Dreaming Into Retirement Planning

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Dreamtime Batik

I recently ran across an article by financial “coach” Chris Hogan  about the importance of having a dream to inspire us to plan for and to carry out our plan for retirement.

Hogan’s tactic is to motivate, not intimidate or strike fear. His book “Retire Inspired: It’s Not an Age, It’s a Financial Number” and if you’re interested in listening to one of his podcasts, here’s a link to that.

I liked this idea and of course it wasn’t new.  I thought of Richard Leider, the author who penned the book “Life Reimagined” in 2013 and has championed risk-taking for folks over 50 while cautioning us against being a “former” anything in retirement.  You can watch his Ted x talk about the importance of finding your purpose, particularly to motivate retired people to get out of bed in the morning.

Can we dream into our purpose when we are facing retirement?

Dreaming can, at any time or stage of our lives, help us find our place in the world and to help identify the challenges which face us.   Dreams can help us construct our own personal mythology, our story in terms of what we are here to do and how we are meant to be in this world.

I suppose it depends on how you define “dreaming “of course  – and whether we work on the dreams or they work on us.  I am rather fond of Dr. Jung’s quote from Dreams, Memories, Reflections, which he wrote when he was eighty-one:

Who looks outside dreams; who looks inside awakes.

It’s a rather slippery slope, isn’t it?  Particularly for us Americans who have always felt so strongly about being in charge of our lives.  We who know such boundaries and demarcations flowing from our sense of autonomy. Retirement forces us to think differently about what we do with the rest of our lives.  We often thing about this as a sad, backward gaze, held and nurtured for its lost glory.  But it can be a time for us to lighten our load of our thinking about our lives and about its doings.  Perhaps it can be liberation.

Leider talks about the three “M’s” of money, medicine (health) and meaning – the fundamental things that help us identify what we really need so we can be free to leave behind the other things that may simply distract us.

I think for many of us the fear of retirement, and why we are loath to plan for it, is that we don’t want to allow ourselves the space to dream because, well, it might not be what we think we “always wanted” or what was expected of us.  I think it also has a lot to do with our fear of aging in general as the run up to the inevitable end of our lives.

So what to do in the meantime?

Start dreaming, particularly your own dream, not someone else’s!  And if you don’t want to dream because it sounds too silly, then take Leider’s napkin test and see if you can pull that off!  Get together with a loved one or colleague and take “the napkin test” to discover what is really important to you, what gives you joy and allows you to feel connected to others.  Stop and reflect.  You can watch (on Daniel Pink’s website) a one minute and twenty second video featuring Leider explaining how to do this

I’ve condensed a bit of Hogan’s advice here from that Washington Post article above:

  • A secure retirement isn’t accidental;
  • Dream your dream and make a plan that will get you to that dream;
  • Execute the plan with a commitment to do what is necessary to bring it to fruition.

Lastly, here is another article by Hogan about  What do you need to do to retire with $1 million?

Happy dreaming!

© 2017 Barbara Cashman  www.DenverElderLaw.org

The Dreaded “O” Word and Aging Into Wisdom

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Old

 

I recently attended an educational lunch program put on by a financial advisor at a restaurant downtown.  It was geared to attorneys and their retirement planning needs. Most of us in attendance were “old enough” to be planning for retirement already and we had a number of questions answered.  A latecomer to the program arrived after we had finished our lunch.  He proceeded to ask our host a question about a “hypothetical 75 year old” but I suspected this colleague’s age to be well in excess of 80 years.  What really struck me however, was his use of the expression “O word” as if to acknowledge some common implied cultural unwillingness to use the term “old” as if it were a pejorative term.  I was both puzzled and troubled by this use of the term which I had never heard before, let alone from the mouth of an octogenarian!

So maybe there’s more than a few of us who simply refuse to accept this aging thing that we do, but I insist that there is a bright future for wisdom in elderhood. . . Here’s a link to a New York Times article  from 2014 about the science (from a psychological perspective) of “older and wiser” and  a short article from last month in Psychology Today entitled “Are Older People Wiser?”

