth stage:

The cultural aura, or whatever it is, that insulates us from nature consists among other things of words, and the verbal part of it is what I call a mythology, or the total structure of human creation conveyed by words, with literature at its centre.  Such a mythology belongs to the mirror, not the window.

Northrop Frye, Creation and Recreation

What is a mirror for? Why, reflection of course.  If you’re not sure about the importance of reflection, Teilhard de Chardin, the paleontologist and theologian, considered the birth of reflection as a major contributing factor to the phylogenesis of the human evolution.  See Teilhard de Chardin, The Human Phenomenon (2003: S. Appleton-Weber, transl.) at 171.  In case you might be wondering whether I am saying that only human beings have that power of reflection, I would have to admit that no, I think there are many other animal beings that possess the ability to reflect.  Our notion of social justice is evolving to reflect this.

One of the side effects of our recently acquired longevity is the side effect of dementia and incapacity.  Perhaps before declaring a “war on Alzheimer’s” we might first examine our thinking about it – dementia as a “side effect” of longevity.  Are we looking in the mirror or through the window here?  I would suggest that this story is one which belongs to the mirror and is therefore part of our story, a myth as suggested above.  What we lack is a big-enough thinking, a mythology for what is happening to us in this new old age.  The call for the war on Alzheimer’s is indicative of our desire for a quick fix, to maybe find a pill to take so we can “manage” it.

So is it the remembering or the forgetting that is the challenge?  Disappointment, disintegration and resulting dystonia, and of course depression are accompanying many of us as we pass through the eighth and ninth stages of life.  All this “dis” reminds me of William Blake, the English poet of the 19th century.  Kathleen Raine, the late poet, author and interpreter of Blake, caused me to wonder about reversing the polarity in the final (ninth) stage of our lives and consider that:

Experience was not a learning but a forgetting, a loss of vision, a narrowing of consciousness, or as Blake puts it, a falling into the deadly sleep of materialism, to become oblivious to that beauty seen with the eyes of innocence.

K. Raine, “A Sense of Beauty,” in The Underlying Order and Other Essays (2008: Temenos Academy ) at 67.

    So in the context of the life cycle, as some movement from an origin, a progression and evolution (if we’re successful) we might end up at some place of return in the ninth stage as described by Joan Erickson – the gerotranscendance.  Perhaps the stages themselves mark time as well – chronologically of course, but also in terms of kairos, the quality of time.  The Egyptians originated the solar year, the Zuni people referred to months as the steps of the years, and so the regeneration of time, in its cyclical aspects has been a part of the human phenomenon for all of our known history.

So what is it to which we return – a forgetting or a remembering?  Perhaps in order to be able to manage that return, we must dis-assemble ourselves somehow.  That is one aspect of transcendence.  Maybe it is also that perhaps forgetting all that accumulated experience is needed in order to clear away the debris, so that we can truly remember, as described by Raine and Blake.  I don’t pretend to have any answers, I am merely proposing we open the doorway a bit wider before we determine the path forward.

There are many ways to look at dementia and incapacity, but when we focus exclusively on the individual and on the objective, measurable parts of a person’s identity, it can only ever be about loss.  I am merely suggesting that the group focus is at this time much too narrow and there are other ways of viewing old age, and it challenges beyond the checklist formulated by our brain and identity-centric material order-obsessed version of objective reality.  Moving away from “I am X” toward simply “I am” is what I’m talking about.

Remember the quote I started this series with?

With great power comes great responsibility.

Voltaire (1694-1778), Spiderman (2002)

   I will close this series with an exercise with a bit of music.  I think a big part of our problems with thinking, both as individuals and collectively as a society, has to do with our neglected sense of wonder.  So here goes: try this link of an inspiring song by Lisa Gerrard (you might recognize it from a movie soundtrack) and while you are looking at the beautiful pictures of our cosmic neighbors, try stretching your arms wide as you sit or stand, as if you are spreading your wings or are about to receive a welcoming embrace.  Do this for two minutes and see what it does for your sense of feeling confident and powerful as well as your sense of wonder and beauty that is the world of which we are part.

So to conclude this series which revisits common themes of other posts: darkness and depth and exile and return, I will employ my favorite poetic device, haiku.

How can it be known –

to distinguish between them,

the two darknesses?

 

Only the compass

Rose of the heart can measure

Luminosity.

