October 21-27 is Pro Bono Week!

Maybe you’ve heard about attorneys and pro bono work. . . .   The full length version of the term is pro bono publico – which means for the public good; for the welfare of the whole.   Pro bono isn’t just an American phenomenon – check out the Wikipedia entry about it here .     I once worked with a marketing person who threw something into a package and called it “pro bono.”  But pro bono does not mean free (the Latin word for free is gratis . . . )  and I would rather go with the approach of U.S. Attorney General Eric Holder:

We are bound by a responsibility to use our unique skills and training – not just to advance cases, but to serve a cause; and to help our nation fulfill its founding promise of equal justice under law…The obligation of pro bono service must become a part of the DNA of both the legal profession and of every lawyer.”

He made this statement last year at the National Pro Bono Summit on October 24, 2011. So why do many lawyers perform pro bono work?  There are several good reasons including:  (1) the highest poverty rate among Americans since 1993 (persons qualifying for no fee or reduced fee civil legal services); (2) ensuring access for the poor helps keep the judiciary independent; and (3) respect for the rule of law.

In Colorado, Chief Justice Michael Bender declared October as Colorado’s first annual legal professionalism month.   You can read more about that here.      What do professionalism and pro bono have to do with each other? Lots!  One of Chief Justice Bender’s four goals identified in his proclamation is to encourage the entire bar to “recognize the broad legal needs of our community and improv[e] public attitudes toward the profession through a renewed dedication to pro bono service.”  The month culminates in an “Assembly of Lawyers” at the Boettcher Concert Hall, where the Colorado Supreme Court, sitting in special session, will administer the oath of admission to the newest bar admittees – pretty cool.  Read more about it here.

I do the bulk of my pro bono service through Metro Volunteer Lawyers,    an organization serving low income clients in the Denver metro area that sponsors clinics, provides information to the public and finds pro bono  attorneys to represent indigent persons in need of a variety of legal services.  I have done pro bono work for MVL clients in my usual practice areas of estate planning and probate but have also represented folks in family law court for MVL.  MVL is presenting a CLE this week in honor of pro bono week – check it out here.  Volunteering with MVL is easy and very gratifying.  Click here for more info.

One last word about helping others through pro bono service.  Many people don’t realize that our human brains are wired to help each other out and to feel good about it.  Acts of loving kindness to assist others can benefit us in many important ways: improve physical well-being; raise self-confidence and self-esteem; encourage friendships that help your immune system; and it may help you live longer.    In fact, we might be able to volunteer our way to a healthier brain – fMRIs (functional magnetic resonance imaging) show that the neurology of unselfish acts, such as making a donation, lit up the mesolimbic pathway (the limbic system is often referred to as the reptile or primitive part of our brains) that facilitates the brain’s experience of joy.  I must add – as an elder law attorney – that this can be a beneficial thing for older “at risk” or isolated adults.  Volunteering by elders helps them in many ways, one of which benefits cognitive function as a consequence of our lifelong neuroplasticity.  Here are links for a couple very interesting studies which should be encouraging news for elders wondering about whether there are benefits to volunteering.  Volunteer service is a great way to engage in your existing community and also to find a new one!  If you are skeptical and want more proof, read this amazing little book “The Hidden Gifts of Helping,” by Stephen G. Post (Jossey-Bass:2011).  If you are wondering about pro bono services tailored for legal problems of elders in Denver county, check out Elder Justice a great public resource.  I was happy to interview their executive director, Sharon Mohr, in honor of pro bono week.  You can see the vlog (video blog) post here.