Wisdom is one of the very few positive stereotypes of elderhood, but it’s of course not necessarily true.  A passive aging focused on the denial of age and eventual death does not lead to a ripeness of wisdom in one’s elder years. The jury is still out on this “older and wiser” issue, but while elders’ brains generally slow down, an elder’s experience and knowledge can make up for the shortcomings in processing speed and distractibility.  But getting to elderhood requires one to accept and even embrace our aging, learn from experience and to grow one’s knowledge along the way.  If we’re busily engaged with denying our aging, resenting that we’re “not who we used to be,” then that wisdom piece will remain elusive because we are failing to come to terms with a most basic premise of this life: the length of a life is uncertain and all we truly have is the present.

So, what is wisdom?  I liked these two definitions found at the Collins dictionary:

Wisdom is the ability to use your experience and knowledge in order to make sensible decisions or judgments; and in American

the quality of being wise; power of judging rightly and following the soundest course of action, based on knowledge, experience, understanding, etc.; good judgment; sagacity

There is also the wisdom tradition, which is synonymous with Perennialism, defined in Wikipedia as “the idea that there is a perennial or mystic inner core to all religious or spiritual traditions, without the trappings, doctrinal literalism, sectarianism, and power structures that are associated with institutionalized religion.”

So I turn to a favorite classic of literature here, Aldous Huxley’s The Perennial Philosophy, finding particularly relevant his quote of Francois Fenelon (at 257 of the Harper Perennial Modern Classics edition) to the subject of wisdom as an outgrowth of embracing the aging process as part of our experience of our selves:

Faults will turn to good, provided we use then to our own humiliation, without slackening in the effort to correct ourselves.  Discouragement serves no possible purpose; it is simply the despair of wounded self-love.  The real way of profiting by the humiliation of one’s own faults is to face them in their true hideousness, without ceasing to hope in God, while hoping nothing from self.

If we can avoid becoming overwhelmed with the discouragement of old age and its changes to us and in us, perhaps we can exercise that sagacity referred to above.  There a number of resources in the wisdom of aging category, including the late Reb Zalman Schachter-Shalomi’s book From Age-ing to Sage-ing which led to the founding of the Sage-ing International organization, which hosts workshops, webinars, conferences and other forums for fostering “spiritual eldering.”  Their website states that moving from age-ing to sage-ing involves the following:

  1. Developing a willingness to deal with life completion and overcoming the desire to stay in denial of aging.
  2. Coming to terms with our mortality.
  3. Acquiring the skills for working on the inside by practicing journaling, meditation, imaginal exercises, and spiritual intimacy by creating safe and sacred space in dyads.
  4. Paying attention to our body, feelings, mind, and spirit, being guided by them and maintaining them in the right tone, mood, and attitude.
  5. Giving  a real hearing to the inner voices – allowing all the minorities within the whole person their witness.
  6. Beginning to do life repair:
  • in health
  • in practical matters with wills and testaments
  • in relationships and between generations
  • by reaching into the past and offering release and healing
  • through forgiveness work with release from vindictiveness
  • by finding the pearls in the anxious memories
  • 7. Doing the philosophical homework by raising questions about the purpose and the meaning of our lives.
  • 8. Serving as elders to others as guides, mentors, and agent of healing and reconciliation on behalf of the planet, the nation, and the family by being wisdom keepers.
  • 9. Preparing for a serene death and afterlife, furnishing our solitude with God.
  • 10. Doing this nobly in connectedness with the inner, actualized self,  already realized, individuated, and complete.This is a formidable list, but fortunately there is assistance in the Sage-ing community for these efforts.  There are also other excellent resources which may involve a bit less introspection and life review.Jane Barton (of Cardinal Life LLC), an excellent local speaker with whom I am acquainted, has a program she has entitled “The Journey of Aging.”  Part of her programming covers the denial of death and the aging process and how that unwillingness to engage with our mortality adversely impacts our present abilities to consciously and deliberately plan for our future.

