Funeral planning, disposition of remains and the importance of “The Conversation”

centennial probate lawyer

Italian Marble

Last Sunday I presented to a lively and engaged group at a local church on the topic of health care self-determination.  This post is a bit of a follow-up to that conversation on the enduring topic that “it is never too soon to have ‘The Conversation.’”  The best approach to getting these matters in order is to have a conversation with loved ones about wishes, which are then solidified by the documentation.  The documents are often meaningless if people don’t know of their existence or the context for the expressed wishes!

These topics seem relatively straightforward, right?  Well, I got the idea for writing this post initially as a result of a discussion that took place on one of my listserves.  It is one of those situations where “the law” and how things work out there in the outside world don’t quite sync.  The question concerned a situation in which decedent stated her wishes to her child that she wanted to be cremated, but the mortuary told adult child that, without anything in writing from the decedent stating her wish to be cremated, they would need to contact and get approval from decedent’s other children to get their joint approval for cremation.  It would seem that the funeral director wanted to follow the old law “next of kin” even though there was a statute in place that covered this issue. . . .  There was a good discussion about this topic and so I thought it was worth writing about.

Defining Death

       You might think this is a straightforward proposition, but it is not, as I have blogged about previously in a post about “brain death.”  The only legal and medical definition of death in our country came about as a result of a uniform law – the Uniform Declaration of Death Act (UDDA).  It was drafted in 1981 by a President’s Commission to study brain death and was approved by both the American Medical Association (AMA) and the American Bar Association (ABA) shortly after its publication.   The UDDA offers two definitions for a legal declaration of death: (1) the irreversible cessation of circulatory and respiratory functions; or (2) the irreversible cessation of all functions of the entire brain, including the brain stem.   The most common type of death is the first one and you can see how the second definition courts controversy, especially given advances in neuroscience and further advances in measuring the occurrence and quality of brain activity.  States have adopted the UDDA, many with their own adaptations of the second definition.  In Colorado, C.R.S. § 12-36-136 provides:

(1) An individual is dead if:

(a) He has sustained irreversible cessation of circulatory and respiratory functions; or

(b) He has sustained irreversible cessation of all functions of the entire brain,

including the brain stem.

(2) A determination of death under this section shall be in accordance with accepted

medical standards.

Death in Colorado encompasses the entire brain, not simply some aspect of brain function.  But the treatment of brain death is inconsistent and some argue that the neocortical death (part of the brain believed to contribute to consciousness) is more appropriate than “whole brain” death and  may better address neurodegenerative disorders that can lead to steep functional decline, particularly in the elderly.  This is an evolving determination, as addressed in (2) above “accepted medical standards.”

So once someone is dead, there is the question of what happens with the body, this is where the Disposition of Last Remains can be helpful information.  The declaration of last remains, addressed in our statutes at Colo. Rev. Stat. §15-19-103 et seq., covers several aspects of the disposition of a corpse.  The context for the statute does in some important aspects address the three major historical funerary customs in our country: (1) the rituals performed for a dead person, which can include a visitation or wake; (2) a funeral or memorial service; and (3) the burial service or inurnment.  No, cryogenic preservation is not covered in the tradition surrounding death and disposition of a body, nor is biological continuity – but assistive reproductive technology legislation covers several aspects of what we might leave behind and in Colorado at least, has room for growth.

The statute contains a form for the declaration of disposition of last remains at C.R.S. 15-19-107, and it includes some very important choices, including:  burial, cremation, entombment or “other;” a disposition as determined by a named designee; and requests concerning a funeral, memorial service and other special instructions.

A disposition of last remains often contains a variety of information and this often includes “Anatomical Gifts.”  These gifts are the primary reasons that we have any law at all that defines death – so as to enable organ donation.  This is why “brain death” is called such and why it still remains controversial in many respects.  In the advance directive form I use, there is a clause concerning anatomical gifts.  Many Colorado residents have selected the option of signing up as an organ donor with the Department of Motor Vehicles (a division of the Department of Revenue), and these folks are identified with a small red heart with an embedded “Y” on the lower right corner of the front of the license or identification card.

So what about the interface of the Disposition of Last Remains with the Medical Durable Power of Attorney (MDPOA)?

The MDPOA statute is found at Colo. Rev. Stat. § 15-14-506, and subsection 3 states:

An agent appointed in a medical durable power of attorney may provide informed consent to or refusal of medical treatment on behalf of a principal who lacks decisional capacity and shall have the same power to make medical treatment decisions the principal would have if the principal did not lack such decisional capacity.

An MDPOA may also contain a statement of wishes or give the authority to the agent, after the principal’s death, to make a determination of disposition of last remains of the principal.  This is so because an MDPOA is a “declaration” as defined by C.R.S. §15-19-103.  This is a long post, thanks for reading and until next week . . .

©Barbara Cashman  2015   www.DenverElderLaw.org

Jefferson County Senior Law Day – Saturday June 13, 2015

Italian Arch

Italian Arch

This is the season for the annual Senior Law Days, co-sponsored by the Colorado Bar Association.  There are a number of events taking place throughout the state, but this post is about the Jefferson County Senior Law Day this Saturday, June 13, 2015.  Yours truly will be presenting once again on the topic of Financial Powers of Attorney and Conservatorships.  My presentation is one of fourteen different topics on which presentations will be made in three different sessions beginning at 9:30 a.m. and finishing at 12:40 p.m.

