Elder Abuse and the Mother-Child Relationship

Tree Mother

Tree Mother

 

Today I’m exploring the question of whether exploitation or neglect of an elder parent by an adult child presents differently due to the gender of the parent.  I will begin with a question:  is the elder parent – adult child relationship different between mothers and fathers?  What about when it “goes wrong” and results in neglect, exploitation or financial, physical or verbal/emotional abuse? I can say from my experience as an elder law attorney that elder mothers appear to be taken advantage of in ways that are often different from those means involving elder fathers.

This post crosses a lot of territory – spanning the abuse of a power of attorney by an adult child serving as agent, elder abuse resulting from neglect of an incapacitated elder, to the evolution of family conflict across many years of relationships.  Abuse in these contexts can take many varied forms and because it is part of a family relationship, a most intimate one of mother and child – it can express itself in subtle and slippery ways.

I have noticed in the estate planning portion of my work that fathers tend to have a much easier time with leaving disproportionate shares of an estate among adult children and also seem to be much more resolute about disinheriting a child.  One of the reasons might be that mothers tend to have a higher involvement and investment in the parent-child relationship, even as it evolves over the lifetime of the parent and the adult child(ren).  In my experience, mothers are more likely to hold out hope that a wayward child (whom a father might easily disinherit) will return to a more productive life path or that the filial relationship will otherwise be redeemed.

Some people might think that threatening one’s mother with putting her in a nursing home might amount to elder abuse.  I’m not saying that it wouldn’t constitute emotional abuse in some circumstances, which could be used by an adult child to further a strategy of dominating and controlling a parent for their own personal gain.  This threat could also stem from an adult child caregiver who is overstressed from his or her responsibilities to care for a (sometimes uncooperative or difficult) parent.  Sometimes what ends up as exploitation starts out as a willingness to assist the parent but perhaps due to the nature of the parent-child relationship or as a result of the buildup of resentment on the part of the child, the caregiving goes astray.  But what I’m talking about in this post goes a bit further.

As we all know, parents remain parents of children, with all of the emotional responsibility that entails – regardless of the age of the child.  The fact is that many elders are better off financially (or at least more secure) than their children and they may want to help their children financially, but there is a razor-thin edge between healthy nurturing and being subjected to emotional manipulation.  Here’s a link to an AARP article from 2013 which has some sad statistics.  Part of the problem is a sense of entitlement from the adult child or children.  Some of us in my field of practice use the term “impatient heir” to describe these adult children who seem to be biding their time until the parent dies and they can “collect.”

I don’t want to sound like a broken record here, but I have noted a number of times in previous posts that there is not very much current research documenting the prevalence of elder abuse.  There is some recent work on the sometimes toxic nature of filial relationships and elder abuse.  What is “taking care of” someone and what does it properly entail? Here’s a link to an abstract about the special significance of the adult daughter-elder mother relationship and the use of aggression. Underreporting is an obvious problem – particularly when the reason for underreporting is shame or embarrassment.  When an elder mother (or father) reaches out to me as a resource person to assist in remedying a situation, one of the first things I say involves the recognition of how brave the mother Is to contact someone outside the family to report on what is generally a highly embarrassing and sometimes shameful situation.  One elder mother I worked with recounted to me how her daughter told her that she was mean to her when she was a teenager and so the daughter’s control over her mother’s finances was part of a “payback.”  Another mother extended her home temporarily to a child from whom she had been estranged for many years, only to learn he had no intention of ever leaving.  The victim-victimizer narrative in these situations can get rather convoluted!

Dr. Judith Smith is a researcher in this field who is engaged in studying how family conflict plays out in the later years of the parent and she has focused on the parent’s feelings of ambivalence (e.g., a mother wanting to help her child versus the resentment of feeling the need to assist).  The National Adult Protective Services Association (NAPSA) recently added Dr. Smith’s research brief entitled “Elder Abuse, Mother Abuse and Parenting in later Life.  Here is a link to the power point training offered by Judith Smith, LCSW, PhD on Vimeo on which NAPSA based their report.

The ambivalence scale to which Dr. Smith’s training refers is described in more detail here by Karl Pillemer, in the article entitled “Ambivalence Toward Adult Children: Differences Between Mothers and Fathers,” and you can read the article on the National Institutes of Health website here.

As we continue down the road of longevity, it might help us to think about our long term familial relationships and how they are challenged or compromised as a result of a parent’s longevity.  When this longevity involves physical frailty, emotional dependence, cognitive impairment or other factors diminishing an elder parent’s autonomy – what is an appropriate response?  This is of course an ongoing conversation and I will continue on this topic in the future.