 

This Week is National Estate Planning Awareness Week

Estate planning “awareness” week – really?!   I know at least one person who would respond “hmm. . . .  sounds like about as much fun as colonoscopy awareness week, but it takes longer!”  Okay, the fact is that many of us don’t think about planning because, well – we’re procrastinators.  I liked this Scientific American Mind article from 2008 about kicking the procrastination habit.   The fact remains that the majority of people don’t make any plans for their “estate” or many preparations for their demise.  Some folks would observe “estate? I don’t even have an estate!”  I can assure you that even if you don’t need to be concerned about the drastic change in the estate tax, there are sound reasons to at least consider estate planning.  I find that many people come in to see me for their own planning after they have lost a parent, sibling or friend whose affairs were not “in order.”  A little bit of planning can go a long way here.  I remind people at the close of an estate planning engagement that it is important for survivors to be able to locate important information and location of items (I give my clients a letter of instruction to accomplish this goal, but they are the ones responsible for completing it at home.  It allows survivors to focus on grieving and not scrambling to locate important documents that they may or may not be aware of, and these include digital assets. . . .

So what are the basics for estate planning?  Well, the kind folks at the National Association of Estate Planning Councils (the Women’s Estate Planning Council, to which I belong, is a member) have a nice overview available here.

Sometimes I also hear, I need a will because I don’t want the state to get my stuff . . . . The state rarely “inherits” a person’s estate (this is called escheat), but if you don’t have a will, the law of intestacy, inheritance without a will – is how the distribution of your (probate) assets will be determined.  It is up to you to plan your estate, otherwise Colorado law will make it for you.   So, do you need a will?  If you know who will be able and willing to take care of your affairs after you pass away, how the law of intestacy will divide up your probate assets and you have all of your beneficiary designations for your nonprobate (as distinguished from probate) assets going to the right people or institutions, well maybe you don’t need a will . . .!

Most of us (me included) aren’t prepared to make that conclusion.  For example, we want to be able to pick the best person (who we have previously consulted) as our personal representative, the individual responsible for wrapping up the affairs of our estate.  If we have minor children, kids in college, or a disabled adult child, we will probably want to have a testamentary trust, otherwise there can be the “lottery effect” to contend with – most of us don’t want that!

This is a reminder that estate planning is about much more than money and assets! It is also about ensuring that your family members are taken care of in ways that benefit them and don’t cause undue conflict.  This may crop up around a home, personal property or business interests.   Here’s another NAEPC document about this.   If you are a single parent, part of a blended family, a small business owner or solo attorney like me – you especially need to look into estate planning so that there can be arrangements made in the event of your disability or incapacity and a smooth transition in the event of . . . . the inevitable.  Yep, I’ve got a will and powers of attorney that cover my law practice so that it (and my clients) won’t be left in the lurch if/when something happens to me.   But don’t get me started about many of my “shoeless cobbler” colleagues. . .  There’s lots of great information available to become more “aware,”  – isn’t that the first step after all?

 

What is Elder Law and How is it Different From Estate Planning Law?

 

Elder law is a practice area that started out as an outgrowth of the more traditional trusts and estates field, but is essentially a general practice area that is concerned with the needs and legal challenges of older people (elders) as the American lifespan continues to increase.  With medical advances and relative affluence, people are living longer, and periods of incapacity are more common, along with a greater incidence of cognitive and physical disability.

Other factors that impact the growth of elder law are the outsourcing of some of the care that families have traditionally provided elders, which has resulted in no small part from the number of women in the workforce, along with family members living apart from each other geographically.  There have never been so many octogenarians on the face of the planet, and  this has important implications for attorneys practicing law, particularly for those of us who are baby boomers.

 

What are some of the “legal problems” associated with longevity relevant to elder law?  Here are some to consider:

      • Wills (especially important if part of a blended or nontraditional family, or if no children)
      • Durable Powers of Attorney (preventive tools used, among other things – to keep people out of guardianship or conservatorship proceedings in probate court);
      • Longevity  Estate (financial and tax) Planning;
      •  Elder Abuse and Financial Exploitation: Prevention,  Detection and Redress;
      • Age and Disability Discrimination in Housing;
      • Marriage, Common Law Marriage; Divorce and keeping the peace in a blended family;
      • Health Care Power of Attorney and  Advance Directives (living will);
      • Guardianship and Conservatorship probate litigation;
      • Capacity Issues in a variety of contexts (especially troubling financial concerns for someone who is starting to “slip” cognitively);
      • Probate Decedent’s Estate or Trust  Administration; and
      • Medicare and Medicaid planning.

