Longevity Planning – Planning for Long Life and Likely Disability


denver elder law

Lucina’s Spring Blossom

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

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

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

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

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

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

©Barbara Cashman  2014   www.DenverElderLaw.org

The Death Certificate as Proof of Having Lived

Proof of Having Lived

Proof of Having Lived

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

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

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

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

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

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

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

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

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

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

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

Who can sign a death certificate?

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

What does the death certificate say?

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

What about an autopsy – how often is that performed?

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

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

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

 ©Barbara Cashman  2014   www.DenverElderLaw.org

April 16, 2014 is National Healthcare Decisions Day!

Bridge on the Maigue at Adare Manor

Bridge on the Maigue at Adare Manor

What, you say you haven’t yet seen the greeting card celebrating this event?  Well, it might contain a warm greeting along the lines of “thank you” if someone you love has executed a health care power of attorney or other important medical decision-making document.  It could express this sentiment of gratitude for the peace of mind that comes from advance planning so as to preempt any emergencies that often give rise to stress and conflict.

Really – I don’t think the greeting card idea is that far-fetched . . . !

Okay, back to the title of this post.  You can visit the national site for the 7th Annual National Healthcare Decisions Day here.  You can also visit the Colorado local Life Quality Institute’s link to their very informative page about advance planning and that page has Colorado specific documents.  Keep in mind that each state has its own laws around advance planning and patient self-determination, so it’s good to have a state-appropriate document!

Some of you have heard about the Denver Death Café, a place to chat about end-of-life issues and mortality.

A good resource to help people get started in the often difficult conversation around end-of-life wishes is The Conversation Project, started by journalist Ellen Goodman.  The project recognizes the important fact that most people recognize that making sure family members aren’t burdened by difficult decisions around end-of-life care, but that not nearly as many of the folks who think the conversation is important have actually had that conversation.

Each of us knows our days are numbered, but like so many people, we get caught up in our daily life tasks and we often neglect the important tasks in favor of the urgent ones.  One easy way to get started in Colorado is to go on the DMV site and add an emergency contact to your driving record.  Once you do this, you might consider becoming an organ donor if you don’t already have that little heart on your driver’s license.  The next step is a conversation with family members about the “what if’s” and the “this is what I want when . . . “If you start small, it may not seem like such a daunting task.  Besides, there is lots of support available to you if you are inclined to have the conversation.

We are all familiar with the expression “carpe diem” the Latin term for seize the day.  Its origin (according to Wikipedia) traces back to Book 1, number 11 of the Odes, written (in Latin) by the poet Horace.  The expression has come to mean “embrace life” because how much time we have left is uncertain.  I think the broad usage of this expression, which appears on bumper sticker and T-shirts, is an important message but that it has perhaps become watered down to suit the purposes of advertising. . . .

So I will introduce a “new” ancient term for purposes of my blog post today about paying attention to opportunities: kairos.  Kairos is a definition of time.  We are all familiar with the English words based on its Greek counterpart chronos, but very few are aware of kairos, this other term for time.  I have to say at this point that I am grateful for having studied a few foreign languages in my life, as I have been able to develop a sense for how the world is viewed differently by the speakers of a particular language.  We so often mistake our world for what we call it and how we name it.  We often forget all the myriad ways of apprehending and encountering all the familiar as well as the unfamiliar.

As Wikipedia points out:

The ancient Greeks had two words for time, chronos and kairos. While the former refers to chronological or sequential time, the latter signifies a time lapse, a moment of indeterminate time in which everything happens. What is happening when referring to kairos depends on who is using the word. While chronos is quantitative, kairos has a qualitative, permanent nature. Kairos also means weather in both ancient and modern Greek. The plural, καιροί (kairoi (Ancient Gk. and Mod. Gk.)) means the times.

This idea of time is a new concept for most of us – that there is a notion of time that is non-linear, and of a quality as opposed to quantity.  Most of us live by chronos, chronological time, but there are other aspects and qualities of time.  English does not carry the distinctions that are implicit in other languages.  In this respect of counting, of numbered days, chronos (NOT to be confused with Kronos or Cronus for you mythology lovers) may be a harbinger of death, as it is finite for each of us in this life.

But what about kairos, what kind of time, the quality of our existence, not its measure?  For many of us, this simply doesn’t count because it doesn’t “add up” and we can’t readily exchange it as the reducible currency of so much of our modern existence.  How many instances of “right now” are there in an hour? What is the present as something measurable if we are always counting the past and measuring the future?  Kairos represents the quality of time as immeasurable, an eternal right now that is the only time that we really have.  The chronological time is what we count, not what we experienced or will experience.

I have written about kairos in a previous blog post and will undoubtedly write more about it in the future.  In the meantime, take this opportunity to live in kairos and have the difficult conversation on this day!