© 2016 Barbara Cashman  www.DenverElderLaw.org

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

Youthful Exuberance

Youthful Exuberance

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

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

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

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

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

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

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

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

The Answer, by Carl Sandburg

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

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

       of the week,

Knowing silence will bring all one way or another.

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

© Barbara E. Cashman 2016   www.DenverElderLaw.org

Did You Know October is Conflict Resolution Month?

Cloud Above Santa Maria degli Angeli

Cloud Above Santa Maria degli Angeli, Assisi

 

Yes, this is an excuse for a post about elder and probate mediation. . . !  On Monday I gave a presentation to a Parkinson’s support group in Arvada.  One of the major points I raise about disability planning (like health care powers of attorney, advance directives – a/k/a living wills – and general durable powers of attorney) is its value in the minimization of conflict.  Conflict is a normal part of human existence and it is inevitable, but how we choose to deal with conflict, both individually and in a group like a family – can be complicated and sometimes destructive, particularly when a loved one faces a health crisis and we are left feeling powerless.

End-of-life care decisions are usually difficult under the best of circumstances, so when there is disagreement between a spouse, adult children or other family members, this can be a source of major problems which adds to the stress of the caregivers and the encroaching grief from the advance of the disease process.

Late stage care, like hospice and palliative care, can often provide turning points in the care of a person when family members may start to better come to grips with their loved one’s impending demise.  This is not often the case however.  Sometimes with neurodegenerative diseases such as Alzheimer’s or other forms of dementia, ALS or Parkinson’s, there is a steady and inevitable decline, but this can also be unpredictable and sudden.   Here’s a link to the National Institutes of Health’s National Institute of Neurological Disorders and Stroke, which has an exhaustive list of many different types of neurological disorders.

We need support groups for raising awareness about these diseases and also because these groups can provide resources and mutual support for family caregivers.  As I told the group I addressed today, one of the highlights of practicing law in this field is that I get to see and also help facilitate people taking care of their family members, providing them with love and care during times when that is what is needed.  One of the reasons we need support groups is that we have never had so many people living with these diseases.  While it may seem that these diseases might well be a side effect of our unprecedented longevity – here in the US as well as in many parts of the globe – it remains a mystery why these diseases are affecting larger numbers of people, particularly as there are more of us aging.

There are productive alternatives to court proceedings that can be considered when an elder’s decision to continue to drive is no longer a safe choice, or where a parent’s health care agent is perceived by siblings to be suffering from “compassion fatigue,” or when disagreements about the type of appropriate caregiving have overtaken the family members’ ability to effectively communicate regarding the elder’s care.  This is where elder mediation can be particularly helpful.

It might be useful at this point to distinguish elder law from elder mediation.  The practice area of elder law is defined by the legal problems of the elderly (which practically makes it a broad general practice area, which is why many of us focus on particular aspects of it) and the “consumer demands” of the elder population.  Elder mediation, in contrast, often struggles to include the voice of the elder and to respect the dignity of their choices and preferences in circumstances of intense conflict which can often involve encroaching disability or increased frailty, slipping cognitive skills, other health challenges.  Here’s a link to a recent article in Bifocal, a journal published by the ABA Commission on Law and Aging, which features research on the topic of health care decision-making authority.

The providing of care and sharing of care for an elder who has a neurodegenerative disease can be stressful to establish, particularly when sibling have different approaches to and comfort levels with conflict.  This is why talking with an elder mediation professional can be helpful.  But there are several useful articles available on the web about “self-help” for disputants, and I liked this one from Social Work Today.  A particularly effective means of dealing productively with inevitable conflict is to make plans around it, particularly by having the conversation around end-of-life matters and also executing documents that name health care agents and express wishes and values.  Here’s a link to the Life Quality Institute, where you can find helpful resources.

I will end this post on a happy note, about the Dementia Friendly America Initiative, which seeks to make our communities easier places of inclusion for people with dementia, so that they continue to be recognized as community members.  Denver is one of the communities which has pledged to become “dementia friendly” as this press release from the Colorado AARP explains.

©Barbara Cashman  2015   www.DenverElderLaw.org

The Grail of Elder and Probate Mediation: Identifying Obstacles

denver elder law

Ancient Chalice Painting

I have included this painting of a chalice because of its powerful symbolism.  I will put aside the well-recognized religious symbolism (especially among the Abrahamic religions “of the book”) and employ its metaphorical meaning for my purposes here:

A thing that is being earnestly pursued or sought after

The word appears to originate in the Medieval Latin gradalis, meaning “dish” and our English term comes from the Old French graal.  Thinking of the term as a dish, and considering the Latin from which it originates, it’s not a stretch to consider it as in the courses of a meal (our stages of life).  If we think of our life as a long meal, and the dish, bowl or cup as what we have come to think of in our mind as our life and perhaps even its meaning or significance, the grail can serve as a good metaphor for pondering what it is we think or feel we are lacking in this life, as the grail of what has been sought but not yet achieved or attained.