© 2017 Barbara Cashman  www.DenverElderLaw.org

Boulder Senior Law Day is Saturday, September 23, 2017

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Venetian Canal

 

The Boulder County Senior Law Day will take place this Saturday at the Plaza Event Center in Longmont, CO.  Here is their website if you are interested in registering for the event or would like more information.  There will be 20 different presentations on topics ranging from how to serve as a fiduciary or health care agent for another person; the basics of Medicaid and what you need to know; what’s “trending” in elder fraud (presented by Jane Walsh, Deputy DA from the 20th judicial district); special needs planning and many other interesting topics.  I have been asked to present on ethical wills and leaving a meaningful legacy.

I have written several blog posts on this topic, but I find something new to write about each time I return to this topic!  Most of us estate planning attorneys need to have a sharp eye for identifying potential minefields in a client’s choice of beneficiaries.  It goes without saying we must be vigilant to find ways of minimizing conflict and potential conflict among fiduciaries (agents under powers of attorney, trustee, and the like) as well as beneficiaries in assisting a client in putting together a comprehensive estate plan for managing disability or incapacity (using durable powers of attorney) and for post-mortem planning (by using a will and other available tools suited to the client’s situation).

The estate planning documents we draft for clients are legal documents and we lawyers tend to draft them in ways that are free from language regarding the testator’s (the legal term for a person who makes a will) thoughts or feelings about particular persons or things, but some important documents can help fill in the gaps or empty spaces.  One of these is an ethical will.

Another related document is what is known as a “side letter” which is focused more closely on fleshing out and providing the context for a testator’s intent concerning the rationale for distribution in a will or other estate planning document.  These “side letters” are not without risk and they will likely not be effective in swaying contentious beneficiary who holds to the belief that they have been cheated out of a larger share of an estate.

What I will be talking about Saturday are the benefits of drafting an ethical will or legacy letter to “bequeath,” if you will, the intangible legacy and values of a person’s life.  This writing can also greatly benefit the writer of the document to provide an opportunity help establish one’s own meaning of existence and to weave together the pieces of one’s life into something one might call purpose.  In today’s always-on age of constant chatter, busy-ness and noise, such an exercise of reflection can be priceless!

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Elder Abuse Detection: the Vital Role of the Physician

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Flowers in Stone

Colorado physicians are mandatory reporters under the Colorado elder abuse statute.  See Colo. Rev. Stat. §18-6.5-108(1)(a) – (1)(b).

There is typically a lot of shame and guilt around abuse or exploitation with an elder victim, particularly when the abuse is perpetrated by an adult child or family member of the elder and the elder may be reluctant to take any protective action on their own.  The elder often suffers alone and in silence and will sometimes neglect themselves as a result.  Remember that we don’t really have any firm grasp on how rampant elder abuse or exploitation is in our country due a number of factors which include: the reluctance of a victim to self-report; the variety of state law definitions of what constitutes elder abuse; and a lack of any central clearinghouse for collection of state or federal data concerning reports of elder abuse (in its different aspects).

Financial exploitation, emotional or physical abuse tend to have serious and life-shortening health effects for an elder.  Remember that a 2009 JAMA article on Elder Self-Neglect and Abuse and Mortality Risk stated that elders who have been abused have a 300% higher risk of death compared to their age cohort of those who have not suffered such abuse.  This is most certainly a health issue for at-risk elders and this fact makes it that much more important that doctors, particularly ER (or ED) doctors be trained to recognize the signs of abuse or self-neglect resulting from mistreatment.

The ER doctor sees not just the immediate physical effects or injuries of a physical abuse or emotional abuse (spiking blood pressure, increasing risk of stroke or heart attack) but they also see the effects of depression and other factors which both contribute to an elder’s isolation and vulnerability and are the ongoing results and manifestations of the elder’s victimization.

A recent Kaiser Health news article recently highlighted findings from a study in New York on increasing ER doctors’ awareness of signs of elder abuse.  Some of the training is around going behind the explanation of the injuries – usually from a fall or some other accident, and asking questions which may uncover the abuse which caused the “accident” and its injuries.  We have a long way to go to train more ER doctors to be up and running mandatory reports.  Doctors have made huge strides in recognizing other “accidents” or injuries resulting from domestic violence and child abuse and we need to have the same strides made for the detection and reporting of elder abuse.  It’s time!  We need to connect the ER doctors more effectively with the agencies involved in assisting victims – adult protection services and law enforcement agencies.