©Barbara Cashman 2013     www.DenverElderLaw.org

The Pitfalls of the E-Z, D-I-Y Online Will Form – From A Recent Florida Supreme Court Case

Bench along the Maigue

Bench along the Maigue

In a recent issue of the ABA Journal, under “Trusts & Estates,” Debra Cassens Weiss penned [wait – can I use that verb for an e-zine article?] “Estate Dispute Caused by ‘E-Z Legal Form’ is a ‘Cautionary Tale,’ says Justice.”  The Justice referred to would be a member of the Florida Supreme Court in the opinion rendered in Basile v. Aldrich on March 27, 2014.  The really basic problem with the “will” executed by the decedent is that it was missing a very elementary part – a residuary clause.

I often tell clients in an initial interview that since we don’t know a couple little details like . . .  when we’re going to die and what we are going to own at the time of our death, a residuary clause can be very helpful indeed.

The basic problem with the E-Z legal form will was that it wasn’t much of a will, in fact it was what might be called half-baked.  It contained a listing of specific devises (gifts) to particular people, but didn’t contain a residuary clause to cover anything and everything else not listed specifically.  So Ms. Aldrich’s will was effective for the specific devises listed and ineffective for the remainder of her estate.  As a result, there was a determination of partial intestacy due to what is known as after-acquired property because there was no residuary clause to give any unnamed property to a named person.  So what Ms. Aldrich got was some of her property going via her will and the remainder of her property passing via Florida’s law of intestacy.

What governs much of the law in this field is testator intent – what did the person making the will intend?  Unfortunately, these forms can unduly complicate this determination and can lead to a myriad of unintended consequences.  How can we tell what someone intended when there is such a mess?

While most all of us appreciate simplicity, what looks good on paper to someone who isn’t familiar with the basic components of a valid will can lead to disastrous results.  I got a call once from a prospect who told me “I want a one-page will.”  I responded “you can write it yourself.”  Colorado law recognizes that frontier relic known as the holographic will, which is

a testamentary instrument that is written entirely by the testator in his own handwriting and signed by him and that even if unattested is usually recognized as a valid will in most jurisdictions.

For research for this post, I did look at a couple online purveyors of cheap will forms.  They had nice pictures and some good tips, but really didn’t explain much about what a will is and how it works. But wait, maybe they’re relying on the conventional wisdom that “everyone knows what a will is.”  Not so fast!  The basic problem is that when it comes to writing a will, most of us may not want to use those same simple provisions that are “generally applicable” to everyone and therefore of particular value to no one.  A testimonial given for one of these document generation services described how easy the process was.  Caveat emptor: There is easy and then there is simple.  Will easy work for you as you think it will?  How will you know?  The basic problem with the document generation services is that the human element (communication) is left out.  There is no interviewer asking you questions you might never have thought of or explaining how some common things actually work. But wait, there’s more.  . . . !  I also noted a satisfaction guarantee, lifetime customer support, and a $50,000 guarantee. I read the fine print of the guarantee, typos and all, and noted that the company retains the right to change the guarantee at any time.  Hmmm….

In my 2013 April Fool’s post, I included some fairly hokey pictures of “zombies” along with a serious set of questions about these types of services, which I likened to “zombie law practice.”  I recently received a call from a prospect who asked me point blank – why should I hire you instead of going online for one of these services? So I will include just a couple points from that zombie post of mine:

  • it may not be state (Colorado) specific, but based on another state’s law (how do you know?)
  • it may be designed to apply to a one-size-fits-all category and you’re not sure what your size is. . . .
  • you might zero in on a known problem and not consider its relationship to other issues
  • you might end up “fixing” one problem only to create a difficulty in another area
  • how will you know if you’re asking the right question or getting a sound answer?
  • can you accurately consider the cost of the “downside” for doing nothing, or addressing the situation by handling it yourself?

We lawyers understand that we often bore our clients with describing the important processes we go through to arrive at a particular result.  I know I am one of them.  But we also need to explain the process so that the client can see and appreciate the value inherent in it, how that process is going to get them to where they want to be (or out of where they don’t want to be).  This is why just filling out some cheap form is often like shooting yourself in the foot (or worse).

One last thing that I don’t mention, but that several of my colleagues would respond with is – pay us now or pay us later . . .  to clean up the mess resulting from the badly drafted “planning documents.”  Sadly, some of these messes can’t effectively be cleaned up – the harm to relationships can be irreparable.

Each of us is free to have a will or no will at all, but if you decide to write your own or go online for a “cheap and easy” will, wouldn’t you rather know that you are making an informed choice among viable alternatives?  Under the Colorado Rules of Professional Conduct, attorneys must provide clients informed consent to a particular course of representation.  This means an attorney must educate the client about alternatives so that the client can make an informed decision about how the client wants to proceed.  You won’t get any of this with a “cheap and easy” will drafting service!