In the context of elder and probate mediation, this grail, this missing part of an elder’s long life or a family’s story, can be harmonious or respectful family relationships.  In my experience, the single biggest hurdle to making the space for a productive engagement to have a conversation about family conflict lies in identifying the sources of conflict.  The conflict may have been careening out of control for years but it has finally crashed, landed somewhere and gotten stuck as a result of a variety of circumstances.  What to do now?

Well, it depends on who is asking and who is willing to “own” the conflict.  There are invariably a number of different perspectives on what went wrong and how to “fix it.” This is the often insurmountable threshold to getting close to any room in which a grail might be found (to use a building metaphor).

Family members typically operate under ground rules for engagement that were established in childhood and people often carry these unspoken rules and assumptions forward into the future.  In fact, this informs many of us about our “life story” and we adopt it as part of our identity, for better or for worse.  So how does that play out in the context of an elder’s health crisis or end of life scenario, when “the chickens come home to roost?”

I have previously blogged about sources of such conflict here, as well as what to look for in a mediator, but I don’t believe I have ever addressed the topic of getting past the “hand wringing” to proceed to mediation.  It strikes me as odd that I haven’t done this before because I have probably had a dozen such conversations over the years with potential clients about what is involved in convening an elder mediation.  This can be distinguished from probate mediation, where there is already some underlying legal proceeding which has at least crudely identified what is at stake and in which a judge may have ordered or strongly suggested to disputing parties that resolution of all or some of the issues should be done in a mediation.  I have been engaged as a mediator in several of these types of disputes (guardianship, estate administration, trust administration).

Speaking is usually a function of thinking, but our chosen words, what they say and convey to others has a multi-layered meaning in the elder and family conflict context.  The grail story, the myth of Perceval or Parsifal, depending on the land or time period of recounting of the story, is essentially about speaking as a function of thinking and interacting with the world and others.  I find it particularly useful in this context of elder mediation and family disputes involving an elder.  If you would like to read more, consider The Speech of the Grail, by Linda Sussman (1995: Lindisfarne Books).

There are two important questions asked by the protagonist of the story.  Both questions are asked from a position of freedom, not bondage flowing from a sense of obligation.  The first question “what ails thee?” is about the power of observation, from an action of paying attention to another’s plight from different perspectives beyond one’s owned limited and perhaps comfortable perspective.    The second question, “how can I help?” recognized the relationship involved and might also be phrased “how can I help myself in helping you?”  This is the initiation of the thinking/habitual speech into the realm of the heart-space.  This is true listening that is usually very difficult, uncomfortable, sometimes painful and often cannot be controlled, leaving us feeling vulnerable.

This posing of these two grail questions is the hurdle, the threshold that prevents most individuals and families from getting to productive conversation about a crisis stemming from the elder family member’s life.  Here is a poem from the eighth century poet Rabia al-Basri about the heart:

In love, nothing exists between heart and heart.

Speech is born out of longing,

True description from the real taste.

The one who tastes, knows;

The one who explains, lies.

How can you describe the true form of Something

In whose presence you are blotted out?

And in whose being you still exist?

And who lives as a sign for your journey?

 

I will close with a question she raises: Can we muster the strength to be signs for the other’s journey?

©Barbara Cashman  2015   www.DenverElderLaw.org

 

Denial of Aging and Death as Source of Conflict

Centranthus or Jupiter's Beard

Centranthus or Jupiter’s Beard

 

Autumn here in the Denver metropolitan area is beautiful.  Some of our trees’ leaves have started turning while others have not.  The apple tree in my backyard is producing many fine apples, which I am happy to eat.  Her leaves are just starting to curl a bit.  The late tomato harvest is petering out as the nights get colder.  In between the two posts on the “time out of mind” theme I wanted to write about conflict and denial.  I haven’t written about this in a while and since October is Conflict Resolution Month, I thought the time was right!  I like the language from the Colorado Senate’s Joint Resolution (13-017) on this topic:

WHEREAS, These conflict resolution processes [mediation, arbitration, facilitation, etc.] empower individuals, families, communities, organizations, and businesses to foster communication and devise solutions that are acceptable and responsive to the needs and interests of all parties involved; and

WHEREAS, Conflict resolution is taught and practiced by citizens in many school systems, universities, and graduate programs throughout Colorado and the world as a way of solving disputes; and

