A Sense of Place and Aging in Place

 

 

 

Isn’t this an amazing Saguaro cactus? A few weeks back I visited Scottsdale Arizona’s McDowell Sonoran Desert Preserve with a friend.  There were many types of cactus and other vegetation, along with plenty of birds.  The saguaro, especially one that gets “giant” status like this one – is truly a survivor of almost impossible odds.  It is nature’s way.  I also saw a couple smaller and younger saguaro cacti which benefitted from a “nurse plant” to a baby saguaro.  These plants or trees shelter the vulnerable saguaro during critical stages of development, and after making the ultimate sacrifice for the saguaro (the nurse plant takes less and less water and nutrients as the saguaro grows bigger and stronger), it stands for years as a tribute to its sacrifice.  Even in a harsh environment such as the desert, there is much cooperation and biological community.

 

On my drive down to Scottsdale, I travelled through the Monument Valley.  Here’s one of my pictures from the Navajo tribal park there.

Monument Valley

The Sentinel

I love this part of the country.  Along the way, I listened to Richard Rohr’s book “Falling Upward: A Spirituality for the Two Halves of Life.” Watch a YouTube with him here.     It is a wonderful book about aging growing and what we can do with the second half of our lives on a spiritual level.  This is a book about what we can come to understand with our aging, maturity and wisdom – as well as how we can come to terms with mortality and the meaning of our life.  The unprecedented number of people in their 80’s and 90’s has opportunities for meaningful elderhood that few of their forebears enjoyed.  The number will be even bigger as the huge wave of baby boomers gets older.  What will we do with this time in our later years?  Will we continue to enjoy retirement as a long vacation or as a chance to reconnect and engage with our community in meaningful ways?  Each of us has a choice to make about this to the extent we are given this opportunity of what to do with our longevity.

While I was listening to Father Richard (he is a Franciscan priest), I thought about the popular notion of “the bucket list” or some to-do list of things that many people agree they ought to see or visit before they die – as if life experiences, unique and personal – are somehow easily boiled down into some generic list of what a worthwhile human experience is. . . .  . !  Rohr’s chapter on the first half of life is about learning and practicing the rules, being a productive member of society and that sort of thing.  Sadly, many people get stuck there and seeing that there are many others in their company – may think that this place is the only destination.  Hence the “bucket list.”  Who writes their own bucket list – or is it a bucket list because it is agreed upon by a group that it is meaningful?  His reference to falling into the second half of life is a place where a person can be freed from the constraints – internal, external, community.  A journey of free fall that is like a remembering of who we are, what we came here to be and to do.

This reminds me of the lyrics of a favorite Enya song – “Pilgrim” (watch a beautiful video of the Hubbell Deep Field photos with the song as audio here ):

one way leads to diamonds,

one way leads to gold,

another leads you only to everything you’re told….

oh pilgrim it’s a long way to find out who you are.

It is a long journey, but as Father Richard explains and reiterates, the second half  is a beautiful journey of freedom which each of us must discover for ourselves.  I would say it is a pilgrimage of the heart, to remember.  So – where is that physical or emotional or spiritual place for “aging in place”?  Is it in a multigenerational home, is it with the support of or under the care of others, or is it with the “independence” we fancy that we have enjoyed throughout our lives?  That is up to each of us to decide – or not, depending on our own inclination.

 

Perhaps the whole journey of life is as a return from exile, the experience of exile – moving away from the known and its sense of belonging.  Redemption is possible when the way toward home is found, through some place of light, through the illuminated darkness.

Could this aging in place provide the opportunity to move beyond one’s constructed self, the identity of who we have become in our accomplishing phase of the the first half of life?  Might this resulting freedom allow one to consider the wholeness of or our sense of place in the world, to reassess our place in the community?  What about your place in the universe, and in the struggle to wake up?  More on this topic later……

 

©Barbara Cashman 2013     www.DenverElderLaw.org

Financial Abuse of the Elderly and the Durable Power of Attorney

You might be wondering about the ability of elder law attorneys to curb abuse of durable powers of attorney (POAs) by agents who are abusing their authority.  With the ready availability of durable power of attorney forms on the internet, it is simpler than ever to get such a document in front of an elder for their signature.  Unfortunately, it can lead to problems later on because many people don’t understand how a durable power of attorney (or general durable power of attorney, for financial affairs) is designed to work.