Because elder law is a practice area defined by the client served, which means the representation of older people (elders), this sometimes involves the presence or participation of family members or other persons who are involved with caring for or supporting the elder. Elder law has developed from a relative niche practice when it was first recognized as such about thirty years ago – to more of a general practice area. As a practice area elder law is constantly developing,  and will continue to do so as we see the number of baby boomers age.   The durable power of attorney for health care is probably the most recognized symbol of the rise of the number of elders in our population. Our society will continue to grapple with many longevity and bioethics issues, and quality of life questions will loom larger as baby boomers age and the number of elders rises.

So how do elder law attorneys help their clients?  I like to say that the law in this practice area is “a healing profession.”     We help individuals, who are often supported by and rely on family members and other loved ones manage disability – negotiating the short term and long term measures to assist an elder in financial and health care decision-making.  We can also identify the legal requirements for maintaining an elder’s safety net (aging in place in community, what is effectively “social security”).  An elder law attorney with some EQ (emotional intelligence)and empathic skills can also have frank conversations and  look at legal problems in the context of financial, medical, emotional , and autonomy factors and values important to the individual.  Many elder law attorneys have a wide and deep network of allied professionals who perform work for elders as professional guardians, professional fiduciaries, money management and bill paying services, geriatric care managers, among others.

A big part of elder law is about counseling clients about how available options and alternatives can serve their identified strategy and  goals.  Each of us who has attained “elderhood” has done so in an individual way, based on certain values, attitudes and approaches to life.  You may not think that an attorney would be asking clients about these personal matters, but they are often a substantial part of how an elder law attorney approaches a client’s problem.  Why would this be beneficial to the client and his or her family or community? I think it is because many of us – me included – take a big picture approach to our client’s problems, applying helping principles in a multidisciplinary way and with a focus on empathic listening.

Here I would also offer an insight from  a favorite book of mine – Daniel Pink’s “A Whole New Mind,”   which talks about “high concept, high touch”  and in terms of the elder law attorney’s work, it takes us from being a document preparer to being a symphony conductor.   A symphony conductor . . . . really Barb?!    What I’m talking about is an ability to do my work for clients with sensitivity to the big picture of creating something unique for them  that is beautiful, an artistic expression of legal craftsmanship.  What Pink writes about is a shift from IQ alone to include also EQ (emotional intelligence), an increased value placed on creativity, and the importance of meaning-making in our work lives.  All of these are important considerations for solo attorneys, particularly those working in elder law where there is often chaos, loss, grief, and high levels of emotionality among clients and their family members.   I know that focusing on how I am helping people in creative and compassionate ways makes all the difference for me – it is why I love doing the work I do for clients.

Aging in Place and Person-Centered Care: It’s About Love: Part II

 

Last week I blogged about the connections between aging in place (as part of a community), person centered care and. . . .  love, and so here’s the next installment.  Aging in place is probably the most desirable “lifestyle choice” for elders because it holds people, even as they age and may become less capable on living without assistance, in their identities.  What I mean by this is that as a person ages and may become less “capable” of managing themselves and things on their own, there is a continuity of personhood that is allowed to remain intact by means of remaining in their community of choice (as opposed to a community of necessity).

What’s love got to do with it? Yep, here’s the Tina Turner video to go with that question.  But seriously, I think love has a lot to do with our identity, aging and how we maintain our connections with others and cultivate new ones as we age.  I have done a blog post about love before, and my “love agenda” as it were was made public in a five-minute Ignite! program I presented back in June 2011 at a Denver Bar Association event (it was called “Letting Love Out of the Closet).  So following on the previous post, where I referred to Joan Erickson’s elderhood as the ninth stage of human development and “gerotranscendance,” I wanted to take a look at how love and connections to others between the generations benefits us all.