WHEREAS, Community-based programs work to strengthen local relationships by fairly and equitably resolving neighborhood and community conflicts and opening community dialogues based in reason and mutual respect;

So you might be wondering what conflict resolution month has to do with fall, the inevitable changes in our lives and. . . . denial? Each of us deals with change and resulting conflict differently and our “conflict style” is often a pattern of responses of types of behaviors that we use in conflict-laden situations.  We often hone these skills in our family or sibling relationships.  How we manage our concern about conflict and how much we look at it a particular conflict as a “mine, yours or ours” type of situation greatly informs our response and participation in managing and resolving a conflict.  This is particularly so in the elder law context, in which there is often a challenge (usually a constellation of them) and difficulties presented when an elder begins to slow down or fail physically or mentally.  How family members and loved ones respond to those changes has a huge impact on an elder’s well-being.

The contemporary view of conflict styles lists five basic styles:

Avoidance (a/k/a denial)

Accommodation

Compromise

Competition

Collaboration

If you have already observed that these styles are a bit of a continuum, you are astute.  The most active and engaged styles are the last two – competition and collaboration, while the least engaged are the first two – avoidance and accommodation.  The whole idea of Conflict Resolution Month is to get people to think outside their comfort zone as it relates to conflict resolution, to educate people about the array of alternatives available to assist.  This can begin early – for several years I volunteered with The Conflict Center’s Peace Day programs in area elementary schools.  Many of us don’t otherwise learn these useful skills or get to see this modeled in our daily lives, let alone practice them with our peers.

In the interest of brevity, I will finish this post with a poem from a poet friend in New York who was a participant with me at a retreat last month.  Sometimes the most important thing about “owning” a conflict is to recognize how our lives would look without the existence of conflict.  This is often very difficult to consider – especially in the context of family relationships, sibling rivalries and unbalanced power dynamics.  This poem I just received from Richard, entitled “Yellow Birds” is about birds, space and the beautiful world we share.   So please read on.

Yellow birds, flocked to the earth,

fluttering to light, leaving to the air

her emptiness, as wind gives you leave

to land, brothers and sisters singing,

to the great green reception,

your welcome home.

 

Great space brings such joy, the

opening of the thick and heavy, the

beauty whose richness obscured, now

cleared—outbreath of the inbreath—to

breathe in without restriction, with

the freedom of the letting go.

 

So our angel unfurls her wings,

exultant in the wild air, beating as

breathing, lifting into the morning light—

soaring as walking, wide and wild, our

arms swinging, above and below

joined, one body beloved.

 

So I pick my way through the

Garden paths, past empty vines, under

the frosted purple grapes, hearing the

hawk’s cry, seeing his wings soar,

knowing as my feet trod every color’s

leaves, here I am in heaven.

 

By Richard Wehrman (with gracious permission from the author)

 

That’s all for now. . .  enjoy the fall, the ripening of grapes and the stillness it all can bring.

 ©Barbara Cashman  2014   www.DenverElderLaw.org

Elder Law and Probate Conflicts: Looking at Some Sources of Conflict

I visited the Chalk Art Festival last weekend at Larimer Square in downtown Denver.  Once again, my cousin Marty Calomino  was an artist exhibitor.

 

This is a picture of his chalk detail from Red Horse’s pictographic account of the Battle of Little Bighorn.  I love looking at chalk art because it is so unabashedly temporary.  I think part of that distancing ourselves from art – that happens to most of us after about the third grade or so, is as a result of thinking of art as something big and permanent made by “artists.”  What is deemed art tends to fluctuate over time. . . .  that’s where I tie in chalk art with conflict and old age!

Let’s face it – for many of us, old age is “the enemy.”  I include here beloved poets such as William Butler Yeats who has described it as a time of regret.  For others of us, old age has a different meaning.  Resident in this camp are poets like Walt Whitman, who penned

Youth, Day, Old Age and Night:

Youth, large, lusty, loving–youth full of grace, force, fascination,

Do you know that Old Age may come after you with equal grace,

force, fascination?

Day full-blown and splendid-day of the immense sun, action,

ambition, laughter,

The Night follows close with millions of suns, and sleep and

restoring darkness.

The fact remains that old age simply scares many of us.  Death at the end of old age, after an illness – or anytime we can see its approach – well , this is more than many of us can bear.  Hence the conflict.  Conflict is a part of life, so it is natural.  What is it about how we deal with aging, frailty and health care challenges that make these particularly susceptible to conflict?  The answer to that is, as my late father used to say “autobiographical.”    Sometimes the conflict is barely detectable or it is underground.  At other times, open hostilities may feature verbal violence, threats and even physical violence.