A general durable power of attorney (POA) is an arrangement where one person (the principal) appoints another person (the agent) to act on behalf of the principal regarding matters specified within the scope of the POA.   Under Colorado law, powers of attorney executed after Jan. 1, 2010 are by default “durable.”  What makes a POA durable is that it can survive the disability or incapacity of a principal.  A POA is an important tool people can use to allow others to assist them in the event they need help managing finances.

Sometimes I represent a principal whose agent under their POA is behaving badly.  What I often find with POAs is that very few people who have executed them (the principals) really understand how the document is designed to work.  Compounding the problem is the fact that many of the agents acting under POAs do not have a grasp of how they are to perform as agents and they are unfamiliar with the kind of obligations they owe to their principal.  I will use some examples to generally illustrate this kind of situation.

What Can Happen with an Ill-Informed or Rogue Agent:

 

  1. After the principal signs the POA, agent promises to take care of principal and then “takes over” everything and principal is left in the dark and made to feel helpless by their agent who is now “running the show” and not listening to what principal wants;
  2. Agent relishes the new found power over the elder parent – I have heard in this context the agent express  “I have absolute power of attorney over you” – you can imagine how this makes the principal feel – the principal who retains the ability to revoke the POA and fire the agent (as long as principal retains capacity to do so);
  3. Agent is acting under the POA  but is treating the principal’s assets as if they were his or her own assets and not those of the principal, as agent may mistakenly believe that this is one of the purposes of a POA; and
  4. Agent may think, believe, or try to convince others that there is nobody else in the family who cares about the elder principal (typically a parent or other family member), and therefore  whatever agent decides to do for the principal will be just fine, since no one else is looking out for the principal.

What the Law Says:

  1. The principal is “the boss of” the agent – not the other way round. The durable POA is a document designed to prevent the need for a protective proceeding (an expensive trip to probate court) and as such is designed to make the principal’s life easier by giving legal authority to an agent to conduct financial transactions on principal’s behalf.  The agent is under a duty, pursuant to Colorado’s Uniform Power of Attorney Act, to provide information to his or her principal.
  2. To the extent the principal is able, he or she directs the activities of the agent.  If principal is unhappy with agent’s job performance, they may revoke the POA and terminate agent’s authority.  This can be complicated if agent has already gained access to a principal’s accounts, as the third parties who recognized the POA and agent’s authority to act must be notified.
  3.  This behavior by an agent is known as “self-dealing” and is not allowed.  An agent owes his or her principal certain fiduciary duties to take care of principal’s assets.
  4. The majority of elder financial abuse in the POA context is perpetrated by an agent who states to others and may believe themselves – that they are the only one who is “helping” the principal.  Sometimes an agent may adopt tactics that are similar to those used by perpetrators of domestic violence – including verbal and emotional abuse, controlling access of others to an elder principal, and alienating the elder from others so that they will be less likely to come to the elder principal’s aid.

From this perspective, I see many disadvantages of a DIY (do it yourself) POA document.  When I prepare durable POAs for clients, I make sure there is the requisite level of trust that the principal has in the selected agent.

It is important that, if you do hire an attorney, they give you adequate information about the importance of naming the right person (especially about avoiding the wrong person) as agent.  As principal under a POA, you may also want to consider whether it is approrpiate for your attorney to be able to speak with your agent about using the POA – that typically requires a waiver of the attorney-client privilege.  Confidentiality is a hallmark of the attorney-client relationship.  If one of my clients, for example an elder principal who executes a POA, answers yes to my question about whether it is okay to speak with his or her adult child agent about how to execute the principals’ wishes according to the POA, I do my best to ensure the client understands what that means and I get that consent in writing.  If you are interested in more of the technical aspects of the fiduciary relationship owed by an agent under a POA to the agent’s principal, read my colleague Dennis Whitmer’s article here.

