Grief, Gratitude and Meaning in Dying

arapahoe county probate

Denver Botanic Gardens in July

 

Okay, maybe you were looking for an upbeat happy-faced Thanksgiving post from me? Well, I have advised clients and written in blog posts that it is a great time to have “the conversation” about end of life wishes when family members gather for holidays like. . . Thanksgiving! So here is the themed post for this year’s holiday: grief is part of life and so, part of death – whether it is grief around a life change like a loss of a relationship or status or the loss of a loved one’s or the prospect of losing one’s own life.

Why is this so difficult to talk about? No, I don’t mean this as a rhetorical question, rather as a question to ask each other and ourselves – to discuss individually and collectively in our communities.  The time is right for this.  Medical technology has extended our longevity such that some are now seriously questioning the purpose of such longevity.  I’m thinking of my first Dementia and Memory post of Oct. 1, 2014, where I cite the article “Why I Hope to Die at 75” by Dr. Ezekiel Emanuel.  The obvious answer to the question is that death is a great beyond, an unknown for the vast majority of us.  Reminds me of an observation by my favorite ancient Greek philosopher, Heraclitus:

Whoever cannot seek

The unforeseen sees nothing,

For the known way

Is an impasse.

Fragments, #7 at 7, Brooks Haxton, trans. (2001: Penguin).

Is it because the fear of death is nearly universal?  Ernest Becker, the late anthropologist and author of the 1973 groundbreaking book The Denial of Death, seemed to think so!  This fear is based on the “problem” of the body, how to manage our physical existence and its limitations.  There responses to this come in a myriad of forms: religious, spiritual, moral (philosophy), and ethical – just to name a few.

I would submit that we (as in post-modern American culture) are at an impasse in the debate about death, its meaning and the prospect of suffering as part of the dying process.  Evidence of this is clear from the recent death, via means of doctor assistance, of twenty-nine year old Brittany Maynard.  I find it interesting that the subjects of these types of debate are all young women: Karen Ann Quinlan was 22 when she ingested alcohol with the tranquilizer; Nancy Cruzan was 24 when she was in the auto crash that left her in a “vegetative state;” while Terri Schiavo was 26 when she suffered the heart attack which deprived her brain of oxygen for several minutes.  These are some of the women whose fates have informed the course of development of the law concerning advance medical directives.  What impact will Brittany Maynard’s death have on the state of upheaval surrounding the quality of medical care?  Is this question one that applies across the board to us regardless of our age as adults?

In his article in response to Ms. Maynard and the rising calls for doctor-assisted end of life measures, “Doctor-Assisted Suicide Is Unethical and Dangerous,” Dr. Ira Byock observes

American health care is undergoing tumultuous changes and showing signs of strain. A recent Institute of Medicine report attests to persistent deficiencies in care and social support that seriously ill people and their families experience. Witnessing the suffering of our relatives, friends and, for clinicians, our patients, gives rise to moral distress.  It is not surprising that support for physician-assisted suicide is also rising. The age-old dictum that doctors must not kill patients can appear antiquated, out of touch with hard realities, and even heartless.

One way to look at the euthanasia is as some kind of triumph over the tyranny of death, in that means can be selected to hasten its progress so as to minimize suffering.  But this really begs the question – it is the challenge of meaning, in how we live our lives as well as how we choose to die.

We even speak about death in physical terms – as a wall, a door or a window. Is our imaginative vocabulary so limited?  Why is it we have such a difficult time in grappling with the question of meaning in our life – is it because we do not wish to contemplate it in light of its physical end, our mortality? Or is the question backwards?  I find an observation by Miguel de Unamuno in The Tragic Sense of Life helpful here:

In the most secret recess of the spirit of the man who believes that death will put an end to his personal consciousness and even to his memory forever, in that inner recess, even without his knowing it perhaps, a shadow hovers, a vague shadow lurks, a shadow of the shadow of uncertainty, and, while he tells himself: “There’s nothing for it but to live this passing life, for there is no other!” at the same time he hears, in this most secret recess, his own doubt murmur: “Who knows? . . . . ”  He is not sure he hears aright, but he hears.

It seems that a major strand of euthanasia seems to presuppose that there is no meaning in the dying process, that it is simply needless suffering.  This is the question that is not addressed by euthanasia, this is the fear that is laid bare and yet still rejected.

And what if true mastery is not based upon the art of living fully, deliberately and mindfully – but rather on the art of dying well?  Indeed, I would say that is an excellent topic for another blog post.  So if you think gratitude is an important expression of being in the world, whether through your heart or your mind or both – I wish you a Happy Thanksgiving!