©Barbara Cashman 2013     www.DenverElderLaw.org

Inherited IRAs in light of last week’s US Supreme Court decision (Clark v. Rameker)

Ralph Carr Justice Center Colorado Supreme Court Courtroom

Ralph Carr Justice Center Colorado Supreme Court Courtroom

Everyone knows what an IRA is – right?  We think IRAs have been around a really long time, but they only came into being in 1975 with ERISA legislation, and Roth IRAs came in 1997.  IRAs are classic nonprobate property that someone can pass to others without probate in many circumstances.

Q: What happens if I complete the beneficiary designation form?

A: Your beneficiaries will have much more flexibility and protections (especially on the tax front).

Q: What happens if I don’t bother with the beneficiary form?

A: Well, you won’t be around to find out – right?!  Here’s a link to a Colorado Business Magazine article about the importance of designating a beneficiary to maintain that flexibility.

Some handy IRA vocabulary words:

  • RBD – required beginning date (701/2 years of age), after which you are required to withdraw the
  • RMD – required minimum distribution, an annual distribution.

Here it is important to consider whether the decedent died after his or her RBD.  If she or he was already receiving RMDs, you will want to determine whether the distribution for that final year needs to be paid. Be sure to check with the account custodians to determine if the distribution was made before the date of death.  There are two basic types of IRAs that can be passed along to survivors:

Spousal IRA

This is generally the simplest to accomplish and a spouse will want to consider among several choices –  to roll them over into an IRA, start receiving benefits, have them paid out in a lump sum, or disclaim some portion to minimize estate taxes in the spouse’s estate.

Inherited IRA

There is an important distinction initially regarding whether the beneficiary designation was made out to the beneficiaries or left blank. . .  There is generally much more flexibility when the designations are completed.

So here’s a question . . . . Whether inherited IRAs are generally exempt from creditors depends on where you live! Are these funds still qualified and exempt, or are they just another inherited asset?

In an inherited IRA scenario, a beneficiary (often an adult child) will need to take out the RMD in the parent’s IRA every year and declare that as income.  In addition, the IRA cannot be added to by the inheritor.  You might be wondering what types of protections are afforded inherited IRAs from the creditors of the inheritor.  Well, I can say with all lawyerlike confidence . . .  it depends.  Under Colorado law, specifically Colo.Rev.Stat. §13-54-102(1)(s) there is an exemption from judgment creditors for certain types of retirement accounts and benefits.  The definition includes IRAs “as defined under Section 408 of the Code” (this would be 26 U.S.C. §408(d)(3)(C)(ii).  Under the Bankruptcy Abuse Preventive and Consumer Protection Act of 2005 (BAPCA), many states opted out of the federal bankruptcy exemptions in favor of state law exemptions.   Read more on this topic here from my learned colleague Laurie Hunter.

It is important to consider that there are at least three different layers to the inherited IRA treatment: federal tax law, state law relating to bankruptcy and what creditors can collect, and bankruptcy.  Until just a few days ago, when the U.S. Supreme Court ruled on a writ of certiorari on the U.S. Court of Appeals for the Seventh Circuit’s 2013 decision, In re Clark, there was a split among the federal circuit courts of appeal – you can read more about it here.

 The Federal Circuit Courts of Appeal Were Split Over the Meaning of the Phrase “Retirement Funds”

Two federal courts of appeal – the Fifth and Seventh Circuits (whose decisions were binding in the regions that they cover – Colorado is part of the Tenth Circuit) had come to opposite conclusions, while interpreting the meaning of the same term. In 2013, the Fifth Circuit decided that the phrase “retirement funds” in the bankruptcy exemption statute quoted above means any funds “set apart” in anticipation of “withdrawal from office, active service, or business” and that the statute does not limit “retirement funds” solely to funds of the bankrupt debtor, so long as the funds were originally “set apart” for someone’s retirement. In re Chilton, 674 F.3d 486 (5th Cir. 2012). Once the funds were set apart for retirement, they maintained that same character for bankruptcy exemption purposes. The court thereby permitted the debtor in Chilton to exempt all of a $170,000 IRA inherited from her mother.

In Clark, the Seventh Circuit expressly disagreed with the Fifth Circuit, adding that it “do[es] not think the question is close.” The Seventh Circuit observed that, while inherited IRAs do shelter money from taxes until it is withdrawn, they lack many of the other attributes of an IRA. That court noted in particular that the beneficiary of an Inherited IRA is prohibited from rolling those funds over into his or her own IRA and from adding her own funds to the Inherited IRA. The beneficiary must take distributions from the Inherited IRA within a year of the original owner’s death and complete those payouts over a defined period, often as little as five years, whatever the beneficiary’s age and whatever her employment status. In short, once the original owned died, “the money in the [I]nherited IRA did not represent anyone’s retirement funds.”   That court of appeals declined to extend the character of a decedent’s retirement funds into the inheritance context and therefore decedent’s daughter could not then use that money as her own retirement savings, and it became no different from an inherited certificate of deposit or money market account: non-exempt and available to distribute to the daughter’s creditors.  That was the essence of the split in the circuits.