Here is an informative pdf from Florida State University’s National Prevention Toolkit on Domestic Violence for Medical Professionals. You might think it has to do with domestic violence, but it is a document that looks at each of the fifty states’ laws on reporting elder physical abuse. It identifies the reporting law for elder abuse, identifies who are the mandatory reporters (especially physicians and other health care professional) and provides some detail concerning the applicable civil and criminal statutes.

Why is it important to empower doctors with this information? An article from 2015 on physician screening for elder abuse observed:

Healthcare workers, more specifically Emergency Department physicians, are in a unique position in which they can not only screen and detect elder abuse in their patients, but also can change the abusive situation and prevent its continuation.

A brief article on emergency department care (filed under elder abuse treatment and management) urges doctors to take the time needed to assess a suspicious situation, noting that elders do not usually self-report and observing there may be concerns around balancing autonomy and safety.  Referral to APS is noted as “vital to decrease morbidity.”

Physicians and other health care professionals can provide important, necessary and perhaps life-saving medical care to victims of elder abuse.  Here is a link to a webinar on the ElderJustice.gov site to a webinar entitled “How EMTs Can Help Identify and Report Elder Abuse.”  When there is widely available training of medical professionals about how to ask and what to ask an elder on this difficult topic and there is also familiarity with available reporting units (APS or law enforcement) and sources for service referrals to assist the elder, elders in our community will be better served and the community will have another valuable resource for reporting incidents of abuse.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Are There Alternatives to Guardianship for an Elder with Dementia?

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Abacus of Glass Beads

I’m taking a look at the alternatives to unrestricted or plenary guardianship as a result of reading my latest issue of the ABA’s Bifocal magazine, in which the ABA’s House of Delegates adopted Resolution 113, urging states and other legislatures to amend guardianship statutes to consider less restrictive alternative to unrestricted or plenary guardianships of incapacitated adults and to require consideration of putting into place decision making supports that would allow a person the right to supported decision making as an alternative to (or reason for termination of) guardianship of an adult. I found the topic thought-provoking, particularly in light of a recently approved uniform law which contains many references to supported decision making.

In Colorado, an Incapacitated adult is defined our Probate Code at C.R.S. §15-14-102(5) as one

who is unable to effectively receive or evaluate information or both or make or communicate decisions to such an extent that the individual lacks the ability to satisfy essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance.

The definition comes from the Uniform Guardianship and Protective Proceedings Act, or CUGPPA in Colorado.  Below I’ll take a brief look at a continuum of less restrictive alternatives to implement in the making of decisions for persons who may be or become incapacitated (but not necessarily determined to be such by a probate court in protective proceedings).

First, I’ll note that each of these aspects of functional capacity and incapacity implicate a person’s rights to self-determination.  Self-determination is a broad topic. The principle of self-determination is prominently enshrined in Article I of the Charter of the United Nations.  It remains a concern under international law due to the fact that there are peoples who are not necessarily represented by the nation in which they find themselves.  For an adult who suffers from a progressive condition or disease process that results in cognitive impairment, there really isn’t such a stretch here to say that a person with dementia is at risk of being “colonized” or have their rights self-determination effectively erased by a legal determination of incapacity.  Here I’m talking about self-determination in the medical, and personal preferences context (concerning levels of care or autonomy, as well as choice of the setting in which one lives). The UN Convention of the Rights of Persons With Disabilities (CRPD), also speaks about supported decision making and you can read more about it here.

The medical or health care POA

I’m focusing on the medical POA here because Colorado’s protective proceeding for a person’s property is known as a conservatorship.  A conservatorship is often not necessary if a person has made effective POA naming an agent and the relationship is working and not otherwise under threat from an interloper.  But. . .  keep in mind that sometimes a non-agent family member or friend can take advantage of a person more easily if there is no court-imposed protection of the person’s property. Ah, there’s that ugly head of patriarchal protection (in the form of parens patriae, the power of the state to act as guardian for those who are unable to protect or care for themselves) again!