©Barbara Cashman 2014   www.DenverElderLaw.org

The Medical Power of Attorney and Medical Advocacy: Two Roles are Better than One

Centennial Estate Planning

Along the Banks of the South Platte

How can we help elders navigate the daunting medical system and help them make the best choices for their needs and values?  Last week I attended a lunchtime continuing legal education program sponsored by the Arapahoe County Bar Association and presented by Janine Guillen, an attorney and registered nurse.

Janine told of her personal experience with her mother’s health care issues toward the end of her life and how she advocated for her mother while her sister served as their mother’s health care agent.  Many of us come to be familiar with these matters based on our personal experience with elder parents and their health challenges.  Towards the end of their lives, I was health care agent for both of my now deceased parents.  I remain skeptical about a health care system (Medicare) that pays its provider for services per intervention, and the greater the number of interventions for elders, the higher the mortality.  This post will give a brief overview of the two roles along with some helpful organizational strategies that were proposed.

Yes, these jobs of health care agent and health care advocate can be split.  They are often assumed by a single person, but if it is often helpful and sometimes necessary to split up the roles for assisting an elder.  A result of this is that it can often facilitate good communication among siblings and allow adult children to share some of the challenges and burdens of helping an elder parent.

What your health care agent (agent under a medical durable power of attorney (MPOA) can do for you.

Your health care agent is the person named in a medical power of attorney to make medical decisions for you in the event you are not able.  The types of decision an agent can make can be broad or narrow, general or specific and the agent’s authority is typically set for the power of attorney document.  I am in favor of powers that confer broad authority on an agent.  This is for two reasons, it requires the principal have a conversation with the agent about what the principal wants (a conversation about these matters is necessary) and there is little likelihood for confusion about what an agent can do.  Also, I tend to think that a short document is best, given the amount of time that health care providers spend with their patients, it is not a great idea to draft a long and complicated document which might complicate matters.

I like simplicity and brevity in the medical power of attorney document.  Here’s a current pet peeve of mine relating to this document.  I am puzzled when I see certain language in a medical power of attorney form that specifically addresses the events in which the agent assumes authority to make decisions on behalf of the principal.  I don’t see this language often, but it usually addresses the effective date of the MPOA, offering two alternatives – effective immediately, or as a “springing power” that allows the agent to act only in the event that “my physician or other qualified medical professional has determined that I am unable to make or express my own decisions, and for long as I am unable to make or express my own decisions.”  This is set up as an alternative in a poorly worded form, but there is in reality only one situation in which a health care provider would consult an agent to make decisions regarding a principal.  The doctrine of informed consent requires a health care provider to get informed consent from the principal, and it is only in the event of the provider’s determination that the principal is unable to give informed consent that an agent would be consulted.  All MPOAs are by their very nature “springing” – meaning that an agent is only empowered to act in the event of principal’s incapacity as it relates to the provision of informed consent for health care services.

I cannot say why this confusing language appears in a couple forms I have seen, but it looks to be a relic from the bygone days of the general (financial) durable powers of attorney.  Since the adoption In Colorado of the Uniform Power of Attorney Act, which became effective in January 2010, all powers of attorney (nonmedical) executed after that date are (1) durable unless they state otherwise; and (2) are “standing” powers, meaning that the effective date is that date of signature by the principal and that the agent’s authority to act is not contingent on some event or determination (a/k/a a springing power) unless specified to the contrary.

What your health care or medical advocate can do for you.

A health care advocate is not only another set of eyes, ears and brain focused on medical decisions, the advocate can provide reassurance and companionship to help ensure an elder gets appropriate care, gets answers to questions and otherwise ensure understanding concerning health care services that are recommended.  If you are thinking about getting a health care advocate, make sure it is someone whose judgment you trust and is someone who is not afraid to ask questions or stand up to authority in unfamiliar or stressful situations.

Here’s a bullet list of some of the tips that Janine provided:

  • Go to The Joint Commission website to perform a quality check on a health care organization (hospital or provider);
  • Use language and specific observations that your doctor can use to help diagnose a problem (use fact-specific observations and stay away from online self-diagnosis);
  • Make sure you have executed HIPAA releases for your agent, health care advocate and any others you want to have access to your medical information;
  • Keep an up-to-date list of all health care providers, their specialties and contact information;
  • Maintain a current health history and medications list so that it doesn’t have to be remembered and written down for each provider; and
  • Write down questions you have so that you don’t forget to ask them when you see the doctor.

Here is a link to a Forbes article about how to become a patient advocate.  Many of these advocates gain their skills and come to appreciate the need for such services as a result of coming to serve in that capacity for an elder parent or other relative.  I think it would not be controversial to make the observation that it is not simple for an elder to manage and effectively navigate through our medical industrial complex on their own.