This year’s Senior Law Day event is hosted by the Colorado Christian University located in Lakewood.  Senior Law Day is a great way for elders, adult children, caregivers and others to get good information about common concerns with aging and preventing financial abuse as well as making important plans about end-of-life health care decisions.  There are also a number of vendors who attend these events and several not-for-profits that assist elders.  It’s an excellent way for the curious to get some basic information from reliable sources and learn about community resources for elders and their caregivers.

Some of the other topics for presentation include: “A Consumer’s Guide to Choosing Nursing Homes and Assisted Living Facilities;” “Scams and Elder Abuse;” “Probate: Perspective From the Bench;” “Estate Planning Basics: Wills and Trusts;” and “Medicare Update.”  Don’t forget that there are also “Ask an Elder Law Attorney” sessions available for questions folks have for  the elder law attorneys who volunteer for these sessions.

If you are interested in attending a senior law day, but can’t attend this one, the annual Denver Senior Law Day will be held at the Denver Mart on October 17, 2015.  If you’re interested in more information about these kinds of topics, you can check out the pdf version of the 2014 Senior Law Handbook published by the CBA here.  Finally, don’t forget that there is an established “ask an elder law attorney” program at the Jefferson County Justice Center, in Golden, Colorado.  That’s where I will be Friday morning! Get more information about this service here.

©Barbara Cashman  2015   www.DenverElderLaw.org

 

More Adventures of the Psychopomp

Wheel from Assisi Church

Wheel from Assisi Church

In a previous post this past January, I wrote about a term, an “office” to be more exact, about which very few of us in this post-modern world know.  The psychopomp is the guide to the “other side” so to speak.  The guide, or lack thereof in our post-modern existence, speaks to an unmet need for some ritual, some meaning-making around the end of life.

So now a bit about Mercurius, a/k/a Hermes, the trickster who is also messenger and guide of souls.  For Carl Jung, Mercurius as guide to “the underworld” meant that he was more akin to the god of the unconscious.  Mercurius is also bringer of news, transformation and other processes including healing and Mercurius does not fight with the other gods of the Greek and Roman pantheon but strives to make sense and meaning of them – which seems to be why Jung’s term synchronicity for meaningful and symbolic coincidences seem to evidence the hand of Mercurius.

But the path is difficult, narrow and often disappears or involves a painful transformation.  Is there something that is the end result of this transformative process? Why yes, there are of course several answers to this, but the integration, the longed-for unity of the adept is that of integrity, that is revealed in its timeless form and no longer subject to change or destruction.  This is symbolized by the lily, a magical flower.  The white lily is emblematic of the primordial goddess from antiquity, has a number of references in the Hebrew Bible and is also depicted in Christian art in paintings of the annunciation as well as Saint Catherine of Siena, for example.

What the ancient alchemists referred to as “alchemical mercury” was a volatile liquid, mainly alcohol, which carried the life force of a fermented plant.  In the process of fermentation, the plant dies and disintegrates, and “gives up the ghost” of its life force to the volatile liquid.  And yes, if you’re wondering  . . .this is where the term “spirits” as in wine and spirits sold at a liquor store – has its origin!

There are references to the psychopomp in the animal world as well.  In art it is often depicted as a deer, whose caution and grace, along with its sudden and unpredictable appearance and disappearance link the animal to Mercurius. The deer, like the transformative intermediary and rather slippery character is often a symbol of the twisting and turning path of transformation or of pilgrimage and the “now you see it, now you don’t” nature of such a course.  Indeed Rainer Maria Rilke wrote about this in “The Book of a Monastic Life,” this from The Book of Hours, with beautiful translation and commentary by Anita Barrows and Joanna Macy and available from Riverhead Press:

You come and go. The doors swing closed ever more gently, almost without a shudder. Of all those who move through the quiet houses, you are the quietest. 

We become so accustomed to you, we no longer look up when your shadow falls over the book we are reading and makes it glow. For all things sing you: at times we just hear them more clearly.  

Often when I imagine you your wholeness cascades into many shapes. You run like a herd of luminous deer and I am dark, I am forest.  

You are a wheel at which I stand, whose dark spokes sometimes catch me up, revolve me nearer to the center. Then all the work I put my hand to widens from turn to turn. 

                Rilke, The Book of Hours, (A. Barrows and J. Macy, transl), l. 45 at 105 (1996).

 

So now that I’ve mentioned alchemy, Mercurius and  Rilke, how can I tie these thread together in the hope of making any sense out of this psychopomp foray?!  Well, that remains to be seen. . . but I will close with an observation and link about the importance of people being with one another as one is dying, for this being with the dying is transformative for the person doing the dying as well as the other person who is part of the relationship.  I recently came across an excellent video entitled “Beginning with the End” – a documentary featured in SXSW. Here’s the trailer.  It’s about teaching young persons about the dying process, as experienced by people whose lives and experiences are shared in relationship. Blue Sky has a longer explanation of the documentary here.

Here’s the overview: Emma and Ernie ate lemon meringue pie together. Ernie taught Emma about life. And Emma helped Ernie to die. In 2002, a high school teacher in Rochester, NY, invited nine high school seniors to attend his new class. The name of the class: Hospice. A decade later, the program continues with student volunteers learning about and providing comfort care for the dying and their families. The film follows the real-life stories of four student volunteers through their senior year. In the quest to understand “the big sleep,” they find a whole new kind of awakening.

What does the involvement of young people caring for the dying involve?  A new language of connection? Most certainly.  As one of the students remarked . . . it’s not about death, it’s about life.  Life’s connections among the living.  Touch, human touch.  Oh yes, and transformation of each of us.

That’s all for now.

©Barbara Cashman  2015   www.DenverElderLaw.org