 ©Barbara Cashman  2014   www.DenverElderLaw.org

You’re only old once or. . . mindful aging as spiritual practice?!

Swan at Lough Gur

Swan at Lough Gur

In case you’re wondering, yes, I have a copy of the Dr. Seuss book “You’re Only Old Once!” in my office waiting room. What, you say your kids have never read that one to you?  In case you’re wondering, yes Dr. S was OLD when he wrote it, and it was released in 1986 on Mr. Geisel’s 82nd birthday.  It is a fanciful “day in the life” of an elder American.  I wouldn’t say it has the same level of incisive social commentary as my Dr. S. faves including The Sneetches (about the stupidity of racial discrimination), The Zax (about the wisdom of integrative negotiation) or The Butter Battle Book (about the craziness of MAD – mutually assured destruction, that Cold War relic we somehow managed to survive). But that might just be because I haven’t read this book to my kids at least fifty times.  (Maybe they can read it to me in a couple more years, if I haven’t misplaced it by then.) My other Seuss favorites are numerous  – oh, I don’t have the space for a discussion of Yertle the Turtle or Horton Hears a Who. Maybe in another blog post though.

If you’d rather listen to someone else reading the book (with the pictures of course) check out this youtube video of it. Okay, back to the aging and April Fool’s theme . . .  I am always [as a baby-boomer] struggling with coining a term for the special form of forgetfulness, cognitive compromise, dementia, whatever[!]  that affects those of us who are elder law attorneys of a certain age.  I think I remember writing a blog post once about dementia being contagious.. . .  So here goes.  A colleague and I were recently discussing our experiences with mental health challenges.  I thought this topic would make a great blog post topic, particularly for April Fool’s.  Here are a few suggested additions I propose for the DSM-VII:

Attention Surplus Disorder (ASD) –  sometimes mistaken for OCD and often referred to as “nervous Nellie” syndrome, this occurs when a person’s quality of life is threatened when their sleep is interrupted by the looming prospect of overdue library books, and their vision is impaired by hyperfocus on the physical meaning of the dark circles under the eyes or formation of crow’s feet on the face of their partner.

De-mentation – this condition is practically reaching epic proportions as nearly all Americans have “smart phones” which means that as our phones become progressively smarter with the latest technology, we, the operators of our smart phones, get dumber all the time.  For example, when was the last time you actually remembered someone’s mobile phone number (without having to look it up on your smart phone)????

Displasia – pronounced “dis-place-yeah.”  This behavior is characteristic of the opposing spectrum of the obsessive-compulsive disorder, basically it is evidenced by a person spending exponentially more than the average forty-five minutes per day looking for a particular paper on their desk or some place in their office.

Paranoid Cybercosis —  is a 20th century and present day phenomenon, the disorder based on a vaguely formed conspiracy theory that yes, just like in all the great sci-fi movies of the last millennium,  the machines are out to get us.

Reduplicative paramnesia – the belief, delusional at least 50% of the time, that a location or place has been duplicated and exists in another place at the same time.  For older adults, this can sometimes involve time travel that is otherwise known as “déjà vieux” and sometimes confused with “déjà vu.”

Stendhal syndrome (I remember him from my French class in college) is a psychosomatic illness  that can strike when a person is exposed to a large amount of beautiful things or breathtaking scenery in a short time.  If we have spent our entire lives merely surviving and tolerating our existence, beauty can be quite upsetting!

Trichotillomania – this is exceedingly rare in those of us of a certain age, because as my grandmother once explained to me, when you get old, there isn’t as great a need to shave anymore.  This one is the urge to pull one’s hair out, basically from any area of the body that still manages to grow hair.

So, you’re maybe wondering . . .  what’s this link between humor and spirituality?  I haven’t read this book, and I didn’t know the Jesuits had a lock on this, but in 1989 James Martin, SJ, published Between Heaven and Mirth: Why Joy, Humor and Laughter Are at the Heart of the Spiritual Life.  On a similar note, here’s a link to a PBS Frontline interview with Rev. Jennifer Brower, a Unitarian minister. Her premise is that the aging process affects spiritual life as a result of the developmental process of aging.  I discovered there is even a Journal of Religion, Spirituality and Aging! Who knew?

So let’s hear it for April Fool’s Day and the glorious and pervasive myth of the fool, Loki, trickster, clown, and all those other wise fool names, mythological and archetypal.  Here’s to Coyote’s medicine, may it lighten our hearts, increase our wisdom and bring us clarity of sight.

©Barbara Cashman  2014   www.DenverElderLaw.org