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.

This Week: Small Business Week and Elder Law Month

An Irish Ruin

An Irish Ruin

This is an interesting combination topic – don’t you think?  Perhaps you might be thinking that I am taking this whole “theme” thing a bit too far.  Putting together the “Happy Small Business Week” (which I learned about from my Google page on Monday) and Elder Law Month. . . .  Isn’t this a bit of a stretch?!

Why no, not at all!  In fact many folks in the second half of life are shunning retirement in favor of . . . . “risky startups.”  Read the January 7, 2014 Bloomberg article about this here.  It’s no surprise to learn that job opportunities for folks over 55 are “limited” but it was surprising for me to learn that the number of people aged 55-64 has been increasing, with a full 23.4% of them starting their own businesses in 2012.  What is prompting people to do this?  Many have discovered that the retirement benefits that many of our parents enjoyed are simply not on the table anymore.  Couple that with a lifelong yearning to work for yourself, and there you have the boomer startup!  The Small Business Administration is well aware of this trend and has targeted free resources available for this cohort.

Last month I was pleased to present the CLE program at the monthly meeting of the Elder Law Section of the Colorado Bar Association.  My friend and colleague Rick Mishkin gave me a very kind introduction and revealed publicly my secret desire to be a talk show host . . . .!   He was generous enough to update the title of the solo/small firm disability and death planning presentation I have given a few times now to “The Death You Need to Plan for Should Be Your Own.”  As it was the elder law section, which is an interdisciplinary group, there were a few professional fiduciaries who attended the program and a couple of them (one of them a finance person and the other a professional guardian) noted that the materials I shared were helpful to them as sole proprietors who wanted to have some succession or disaster planning in place.  A bar staffer told me the materials would be available on the bar website. I am happy to share these resources with other solo professionals who are so inclined.

Among the small business startups by those underemployed boomers or boomers who just aren’t ready to be retired can be found more than a few businesses targeted at the elder care services field.  There are businesses that are founded on services that most family members that traditionally were largely provided by family members.  With our modern-American and far-flung families, many elders have come by necessity to rely on service providers for many services and support.  In fact, the Eldercare Locator, a public service of the U.S. Administration on Aging has a handy website that can help locate local providers of services including information on Alzheimer’s Disease, health insurance, transportation, housing options, legal assistance and long-term care.  Many of those service providers are baby boomers who found that the service their parent(s) needed was not really available, and so many unique forms of assistance for elders were born from this necessity.

The boomers have a vested interest in how these business developments they are involved in turn out.  They are the “silver tsunami,” which is necessitating a reexamination of resource allocation in services that will be made available to the biggest ever cohort of elders in our country (and many other nations worldwide) has seen.  There are many dimensions of what has been called “the 2030 problem” of meeting the challenges to public policy placed on caregivers and public finances; and to focus only on economic challenges (like issues around raising tax rates while tending to economic growth of service costs at the expense of other forms of social investment along with tending to the well-being of future generations of workers) may be misleading in its simplicity (or not).  This topic is not at all an easy one to identify and discuss, let alone come up with what might be “solutions.”

Another excellent online resource is the American Society on Aging.  On their site is a tab called “business and aging.”  Turns out there are a few discussions of the topic outlined above – how long should a boomer work; will there be enough caregivers to go around when we need them; and what about long-term care insurance issues . . . ?  My favorite item on this site is a video by Katy Fike, Ph.D., a member of the ASA’s Board of Directors entitled “Ten Innovations that Could Change the Way We Age.”  Spoiler alert: one of them is the Google self-driving car!  I think we Boomers have a lot to look forward to in our old age.

©Barbara Cashman  2014   www.DenverElderLaw.org

Longevity Planning – Planning for Long Life and Likely Disability

 

denver elder law

Lucina’s Spring Blossom

As you have undoubtedly noticed, Americans are living longer than ever before.  One of the side effects of this longevity is a fairly strong likelihood that an incident or period of incapacity or disability will accompany that long life.  Yes, we baby boomers seem to think that if we just continue to exercise and eat right, somehow we will get a ticket to longevity that ensures our vital longevity.  After all, we boomers practically grew up with Jack LaLanne!  Long before Hans und Franz of SNL fame, there was the blue-jumpsuited “Godfather of Fitness” (I learned of this moniker this only as I did a bit of web research).  LaLanne died in 2011 at age 96, with nary a gray hair on his head!