©Barbara Cashman  2014   www.DenverElderLaw.org

The Contractual Capacity Conundrum, or Part 3

October Dahlia

 

So we’re back on this capacity discussion again.  In the first installment I looked at testamentary capacity, which I characterized as the “basement” as far as capacity levels go.  For better or worse, the contextual notions of how much capacity is enough tend to get more complicated as we move up from that basement of testamentary capacity and look at other types of capacity which require just a bit more um. . . . capacity.  In last week’s post I looked at capacity in the health care context – medical POAs, advance directives and so forth – which are governed by statute.  This week I return to the shifting ground of common law notions of capacity – as reflected in our case law, and focus on items 3 (DPOA capacity) and related actions around the notion of what is the capacity to enter into a contract.

Contract: An agreement between two or more persons which creates an obligation to do or not to do a particular thing. Black’s Law Dictionary, Fifth Ed., 1979.

Capacity: Legal qualification (i.e., legal age), competency, power or fitness.  Ability to understand the nature and effects of one’s acts.  Black’s Law Dictionary, Fifth Ed., 1979.

Conundrum: 1. A riddle, the answer to which involves a pun or play on words. 2. Anything that puzzles.  Webster’s Encyclopedic Unabridged Dictionary (1989).

Ageism sometimes factors into how our notions of capacity are formulated.  When is someone really old and what are the implications of reaching a certain old age?  I have heard ninety-something-year-olds bristle at a proposal from their “kids” that they move from an independent living apartment to assisted living – based on the thinking that assisted living is for “old people.”  Obviously . . . . looking in a mirror doesn’t help many of us come to terms with elderhood and all it may or may not entail!  Okay, one last detour before getting back on track: Scientific American recently posted on the topic “Cocoa Constituents Fend Off Senior Moments” which you can read here.  Yes, the title got this chocoholic’s attention, but I’m afraid it’s about the cocoa flavonols, but that doesn’t mean that I won’t be consuming plenty of chocolate just to be on the safe side! The research in the post concerned a level of flavonols that would be contained in a daily dose of about twenty-five chocolate bars a day . .

You might think the right to enter into a contract is important, but also that it is part of something bigger.  The eminent political commentator Walter Lippman (who coined the term “Cold War”) observed that the first principle of a civilized state is that power is legitimate only when it is under contract.  I came across this very interesting article that the freedom to contract is a human right.  Why is this relevant to the discussion in this blogpost?  We need to be vigilant about creeping ageism and paternalism toward elders while at the same time recognizing a need for protecting vulnerable elders.  What the article in the link discusses is that we must remain watchful regarding any status-based limitations on the freedom to contract (status being things like age or a certain personal condition) rather than capacity based (capacity to do a certain task) or relating to the subject matter of the contract.  In case you might be thinking that we haven’t had such restrictions in our American legal system – think again!  Just one example that comes to mind and it is not a familiar one to most people.  I was a history major in college and wrote a paper about coverture, which basically obliterated the legal rights of women in colonial America once they married.  This is an example of a status classification.

Part of Colorado’s relatively new law on elder abuse (and mandatory reporting of it) focuses on persons at risk due to age and disability – the law defines an at-risk adult as “any person who is seventy years of age or older or any person who is eighteen years of age or older and is a person with a disability.”  Colo. Rev. Stat. §18-6.5.102(2).

So then, is old age a status?  Yes, of course it is!  In the context of defining contractual rights and in other parts of our legal system (both civil and criminal) status- in the old age context, can often be mingled with disability law.  This is a useful development for many elders with diminishing physical and cognitive capacities, but what are its broader and more problematic implications?

Getting back squarely to the topic of this post – what is contractual capacity?  If we can readily distinguish it from status, that’s a good start, but what does it mean in the estate planning and elder law context?  Last week I presented a CLE to Jim Duve’s solo networking group in Colorado Springs and one if the questions I raised to my audience was “how do attorneys deal with different capacity standards when they are preparing documents for clients and otherwise determine that a client has enough capacity to perform a certain task?”  Unfortunately, I raised many more questions than were answered. . .

Let’s take a look at this statement from the Colorado Court of Appeals in In re Estate of Romero, 126 P.3d 228 at 233 (Colo.App. 2005):

the [Colorado] supreme court has held “that contractual capacity and testamentary capacity are the same.” (Citing Breeden v. Stone, supra, 992 P.2d 1167 at 1170 (citing Hanks v. McNeil Coal Corp., 114 Colo. 578, 168 P.2d 256 (1946)).

This observation was important to the court’s decision in the Romero matter, but it is of little practical assistance toward the development of a cohesive doctrine of what capacity is enough capacity in the contractual context or other contexts relevant to estate planning and elder law representation.