To assist in actually using the document for its intended purpose, I typically give my POA clients an instruction sheet so that when the client (the principal) talks to their agent about what they want done and under what circumstances they should act on principal’s behalf, the agent will have some instructions about things they must do for the principal and actions they must avoid.  I usually tell clients that I hope they never have to use their POA, but in the event it is needed, it is important that it be “ready to go.”

Mismanagement and abuse of authority by an agent acting under a POA is a problem.  Many elders feel ashamed to talk about the harmful actions of an adult child, and sadly, this can contribute to the loss of security and further isolation of an elder principal.   If you suspect that an elder is suffering financial mismanagement, exploitation or abuse at the hands of an agent under a POA, it is important to know that you can help – don’t wait until it is too late.   The Colorado Coalition for Elder Rights and Abuse Prevention has a helpful website with links to resources.  In addition to criminal penalties for abuse of a POA, there are also civil actions available for redress by a wronged principal.  In a recent trial (March 2013) in Jefferson County district court, a jury returned a verdict in favor of the plaintiff (principal of a POA) who sued her (agent under POA) daughter for abuse of a POA by transferring her mother’s interest in a house to herself.  On claims for civil theft, breach of fiduciary duty, breach of contract and unjust enrichment, the jury found for the plaintiff on all claims and plaintiff was awarded attorney’s fees and costs.  (Hoit v. Newbrough, 11-CV-5117)

 ©Barbara Cashman 2013     www.DenverElderLaw.org

Don’t Miss the 2013 Denver Senior Law Day on Saturday, July 27th!

The Colorado Bar Association, of which I am a proud member, and Continuing Legal Education in Colorado, Inc. and the Denver Bar Association will be hosting the 15th Annual Senior Law Day in Denver on July 27 at the Denver Mart (formerly Denver Merchandise Mart).  Senior Law Day is a huge draw for the public, with lots of informative presentations and booths and plenty of coffee for early risers.  For this year’s event, there are more than thirty informational workshops offered for the public and each person attending will take home a 2013 Senior Law Handbook.  You can register for this event here.

If you can’t make it to the event, you will be able to read chapters to the Senior Law Handbook online at www.seniorlawday.org .  I am a legal sponsor of this event, which is an important public service for seniors and their families.  Sean Bell, Esq., is once again the editor of the well written and informative Senior Law Handbook.  In addition to the sponsors, there will be many exhibitors in attendance.

A new feature of this year’s event will be an “Ask a Lawyer” opportunity during the event that is sponsored by Metro Volunteer Lawyers (MVL).   MVL is an important community resource for people with low incomes.  Its mission is: “To bridge the gap in access to justice by coordinating the provision of pro bono legal services by volunteer lawyers within the Denver Metro Area to people who could not otherwise afford legal services for their civil legal issues.”  Over the years I have provided my services to people through this important and worthwhile program.  As a new feature of Senior Law Day, attendees can sign up for a 15-Minute Ask a Lawyer Session with an attorney that will be limited to Trust and Estate and Elder Law issues.

Don’t miss this informative and accessible way to find out more about legal issues and related matters facing seniors in Colorado!

Who is the Real Beneficiary of a Spiritual-Ethical Will?

This title is a bit of a trick question – by ethical will I refer to a nonlegal document, a personalized writing by someone (usually a person who has written a will, as in the legally recognized document) also known as a testament or legacy letter.  It is often characterized as an aid to the estate planning process, sometimes with the assistance of slogans like “pass on your means with meaning”   or “identify your values and not just your valuables.”  So far in my practice I have had only one client, the mother of young children, include an ethical will as part of her estate planning documents.  There is no “form” for this kind of an endeavor – it is as unique as each one of us.