So where can someone turn for help? Finding the right fit to get help to manage or resolve a conflict can be a very daunting task.  As an elder and probate mediator I often hear from people – often adult children and other family members – who are looking for assistance in resolving their dispute before they feel a need to resort to the court system.  Often there is at least one person ( a stakeholder ) and sometimes a bloc of persons who will simply not take any action to remedy a situation unless they themselves choose to originate the action.

So let’s take a look at conflict at the end of life – and identify a few of its more predictable sources:

  1. Health care choices – who makes them and how to decide, what to decide

I have written a few blog posts on the topic of conflict in the health care setting at the end of a person’s life.  But this kind of conflict is not limited to a hospital or even home hospice care, and the conflict can arise whenever there is interaction among people, often family members, who have differing expectations, beliefs and different coping strategies for facing another’s illness and the end of life.  In Issue 73 (March 2013)  of the Health Care Chaplaincy newsletter (to which I subscribe) one of my posts  was quoted by Rev. Jill Bowden, director of chaplaincy services for Memorial Sloan-Kettering Cancer Center for my observation in a blog post that “a  patient’s impending death ramps up emotionality…and often leads to emotional, verbal  and sometimes physical outbursts of violence among family members and loved ones.”

If the right people can agree to participate, mediation or family facilitation can help family members productively manage difficult situations.  Overcoming the inertia to contact a mediator or other third party neutral can be difficult, and it is often challenging to convene all the participants (also known as “disputants”) to a family meeting or mediation, but it can be done.

2. Financial matters – who is in charge and who has the authority to manage a person’s affairs?

You might be wondering why I distinguish here between who is in charge and who has to authority to manage another’s finances.  The person “in charge” may be the person who is getting assistance from another with organizing and managing paying their bills.  More than once, in durable power of attorney scenarios where an agent has taken over a principal’s affairs, I have heard the agent describe themselves  as a person having “power of attorney over” the principal.  That really reverses the purpose of the POA and turns the tables on who works for whom.  The agent works for the principal and serves the principal’s interests.  Sometimes agents are ignorant of or forget this important detail.  On several occasions I have seen an agent who has been acting under a power of attorney and the agent has not educated him- or herself about how to behave and transact business for the principal as the principal’s agent.  Also, in a situation where there is one adult child “in charge” and another with the legal authority to act on behalf of the principal, this can be a another source of conflict.

3.Conflict in a decedent’s estate administration – after someone has died

If the illness and death of a loved one has produced conflict among family members, and if the conflict is still simmering or about to boil over, opening an estate can be the match in the tinderbox.  Sometimes the person who was in charge of or presided over a deceased person’s finances will have their authority revoked or rescinded by the disapproval of others.  The level of misunderstanding in this context of grief can increase exponentially.  Many families and blended families with adult siblings can figure out ways to weather this storm while others cannot.  The glue that held the family together, the deceased parent – on whose behalf the warring siblings were once able to rally together, is now gone.  Sometimes the wishes of a parent and their memory are insufficient to overcome their difficulties in getting along.  This adds to the individual’s and the collective grief.

In a later installment, I will talk about how these disputes can be aired and productively managed in a family meeting or, if the conflict is protracted – in mediation.

©Barbara Cashman     www.DenverElderLaw.org

Longevity, Conflict and Meaning

 

I must be on a roll here thinking about conflict at the end of life.  In light of the recent 911 call from the independent living apartments in Bakersfield and other recent things I’ve read – this issue can use much more discussion.  I even posted a link to my Facebook page    about it.     I liked reading Charles Ornstein’s recent article in the Washington Post entitled “I thought I understood health care.  Then my Mom went into the ICU.”  Read it here.    Ornstein’s poignant and personal account of the difficult decision faced by his family after his mother was in a coma and certain decisions had to made is very instructive.  I hear  frequently from clients and family members who are health professionals  that their training makes these difficult decisions much easier.  I am not always so sure.  Some oncologists, for example, are much more focused on a patient’s quality of life at the end of the course of a long and devastating disease, while others prefer to operate in more of a “superhero” mode, vowing to never give up on a patient’s chances for recovery.  There is no right or wrong here – all of these decisions are difficult, even when we have a pretty good idea about the choice and preferences our loved one has previously expressed.  I think of my own experience with my parents’ deaths.  My father died in March 2010 after a long bout with a combination of an undiagnosed neurodegenerative disease coupled with what was later discovered to be metastatic prostate cancer.  I accompanied him to the doctor on many occasions and was his health care agent for the last nine months of his life.  My mother, his wife of 59 1/2 years, worked for many years as a Registered Nurse  – but this set of considerations and +decisions was a whole different ball game.