So what about this longevity issue – I am thinking of it in the context of the death denial and youth glorification convergence . . .?  I’ve written about it before.  Death strikes fear in people’s minds, and even in our hearts.  For many it is a major anxiety producing thing to consider, let alone contemplate.  Ernest Becker wrote about this in The Denial of Death.  A favorite book of mine stands in contrast to this well-recognized fear, in Who Dies, authors Stephen and Ondrea Levine take a completely different approach to this fear and address it in the context of conscious living and conscious dying.

So how we view this life and death experience, in terms of what we fear and what we embrace, what we can know and what remains mystery, this is far from a “standard” human response.  I might be getting off-topic here, but let’s face it, with this kind of a topic it’s hard to know where things will lead!  I don’t think we’ve always lived like this – with such “faith” in medical science as something that will somehow protect us from the ravages of illness, old age and eventual death.  I am pretty certain that our scientific progress in understanding more of how our bodies function, age and eventually die, has brought about a thinking that we can somehow “manage” death.

And so we hold death at bay, we call it the enemy and we make our lives a struggle against the inevitable.  Well, if that is the sum of a life’s purpose . . .  I would say “that ain’t much!”  When many of us are ill and eventually die, we often employ that language of warfare.  Example: John Doe fought bravely in his struggle against metastatic prostate cancer.   On this topic of battlefield euphemisms, my friend Liz sent this excellent article to me from “The New Old Age.”  Bottom line is, the militaristic language, the fighting words we see so often and hear in conversation do nothing to empower our lives and our sense of purpose in our lives.  I would argue that this language and its approach rob us of our purpose, disempowering us by making us random and senseless victims of our lives in our death.  Remember the announcement of the war on cancer by President Nixon?  Most recently we have the war on Alzheimer’s announced by President Obama.

So back to the longevity planning theme and the fear of illness, frailty, disability . . . .  life on its own uncertain terms.  The fear of disability is more troubling in many respects than the fear of death.  Much of it springs from youth glorification, an extension of that anxiety around death which often includes processes, occurrences and diseases that often precede death.  Is the glorification of youth simply an extension of the denial of death?  I am not asserting that the American cultural obsession with the denial of death is a recent occurrence or produced by the baby boomer generation.  No, it goes back further than that.

I have written previously about the fear many of us have of getting Alzheimer’s or some form of dementia.  I think there is also plenty of evidence that people fear incapacity at least or perhaps more than the fear of dementia.  Of course, dementia is only one form of incapacity, so the questions may blur the distinctions. There are of course a myriad of other fears which surround aging.  Many of them don’t have to do with losing capacity so much as retaining it in our old age.  I enjoyed reading Roger Angell’s article “This Old Man” in The New Yorker.  It is a story about all those human needs and desires we carry with us into whatever age we find ourselves.  There is no handbook on how to behave when you find out that your 85 year old mother, who has been widowed for less than two years, has started dating on the internet.  And what about physical intimacy in the assisted living or nursing home?  I’ll write more about our cultural fear of aging soon.

©Barbara Cashman  2014   www.DenverElderLaw.org

The Death Certificate as Proof of Having Lived

Proof of Having Lived

Proof of Having Lived

Death certificates as we know them are a fairly modern invention.  Like other records (baptism and marriage), they were commonly kept by local churches but with the rise of public health as a government concern, the records began to be documented by governments.  Now the records are kept by state departments of vital statistics – where birth and death records can be found.  Access to these publicly-held documents vary from state to state.  Some states (like Colorado) restrict access to such documents.

As a probate lawyer, I typically collect a death certificate from a client on whose behalf I am opening an estate or trust administration.  You might be surprised to know that you don’t need a death certificate to do this, you just need a date of death.  No “proof” is required as in the form of a death certificate.