 Just a few days ago, the Supreme Court ruled unanimously in Clark v. Rameker that inherited IRAs are not protected in bankruptcy.  Here’s a link to the SCOTUS blog coverage of the decision.  The USSC followed the line of reasoning of the bankruptcy court and of the Seventh Circuit, disallowing the attempt by petitioner in bankruptcy court, Hedi Heffron-Clark, to exclude the funds in the IRA from the bankruptcy estate using the “retirement funds” exemption under Section 522 of the Bankruptcy Code, which exempts tax-exempt retirement funds from a bankruptcy estate. Just in case you are an insomniac and want to read the entire decision, rendered June 12, 2014, here it is in pdf format.

I still think that, notwithstanding the USSC’s ruling, inherited IRAs are  an important legacy for a parent to leave an adult child, and it is important to not underestimate the “emotional” value of the money from a deceased parent’s retirement savings for the use of a child’s retirement.  But beware, they won’t be protected from an adult child’s creditors in a bankruptcy proceeding.  So please remember that an IRA and an inherited IRA are not really the same animal!

 ©Barbara Cashman  2014   www.DenverElderLaw.org

 

Guest Post by Karen Moorehead: You Promised to Take Care of Them. No One Said It Would Be Easy…

Karen Moorehead, ElderLink Home Care

Karen Moorehead, ElderLink Home Care

 

I recently met with Karen Moorehead, the owner of Elderlink Home Care, Inc and she agreed to write a guest post.  Aging in place is a familiar buzzword today, but many people don’t know what it really means until there is a crisis in their own life or a dear one’s life and assistance is needed to help support independent or supported living in a home setting. Karen is passionate about helping seniors achieve their goals of aging in place.  Elderlink has been serving seniors throughout the Denver-metro area since 1988. 

Sometime, maybe years ago, when your parents were younger and healthier, you may have made a promise that you would always take care of them. You may have made the promise to your parents or just to yourself. It was easy when taking care of them meant one to two visits a week, taking them to appointments and helping with things around the house.  Now as your parents are aging and their needs are increasing, you will need to figure out if you are able to keep that promise and exactly what it will mean to you.

Coming to the realization that your parent may need more care than you are able to give is not easy. You may feel an enormous sense of guilt and even failure for your inability to care for your aging parent. Are you doing enough? Can you do it all? If you are not able to be the sole caregiver for your mom or dad and have to arrange for outside help, those guilty feelings can be magnified. Hiring outside help for your parents may not have been what you had in mind when you made your promise, but is important not to put off doing what is best for your parents because of feelings of guilt.

Being a caregiver requires a large investment of both time and emotion. Today’s sandwich generation often has children, maybe even grandchildren at home and is likely to still be working. Being a caregiver for your parent may not be a possibility. The ability to understand your limits and to set limits with your parents is crucial. If you do not look after your own health and wellbeing, you will not be able to help your parents. Looking at it this way, you can see that it is your responsibility to create a balance between your interests and the interests of your parents.

Acknowledge your feelings of guilt and other emotions that usually accompany it.  Emotions such as anger, resentment and stress are common among caregivers. Pay attention to which feelings may be unjustified, or just a result of you putting unrealistic expectations on yourself. A good stress-reducing tool is to talk with other caregivers, maybe join a support group.  When people feel safe, as they often do in a group, they let down their guard. They can admit that they feel the same way. Learn to be kind to yourself. There will be good days and bad days.

Recognize that we all have different strengths and weaknesses. Some of us are better suited towards caregiving and empathy; others might be better at organization, keeping paperwork and finances in order and tasks around the house. If you have siblings, encourage your siblings to help in ways that best utilize their strengths. Do what you can to help and don’t beat yourself up for everything you can’t do.

Your parents cared for you, it’s natural that you want to care for them. And, yes, you promised to take care of your parents. That doesn’t mean you promised to provide them with all of the care they need yourself, it only means that you will ensure that all of their needs are being met.  Arranging care for your parents to ensure that all of their needs are being met is honoring the spirit of your promise.