It is usually extremely difficult to talk with others about death, and this difficulty is lessened somewhat when the conversation is initiated by an older loved one who wants to make his or her wishes known.  This doesn’t often happen.  There are ways to start the conversation though!  It only becomes more difficult in the face of a life-altering illness.    I have worked with many people with terminal illnesses.  It is not any easier to consider end-of-life issues even if they are more “real” in light of a life-threatening disease.  Because I know how difficult it can be for a doctor to raise the issue of hospice care and associated palliative care or quality of life issues with a patient – the patient may believe that their doctor is “giving up” on them – I will often take the opportunity to discuss these issues when appropriate.  I think the questions are much less threatening when you are discussing them with your lawyer as opposed to your doctor.  These involve, after all, legal questions.  Elder law is such a fascinating mix of and intersection of legal, medical, financial psychological and cultural questions.

I also enjoyed reading “Managing Our Miracles: Dealing with the Realities of Aging” in the latest issue of Bifocal, the publication of the ABA Commission on Law and Aging    In this article, Monsignor Charles Fahey refers to “the third age” – the one that is part of human aging that is beyond human reproduction and physical strength – which has become profoundly extended in recent years.  I have blogged previously about Erik Erikson’s developmental stages   and his wife Joan’s extension of  “The Life Cycle Completed” which included her own chapter entitled “The Ninth Stage.”   I think old age and elderhood need to be examined and re-examined in our culture so that we have a more inclusive definition of what is our human “useful shelf life.”  Many of the clients I see, along with assistance from their family members – do an excellent job of meeting the challenges of increased longevity.  As I remind people, this new age of elderhood is something that affects us in a variety of new and sometimes surprising ways.  This longevity can provide opportunities to live parts of a life that had previously been unlived, or not – depending on each of our own unique circumstances and how we find meaning in our lives.   As Hermann Hesse observed:

There’s no reality except the one contained within us. That’s why so many people live an unreal life. They take images outside them for reality and never allow the world within them to assert itself.

Longevity challenges that, and we generally have no frame of reference for today’s longevity.  We can create this new stage of life within ourselves and share it with our loved ones.    Dementia can be a side effect of longevity for many of us or our family members or loved ones.  We make meaning in our lives and others in our ability to “do” often as some kind of proof of our existence.  Dementia can challenge all those beliefs and ideas about who we are, what it means to “be” simply and no longer able to “do” as we did for ourselves and for others before.  This is part of the new reality of aging and longevity.  More on this topic later. . . .

©Barbara Cashman     www.DenverElderLaw.org

Old Age and Longevity as a Source of Family Conflict

Hmmm. . . .  what kind of a title is that?!  Well, it hearkens back to a bumper sticker from The Conflict Center (a local nonprofit  I used to volunteer with) that I have always liked: “Conflict is Inevitable, Violence is Not.” Conflict is natural, inevitable and often quite productive – when it is managed effectively.  Due to advances in health care and an overall increase in longevity, we are living longer than before and in unprecedented numbers.  We have never had this many old people on the planet before . . .  and here come the baby boomers in their “silver tsunami.”  We are all charting a course together on how to structure community that includes older people and values them not just for their “doing” but also for their “being.”  Beyond some basic and fundamental baselines, each of us is free – for better or for worse – to make our own choices about how we structure that community.

In my work I sometimes see people dying with large amounts of funds saved, but more often there is “enough” and in other circumstances people have already run out of money.  These things are rather difficult to predict, as a major factor is health care cost –many of the costs not covered in whole or in part by Medicare, and then there is also the choice about where and how to live (or with whom).  Many of us are facing financial challenges or difficulties as we look at aging in general.  I liked  “No Country for Old People”  – a post that I found thanks to my wills, trusts & estates prof blog subscription – read it here .

On page two of the post, you can watch Sam Waterston’s Saturday Night Live skit selling insurance to senior citizens to protect against robot attacks.  There are many forces coming to bear on individuals and families as we age in longer lifespans and in greater number.  So far, I haven’t had clients coming to me to deal with the aftereffects of robot attacks . . .  but there are the troubling and more subterranean fears about running out of money and losing autonomy.  There are more middle-income Americans aged 55 and older who are carrying more credit card debt (relative to income) on average than younger people.  You can read the recent report by EBRI, the nonpartisan Employee Benefit Research Institute here .