Bottom line is that, when people (sometimes known as “patients”) make their wishes known in advance to family members or others and empower another to decide for them as the person’s agent in a MDPOA , that empowerment alone can often lead to better outcomes.  But the fact remains that many of us choose not to choose to name an agent. So what’s next? In Colorado there are also proxy decision makers, which we might consider as “de facto” decision makers under applicable Colorado law.  So, that brings us to the next item. . .

Supported decision making – an intermediate ground . . .  or no man’s land?

This item is specifically included in the newly minted 2017 version of the Uniform Law Commission’s UGPPA, er UGCPAA (Uniform Guardianship, Conservatorship and Other Protective Arrangements Act) at §101(13) where it is listed as one of the “less restrictive alternatives” to guardianship.   In the proposed UGCOPAA, supported decision making means “assistance from one or more persons of an individual’s choosing” (§102(13)); and is added to the end of the above stated definition of incapacity – to read “unable to effectively receive and evaluate information or make or communicate decisions, even with appropriate supportive services, technological assistance, or supported decision making” (§301(a)(1)(A)); is an appropriate consideration for a court visitor to include in the report (§304(d)(2)); for inclusion in the court’s order appointing a guardian (§310(a)(1)); as one of the rights retained by an otherwise incapacitated adult, to “be involved in health care decision making to the extent reasonably feasible. . .  (§311(a)(3)); and in other examples perhaps appropriate for a later blog post. . . .

What are some standards for supported decision making, which is related to “person centered” planning (now part of the Medicare rules, incidentally)?

This alternative sounds all well and good Barb, but what about those elders with dementia whose cognitive impairments are likely to worsen?  Is it realistic to devise a plan for this supported decision making?  After all, those folks are arguably in a situation different from developmentally disabled adults who may can live independently and working in the community, so long as there are community supports.  But I think this is a less restrictive alternative that is seriously underutilized due to the simple fact that people aren’t used to the idea and it is challenging to identify what it might entail and look like in an alternative to probate court protective proceedings or as part of a court’s order granting a limited or restricted guardianship.

Limited guardianship

This one is pretty self-explanatory.  Only certain identified matters are under the authority of a court-appointed guardian and the rest of the rights are reserved to or preserved in the “ward.”  The tricky part with this is an important detail – scarce judicial resources.  Most courts are not anxious to re-examine how supported decision making or a limited guardianship is working and re-tool it as needed.  Most courts have a difficult enough time simply monitoring those guardians!

Plenary or unrestricted guardianship

This is the norm in this country, regardless of lip service in statutes or case law concerning less restrictive alternatives.  But if we are to truly attempt to accomplish guardianship reform, we (courts, elder law attorneys, service providers and other resources) must work together to fashion a viable alternative to what has become the quick and dirty, default request in a guardianship proceeding involving an elder with dementia who may be in the future or already is “incapacitated.”  Stay tuned for more on this topic in the future.

© 2017 Barbara Cashman  www.DenverElderLaw.org

New Proposed Federal Legislation to Combat Elder Abuse

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Italian Ceiling

 

The Elder Abuse Prevention and Prosecution Act (S. 178), passed the U.S. Senate on August 1, 2017.  You can read the text of the bill here.  It was sponsored by a bipartisan group of Senators.  It has moved to the House of Representatives for their review.

This bill has several important provisions which would support more federal involvement in areas of elder abuse and financial exploitation reporting and prosecution.  Some of these include: training federal law enforcement (FBI) in elder abuse detection; coordinating data collection and establishing best practices for data collection and sharing among local, state and federal agencies involved in reporting and prosecuting elder abuse; enhancing the services available under the U.S. Department of Justice’s Office for Victims of Crime so as to specifically include those aged 60 or older; imposing an enhanced penalty for those convicted of the specifically defined telemarketing or email marketing fraud under the federal telemarketing fraud statute; and some efforts directed toward guardianship oversight and abuse prevention.  The only problem with all the great things that this proposed new law could do is that there is no money allocated for its proposed activities.  If the bill makes it through Congress and is passed into law, it will be in a situation similar to the 2010 Elder Justice Act, many substantive parts of which lack funding for its important work.