We make meaning in our lives in many different ways, and an ethical will is one means that has been used for many generations and has ancient origins.    From an historical perspective, there are five broad types of legacy letters ethical wills and they include:

1. Explanation. An explanation is most closely linked to the will, and can

explain the circumstances and logic behind an action or choice directed in

the document. It might offer a statement as to personal reasoning for

the will writer’s (a/k/a testator’s) decision to dispose of his/her assets in such a way. The use of

this type of testament remains somewhat controversial because it may be

closely linked to the will and may give rise to misunderstandings which may

create conflict;

2. Expectation. This is a statement – expressed as a desire – about how the

testator would like an inheritance used, to transmit values or guidelines

about how to conduct oneself, or what he or she would like the recipient to

accomplish. These can be particularly useful for parents and grandparents

who desire to pass along their values and indicate their support that such

values continue, and to state them in ways that are personally meaningful to

the writer;

3. Affirmation. These are the words that many grieving family members long to

hear because many of them have a need to know that they mattered to the

decedent. If they didn’t hear such words in life, such healing words in a

legal document may prevent conflicts among beneficiaries;

4. Historical. The historical statement can be a genealogy of family members,

expanded with personal traits, experiences or values, or might explain the history or background of a specific bequest such as a family heirloom or

other prized possession; and

5. Statement of Values. A statement of a client’s personal ethics and values is

often a reflection of his or her own life. Such statements often include

events that formed the client’s character, and can be combined with

historical statements as well.

Generally speaking, clients have the opportunity to think about their lives in the context of transmitting the meaning of their life to another – whether this is a relatively narrow, experience-based kind of wisdom or a broader approach relating to lessons and values.    You can find more helpful information about ethical wills here.

There are many different reasons to consider writing such a document and most would conclude that it is an aid to the estate planning process – even if relatively few of estate planning clients end up drafting such highly personalized documents.    So what is the real benefit to a legacy letter or a spiritual-ethical will?  The benefit is to the author of the document. It offers an invaluable opportunity to consider, to process and write down the important things – ideas, events, values, and other “intangibles” in one’s life so as to transmit to another.  But even if the writer doesn’t end up completing the document, or including it in his or her will, there are important benefits to consider.  Undertaking such an effort creates the space to think deeply about what  a life means, what is important, what you value and what you want to pass on to future generations.  There can be little doubt that the best way of ensuring those values live on is by actually living our lives consistent with such values, but the spiritual-ethical will goes beyond that (and it of course can be no substitute for a life that was lived accordingly to those articulated values).

Far beyond the human’s basic needs is the need to make meaning or sense of one’s life.  Perhaps Ernest Becker was correct when he offered the term homo poetica  or man, the meaning maker, for an alternate name of our scientific classification.  In the middle age of our lives, or perhaps much later at the ninth stage (as identified by Joan Erickson in The Life Cycle Completed), we can gain much from such an exercise, which benefits us likely more than those who read such a document after we are gone.  It can also help those facing terminal illness or anyone struggling with the meaning or lack of meaning in a life, in one’s existence.  Wherever you are in your life, writing a legacy letter or spiritual-ethical will can help process the meaning of your own life as well as validate the importance of love and connection to each of our lives and strengthening the fabric of community.  Each of us is here for a reason and each has something to contribute – writing a spiritual-ethical will can help put together the pieces of a life in surprising and meaningful ways.

©Barbara Cashman 2013     www.DenverElderLaw.org

Why Are We So Afraid of Alzheimer’s and Other Forms of Dementia?