So here’s the big question: What is the value of old age; or phrased differently – is getting old worth an entire lifetime to attain?  Where I part ways with Joan Erickson’s ninth developmental stage is with her focus on doing at the expense of being.  Is the focus of our elderhood on continuing on as before, as we have always done, or is there some other wisdom or consciousness element that can be embraced – one that is distinctly part of “being” that is apart from “doing” and “doingness.”  If we reach elderhood and we are still stuck in the socio-cultural context of personhood that is focused on the physical aspects of life, capacity to act independently as a rights-bearing individual, and our psychological approach is still focused on the individuality or unconnected autonomy, aging and elderhood is seen as one long series of losses.  What is there to be gained from it?  If we look at the higher levels of perceptions, the social connections people have in communities and transcendent meaning (moral understanding, meaning in suffering, spiritual beliefs).   There are several studies (some of them a bit controversial) about links between religion – especially being part of a religious community and longevity.  I am more concerned with the “successful” aging aspect, so I am thinking about Paul Wong’s chapter “Spirituality, Meaning and Successful Aging,” in the 1998 book “The Human Quest for Meaning: A Handbook of Psychological Research and Clinical Applications” at 366.

So what about the tension between the doing and being aspects? I liked what I read in ”Living Your Unlived Life,” by Robert Johnson,  a noted author and Jungian analyst, and Jerry Ruhl (Tarcher: 2007). In the fourth chapter of this book, “Learning the Timeless Art of Being,” Johnson examines the art of slowing down as a continuation of answering midlife’s call to “greater wholeness.”  Focusing on being means saying no  to some of the old ways, which are based on the fear that if we slow down – we’ll just get “run over” (read: rat race continued).  Some of the adages that illustrate this come to mind – “don’t just do something, stand there!”  (the White Rabbit in Alice in Wonderland) and “by standing still we overtake those who are running” (from the Upanishads).   Johnson describes an exercise in his book (at 75-77) he calls “the doing/being shuffle,”   designed to bring focused awareness of being (as opposed to mindless doing) into daily activities.  It doesn’t matter how late we come to the practice or art of mindful living, it is always available to us!  An important precursor to successful elderhood then is that “middle passage” of midlife between youth and old age.  This is where we are met with the choice:  will old age be viewed as a series of declines in productivity, usefulness and personal relevance or will it be seen as an opportunity to focus on consciousness, spirituality and social connectedness and relevance to other generations?  The latter view places on the shoulders of older persons the assumption of responsibility for preparing the next generation and nurturing them in ways that only elders can.  This difficulties of growing up as we grow older and taking responsibility are described by Robert Bly in his 1996 book “The Sibling Society.”

As our culture faces the largest number of elders in history, I think it is worth taking a longer look at what it means to be old, to be an elder, with an eye to restoring and maintain the dignity of life and the mystery of it, including the mystery of love.  Why are elders important to younger people?  I told someone the other day that I hope to be an old person some day.  What are the different meanings of that?!What does it mean to become and elder?  Is there any “initiation” for elderhood?  What is the nature of today’s intergenerational social contract?  I know, that is just too many rhetorical questions!  So, I’ll end with a quote – actually “a blessing for old age” by the late John O’Donohue, from his 2008 book “To Bless the Space Between Us” :

May the light of your soul mind you,

May all your worry and anxiousness about becoming old be transfigured,

May you be given a wisdom with the eye of your soul,

to see this beautiful time of harvesting.

May you have the commitment to harvest your life,

to heal what has hurt you, to allow it to come closer to you and become one with you.

May you have great dignity, may you have a sense of how free you are,

And above all may you be given the wonderful gift of meeting the eternal light

and beauty that is within you.

May you be blessed, and may you find a wonderful love in yourself for yourself.

©Barbara Cashman     www.DenverElderLaw.org