Keeping track of life and death with these documents – that totally begs the question of why we are born and why we all must one day die. This might lead to a bigger question.  How do we know we exist? Well, that depends. . . . that is where the word consciousness comes into play.

I do find very interesting the works of neuroscientists like Antonio Damasio and their very informative, but usually brain-centric notion of human consciousness. I think it is fascinating how our use of newly-found technological implements and measuring devices is being used (as in a large blunt instrument) to quantify and measure brain activity that sometimes passes for. . . .  consciousness.

Alright, I’m really getting off-topic here, so I’ll rein myself back in. We’re talking about the death certificate, that document that the U.S. started maintaining as vital records around 1900.  This is a much easier topic than discussing the nature of consciousness!

So, I’ll start with the usefulness of the certificate.  A Colorado certificate is broken into five different sections: information about the decedent (date of birth, death, social security number, occupation, years of education, etc.); names of parents of decedent and the “informant;” the method of disposition (signed by a funeral director or the like); information about the certifier (name of certifier, exact time of death, date of filing certificate, etc.); and the cause of death.  In the April 7, 2014 isuse of The New Yorker, Kathryn Schulz has a very readable article about death certificates entitled Final Forms – here’s a link.  Thankfully, I think we are largely beyond the days of the “vanity death certificate” where an otherwise not very socially acceptable cause of death was “prettied up.”

Based on its public health history, the death certificate can be particularly useful in explaining the cause of death.  This cause of death can sometimes assist in bringing criminal charges or pursuing civil remedies after a person has died.  An explanation of the cause of death usually includes different items. A Colorado death certificate has a space for “immediate cause of death” which contains, interestingly, an admonition to the certifier to not specify the “mode of dying” alone, but its cause. For example, for someone who died of aspiration pneumonia, it might list first “acute respiratory failure” then followed by “acute pulmonary embolisms and aspiration pneumonia.”

I think of the quote from Death Comes for the Archbishop, by Willa Cather:

I shall not die of a cold, my son.  I shall die of having lived.

The death certificate is most of the time more specific than this quote.  However, I have seen listed as a cause of death on a couple death certificates in the last few years something known as “global geriatric decline.”  This strikes me as quite similar to the quote above about dying as a result of “having lived” (a really long time).

Each state has its own form, but the U.S. Centers for Disease Control has a form that is a standard.  In case you’re tired of reading and would rather watch TV, here’s a link to a Frontline program on Death in America.

Who can sign a death certificate?

A physician, a coroner, two registered nurses (if certifying in a hospital), and other specified personnel (with exceptions for disasters).

What does the death certificate say?

The signing authority basically verifies the identity of the person and the cause of death.  This can sometimes be a tricky matter.  I recently read what I would consider a fairly badly written death certificate of someone who died in a skilled nursing facility.  It stated three causes: global geriatric decline (which perhaps may include that broken heart of the survivor who sees their spouse of 50+ years predecease them) (in case you think I’m making this up, here’s a link to an FAQ about “broken heart syndrome” from Johns Hopkins School of Medicine.

What about an autopsy – how often is that performed?

Not very often! Recent figures from the CDC, from 2007, indicate that autopsies were performed in just eight percent of all deaths.  Autopsies are invasive, and while a decedent’s cause of death may be evidently caused by some form of poisoning, a toxicology report may be used to clarify what poison caused the death.

I have been asked by a surviving adult child about what is done with the information listed under the cause of death – specifically whether a life insurance company might use the information to deny life insurance coverage to the adult child of the decedent.  Due to the nature of the cause listed, I responded with a “no,” but now that I’m writing this post there are several science fiction movie plots that are coming to mind . . .  is that in our future?  I know there were many such concerns with the beginning of the Human Genome Project.  At least some of them have been resolved. . . .

So, to conclude, the death certificate is useful in many ways.  But don’t get me wrong, I don’t think the death certificate is proof of being alive at some point, just of having lived. . .   and one last reminder on this topic – April is donate life month.  If you haven’t yet signed up to be an organ donor through your DMV, here is a link with more information about those lifesaving donations.

 ©Barbara Cashman  2014   www.DenverElderLaw.org