To review, the fundamental question of “how much capacity is enough” in the contractual context must be answered with a response beginning with “it depends . . . !”  So if you’re looking for a treatise on this topic, check out Civil Mental Disability Law, Evidence and Testimony, by John Parry.  Okay, I think that’s enough heavy lifting for this blog post. . . . so I’ll return to the first definition of conundrum and note that forklift operators (like many attorneys) really don’t like puns because they find them unpalletable.  Until the next installment.

©Barbara Cashman  2014   www.DenverElderLaw.org

Capacity and Incapacity in the Health Care Context

Denver Botanic Gardens

Denver Botanic Gardens

In this second installment about capacity and incapacity, I’m looking at capacity in the health care context.  To recap, the fundamental question of “how much capacity is enough” must be answered with a response beginning with “it depends . . . !”  Some of the varying standards of capacity in elder and estate law can be demonstrated among these categories of capacity:

  1. To make a will (testamentary capacity) – including a will with a testamentary trust
  2. To designate a health care agent in a medical power of attorney (MDPOA)
  3. To execute a general (durable) power of attorney
  4. To execute an advance directive (living will)
  5. To execute a revocable (or irrevocable) inter vivos (living) trust
  6. To make a gift to another person
  7. To make a gift of real estate to another person (via a deed)

So you may be wondering how estate planning attorneys manage these different types of capacity determinations regarding their clients when they are engaged to prepare estate planning documents. . . .  Attorneys are well-advised to be cognizant and careful of the different standards so they can effectively represent their clients.  So, you will note that #2 and #4 above relate to the health care context, but there are also other relevant documents that may include the MOST (Medical Orders for Scope of Treatment) form and related medical orders such as a DNR (Do Not Resuscitate). Unlike the standards for capacity in the will, power of attorney, contract and trust-making contexts, capacity in health care is driven by statutory law – not case law or the common law tradition.  You can read a bit more about the history of informed consent in one of my earlier posts.

The Colorado Medical Treatment Decision Act is found at Colo.Rev.Stat. 15-18-101 et seq.  The statute allows any adult with “decisional capacity” to execute a declaration.  “Decisional capacity” is defined in the statute at 15-18-103(6) as follows: the ability to provide informed consent to or refusal medical treatment or the ability to make an informed care benefit decision.  Note that the statute speaks about medical treatment decisions and also health care benefit decisions. Yes, our Colorado statutes cover all the bases here.  Colo.Rev.Stat. § 15-18.5-102 and 103 relate to the health care power of attorney for medical treatment, §15-18.5-104 and 105 (the statutory form for naming the surrogate) allows for appointment of a surrogate decision maker for health care benefits.  Why are these documents so important to have in place?  So that you can name a person in charge and know they will be able to perform an important job for you if you need their assistance.  If you don’t name anyone, there is a vacuum, often a decision by “committee” of family members and perhaps the need for instituting guardianship proceedings in probate court.

The documents evidencing the decision-making authority of various named agents and surrogates in advance directives and MDPOAs are valid in every state of the U.S, and while each state has different laws concerning these important health care documents, they are generally viewed as “portable.”  It is a good idea to keep these documents up to date and current with the laws of the state in which a person resides.  I think it is important to update an advance directive every few years, especially as a person ages, because health care wishes are subject to change, based on one’s outlook and experience over time.  If you aren’t sure where to start in this regard, go to The Conversation Project to begin.  Every person over eighteen really ought to have a medical power of attorney!  This is a simple but powerful document and it is best to have a conversation with your selected agent to make sure (1) they are willing to serve and (2) they know what you want.  I haven’t yet met anyone who wants to be named as a health care agent – charged with life and death decision making authority with regard to the principal (the person naming the agent) – who wants to perform that job without knowing what the principal wants!

One last point for this overview, you might be wondering about those electronic medical records for a person who is incapacitated or has died and an agent or guardian or personal representative is charged with the authority over electronic records?  Colorado law doesn’t specifically address “digital assets” yet, but the Uniform Law Commission’s UFADAA (Uniform Fiduciary Access to Digital Assets Act) is final as of July 2014 and ready for state adoption.  There are grounds to have some privacy concerns in the medical and mental health context of digital assets.  The best method to clarify your wishes about maintaining privacy or limiting access to these records is to execute the necessary documents to name your agent and state your specific wishes – particularly with regard to third party electronic medical records access (agent, guardian, personal representative, etc.).  The best policy to specifically address these concerns in the relevant and applicable documents, and if you don’t yet have these documents, remember that the upcoming holiday season is an excellent time to have the conversation about end of life wishes.

©Barbara Cashman  2014   www.DenverElderLaw.org