The tricky part about saving for retirement is knowing how much savings will be enough.  Many of us rely on financial advisors to help with managing investments and retirement savings, but the bottom line is that there isn’t really a “rule of thumb” for retirement savings.  While we are generally able to calculate our social security retirements benefits based on credits and retirement age, none of us knows how long we will live and whether our retirement savings will be enough.  For many of us, financial uncertainty is a source of stress during people’s working lives, so why wouldn’t it carry into retirement? Indeed, this can be an ongoing source of worry, with many older people not wanting to be a financial burden on their children.  Sometimes these can become a source of conflict as elderly parents struggle to manage their life activities in the face of declining health and capacities, which may include difficulties managing financial affairs.  One of the early warning sign of dementia is inattention to or mismanagement of finances.  Sometimes this can be evidenced by letting mail pile up, becoming forgetful about check writing, bill paying and handling cash.   For adult children and loved ones, the financial difficulties can be a source of conflict because children don’t often know when and how to step in to assist.  Sometimes this can make for a difficult situation, especially if a person with declining abilities becomes prey to psychological or financial abuse.  The signs of these forms of abuse (as contrasted with physical abuse)  along with neglect, are often missed.  Read the January newsletter from the Colorado Coalition for Elder Rights & Abuse Prevention here – it discusses elder abuse and medical care as a public health issue.

This is new terrain for nearly all of us.  Our grandparents and great grandparents didn’t tend to live that long, so we don’t tend to have a “model” of what a retirement span of 20-30 years looks like.  We mustn’t forget that we are in this together and there are valuable resources to help us.   The National Council on Aging has an informative fact sheet about economic security for elders available here  and their website also has helpful information about healthy aging.

How we deal with conflict – consciously or unconsciously – and whether we handle it in productive or counter-productive ways – is an important facet of aging.  Whether the “aging” we think of is our own or we are coping with losses sustained by age and frailty of a loved one, aging, disease, disability and death are all natural sources of conflict.  They are part of life after all.  How we choose to manage them is up to us.

©Barbara Cashman     www.DenverElderLaw.org

Can I Promote Family Harmony With My Estate Plan?

The short answer to this question is of course yes, but it may take some careful thought.   For most of us, our family is the most important thing in our lives – the most valuable asset, so what can be done to protect relationships in an estate plan?  Sometimes conflict can be prevented through merely providing clear instructions to the right people, and in other contexts – it is much more complicated than that.  We have come a long way since the “in terrorem” or “no contest” clause was a standard feature of wills, and many practitioners are of the opinion that the “no contest” clause – which purports to penalizes a challenger of a will – leaves the testator (person writing the will) with a false sense of security that the clause will prevent a lawsuit.

So what if your family perhaps doesn’t resemble the 1950’s TV family?  Most families today certainly don’t.   The AARP Magazine recently (April/May 2012) had an article about parent-child estrangements.    It features an interview with California psychologist Joshua Coleman, Ph.D. who recommends the following tips for healing a serious estrangement with your adult child:

  1. Own up to the conflict and take responsibility for mistakes you have made.
  2. Accept a contrary view and don’t try to prove them wrong (use empathic listening).
  3. Don’t try to make your child feel sorry for what they’ve done, this is likely to escalate resentment.
  4. Hear them out – ask questions and really listen attentively, not defensively.
  5. Don’t give up too soon, you may need to reach out long before the healing can begin.
  6. Avoid giving criticism or unsolicited advice.

Each of us is free to walk away from difficult or unfulfilling relationships, the article observes, but it also poses a more complicated follow-up question – what are we sacrificing for that freedom to walk away?

As parents live longer, adult children may struggle with the how and when of becoming an adult in their relationship with a parent, and for some that may never happen.  Many of our sibling relationships may get stuck in a particular time and not progress beyond into the present.  If siblings presuppose equal shares, then it’s a good idea to think about fairly typical scenarios in today’s world: what if one sibling is well off and another is struggling financially? How do you treat an adult child who has been the primary caregiver for a frail or ailing parent?  The best thing to start with, as Jane Bryant Quinn observed – is a conversation with children ahead of time about what you’re doing and why.  She quotes a New Hampshire estate planner who states “the greatest mistake I’ve seen in my practice comes when children have neither been apprised of a parent’s intentions nor been invited to participate in the decision-making process.”  Clients are of course free to not speak to their children, and some of my colleagues advise against it and tend to value more highly the privacy interest of the client making the will.  This is fine, but people making an estate plan need to know the potential cost for such silence.

Inheritance anxiety can also escalate where a surviving parent remarries.  Calling this a “blended family,” when the children are all adults may be a bit of a stretch.   Keep in mind that the assumption of inheritance among children may complicate their expectation of money with love, so meaningful communication (in whichever form works for the client) is strongly advised.