Barb Cashman in IrelandI thought this recent post especially telling – that Stephen King’s biggest fear is Alzheimer’s.     Many of us know the basic facts about Alzheimer’s and other forms of dementia – and they are scary.  But to look at the fear more closely, is it the basic, elemental fear of losing control, of losing who we are, who we have become, that a disease that could bring our death could do so in  a way that is impersonal in its robbing of identities?  Dementia disregards all conventions of what might be recognized as a “good death:”  a death that the dying person and the survivors can accept and “live with;” a death with some kind of meaning; an instantaneous death without fear.  But what about the dignified death that is perhaps accepted and welcomed when it enters the room?  Is this possible?  From time to time I represent people who have lost a loved one to Alzheimer’s or some other form of dementia.  It is often a long and protracted grief because so much of it is anticipatory, a grief for someone who is “gone” but has not yet died.

If dying is a process of letting go, then dementia can be a very long version of that letting go.  The letting go in an explicitly public way, as it affects one’s interactions with others and the ability to care for oneself.  If the fear of Alzheimer’s is about disintegration of the ordered self that we have come to think of as who we “are,”  then it is a most potent fear because we haven’t determined either a cause or a cure for Alzheimer’s or other forms of dementia.  All our advances in medicine, technology and drug therapies – and we are still largely helpless in the face of this disease.

So back to the fear of this disease. . . .   Do we fear it because it is a threat to civilization? Freud’s view of civilization is essentially a defense against the soul world, the forces of nature and her elements: earth, water, air and fire.  The elements are subject to constant change and so contain inherent creative, generative as well as destructive powers – powers that are largely beyond our control.  What to do about this?   If our view of civilization is of a defense against the chaos of nature, and the ego development is a tacit rejection of nature and the soul world, then perhaps one way of making sense of dementia is to look at what is the person who is afflicted with dementia.  Some of us remark “he’s just not the same person anymore” and we focus on all the losses sustained as the person with dementia becomes less and less capable of caring for themselves, managing their affairs or otherwise being able to maintain their grip on “reality.”  We focus on the medical aspects of the disease, diagnosis, prognosis and what drugs can be prescribed, the rising tide of incapacity.  We look at disease and death as the enemy, something to be fought against.  I am in no way suggesting of course that we give up on or diminish all the neuroscientific advances that shed light and offer a more complete understanding of our brain circuitry, but I am suggesting that our fascination with science and the material world can distract us from the bigger question – who are we are what are we here to do?

Nature and the soul are part of the mystery that we cannot control and struggle to make sense of.  The medical field is divided about how to address devastation of Alzhemier’s.  Dr. Jerome Groopman had an article in The New Yorker entitled “Before Night Falls” about this and there is controversy that goes much deeper than that.  I’m thinking of a recent post from The Myth of Alzheimers.

I found this article in my latest SciAm Mind intriguing: Can Caresses Protect the Brain From Stroke?  which is essentially about the power of human touch and how essential it is to our neurocircuitry.  In case you have forgotten about this story, which has played out over many years in different hospital NICU units, it is about the “rescuing hug” of a premature twin newborn that saved her struggling sibling by being placed in the incubator next to her and then extending her arm around her twin.

Is part of the fear of the disease and its progression based on this battle we have with nature – our own nature and nature itself?  In some ways, dementia is a peeling back, a withering away of all the personality and identity that has accumulated from all the doing of a life and it is a return to that fundamental nonverbal, preverbal means of communicating based on being, and not the constructs of doing.  People with dementia often become frustrated due to their difficulty or inability to communicate or organize their thought or mobility processes.  Human touch, as nonverbal communication can help calm persons with dementia and can also provide important benefits for the person giving the calming touch – particularly if they are a family caregiver.  It is important to remember that much can be done to prepare for the disease and its progression, and important wishes can be expressed about end of life care and about what is important to individuals and family members.  It is of utmost importance to have a health care power of attorney executed and, if desired, advance directives as well.

I agree with the late Tom Kitwood, that people with dementia have much to teach us.  You can read more about his alternative theory of dementia , not as a medical model but rather as a dialectic between the personal, social and neurological aspects of a person.

A bigger question might be to consider whether our life is a long remembering or a long forgetting.

©Barbara Cashman 2013    www.DenverElderLaw.org