Finally, I’ll refer to a June 10, 2012, Denver Post article by Kirk Mitchell  which was about a suspected double murder-suicide in southwestern Colorado that may have been committed by a very resentful son who was not left ranch property from his mother.  For better or for worse, children expect inherit their parents’ property and siblings expect equal distribution.  There are many ways to soften the sting of unequal distribution.

It’s best to consider some basic aspects of human nature when you’re making an estate plan, along with the value of family relationships.  Another good idea is to address personal property – items that may have high emotional value like inherited jewelry and other personal items, things with sentimental value – in a separate memorandum (this is a nice feature of Colorado law) referred to in the will.  I often advise clients to share their stories about such items with their family members while they are still living, and in some circumstances –  if the client is so inclined – to give away these items to the intended recipients.  The bottom line – it is best to try and live in and honor those treasured relationships now so they remain the biggest part of your legacy.

©Barbara Cashman, LLC  www.DenverElderLaw.org

What Should I Look for in an Elder/Probate Mediator?

If you are at the point of looking for an elder or probate mediator for a dispute that relates to:

 •            Health or medical care decisions

•             Housing Concerns, Assisted Living or Long-Term Care

•             Powers of Attorney – Health Care and Financial

•             Dementia or other cognitive, physical or emotional decline

•             Advance Directives and End-of-Life Decisions

•             Respite care and Support for Caregivers

•             Independence and self-determination vs. safety issues

•             Suspected abuse, neglect or self-neglect

OR

If you are in the midst of a legal proceeding and are exploring alternatives, either with or without legal counsel, such as:

•             Estate or Trust administration and Distribution conflicts

•             Guardianship or Conservatorship proceedings in probate court

 

You may be interested in speaking to an elder/probate mediator about resolving your dispute in mediation.  The major benefits of mediation include:

•             A confidential and safe setting to discuss private family issues

•             Ability to retain control of the outcome of the process, as opposed to litigation – where a judge decides

•             Creative outcomes can be crafted after brainstorming and evaluating various options with a mediator

•             Participation of family members and others in mediation sessions

•             Mediation is less expensive and much faster than going to court

 

But one of the concerns you may have is about what to “look for” in an elder/probate mediator.  First a detail – I refer to this type of mediation as “elder/probate” or “elder and probate” as distinguished from “elder and guardianship” which is more common in other parts of the country, because the term “elder and probate” includes guardianship, conservatorship, estate and trust administration.  In January 2012, the Canadian Centre for Elder Law (British Columbia) published a 195 page report entitled “Elder and Guardianship Mediation.”  Unfortunately, it appears that the report is no longer available online as it was in January 2012.  I liked the report because it is carefully researched (599 footnotes) and has useful appendices include reference materials.

What I find helpful from a consumer’s perspective are the parts of the report that zero in on ethical issues elder and probate mediators face as well as some of the standards of practice recognized by mediation organizations.  These are particularly useful in Colorado, because the State of Colorado does not certify, license or otherwise regulate mediators.

It gives a background of mediation’s core ethical standards: voluntariness of participation (this notwithstanding the fact that a judge may order parties to mediation); confidentiality of process; and impartiality and neutrality of the mediator.  The universe of elder law issues which are appropriate for mediation are outlined above, but generally concern most types of inter-generational or multigenerational family disputes.  These include any matters which are referred to mediation by a judge in probate court.

According to the report (at 36-48) some ethical issues that elder/probate mediators and participants may encounter include:

•             Power imbalances among disputing parties that may need to be identified before mediation is determined to be appropriate

•             Mediator’s ability to remain impartial (this is important in mediation because it does not have the “checks and balances” of procedural fairness that is built into litigation process)

•             Self-determination and capacity to participate in mediation (here an elder adult may or may not be present at the mediation and may be supported by another person)

•             Accommodation of participants and ability to support parties’ participation in process

•             Confidentiality – this is one of the key benefits of mediation, and in a multi-party mediation or where health care or support professionals may be involved, this can be challenging

•             Suspected abuse or neglect – keep in mind that Colorado, unlike most states, does not have a mandatory elder abuse reporting statute – this issue in the mediation context is controversial and should be handled with care

•             Mediator competence – as stated above, Colorado doesn’t certify or license mediators, so this can be challenging to identify what “mediator competence” looks like in the elder/probate context.    Helpful here is the ACR Section on Elder Decision-Making & Conflict Resolution’s “Elder Care and Elder Family Decision Making Mediation Training Objectives” from 2011, available here

This information is provided as a number of suggested questions to ask when you are interviewing a mediator. Feel free to ask questions!

©Barbara Cashman, LLC   www.DenverElderLaw.org