Notwithstanding the important fiscal detail, it is important legislation in several ways that can help coordinate the woefully inadequate means of reporting elder abuse.  The federal government could help to standardize the definitions of elder abuse for the purpose of getting a clearer picture of its prevalence for reporting purposes.  Every state has its own laws and definitions concerning its elder abuse  detection and reporting  standards and some of these vary wildly, making the standardization of reporting incidents of elder abuse that much more difficult.

The federal government’s involvement here could assist greatly in getting a better idea of just how prevalent are certain types of elder abuse.  At the present time, there are numerous difficulties figuring out these important details and this obviously can interfere with the allocation of resources needed to adequately respond to the worsening problem of elder abuse and exploitation.

The numbers concerning the incidence of elder abuse and exploitation are already sickening to consider and they appear to be rising.  It is of critical importance to have adequate support for prevention and prosecution to combat this.

The bill has been endorsed by the bipartisan Elder Justice Coalition,  the American Bar Association and  the Consumer’s Union, among other groups.

If you think this legislation sounds like a good idea to help elders and their loved ones, then by all means be sure to contact your U.S. Congress member and share your opinion about this important legislation!

Stay tuned for a blog post about another piece of proposed legislation which has been introduced in the U.S. House (H.R. 2505) and Senate (S. 1151) known as the Credit for Caring Act of 2017.

© 2017 Barbara Cashman  www.DenverElderLaw.org

 

Financial Empowerment for Elders

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The Mighty Tiber

I’m privileged to be the invited speaker for Denver City Councilwoman Kendra Black’s “Senior Series” program tomorrow morning on the topic “Financial Empowerment: Planning for Longevity.”  I hope it will be a lively Q & A session with the participants!

So what is this empowerment anyway? Merriam Webster’s online defines empower as:

transitive verb: (1) to give official authority or legal power to; (2) enable; and (3) to promote the self-actualization or influence of.

Empowerment has at least a couple layers here, but for my purposes in educating and assisting elders who are living longer and in greater number than ever before, the most important aspect is the “give legal power to” in the first definition.

What I’m thinking of are documents like durable powers of attorney – both medical and general (financial) as well as other documents like a living will, a disposition of last remains and other similar documents.

Modern estate planning traverses two different “time zones” if you will – both the longevity scenario which covers the incapacity and disability side of life among the living, particularly for a long life, as well as the other side of life, or what happens after someone passes away.  Empowerment can and does often involve both of these time zones, but it is critical that the first time zone be discussed and planned for because the longer we live, the greater our chances of being incapacitated (for short or longer term periods).  Empowerment here means a conversation not just about the inevitable (death) but also about what one’s preferences are in the event one cannot speak or communicate on their own.  But it also means enlisting support from our loved ones and friends, as well as our community, in the event we need help, support or protection.

That is a big part of what I will be addressing tomorrow.  The more we talk about these important matters, the easier the conversation becomes.  Some of these topics, like elder abuse and financial exploitation by adult children or caregivers, are still quite difficult to talk about – but they are necessary conversations!

I’ll be sure to share in a later post about what some of the participants concerns were and what we discussed.  In the meantime, I hope to see some of you at the Eisenhower Recreation Center (4300 East Dartmouth Ave., Denver) tomorrow at 10 a.m.!

© Barbara E. Cashman 2017   www.DenverElderLaw.org

 

The Eclipse and the End of Life As We Know It

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True Illusion

The eclipse that is set to occur on Monday, August 21, 2017 is a big deal. I have several friends who are traveling to get a better view of this event.  One couple I know is going to Fort Laramie, Wyoming and other friends to McCook, Nebraska.  Here’s a handy map that shows the strip of total eclipse. Based on my research, the last coast to coast eclipse in the US was ninety-nine years ago.  I remember seeing a partial eclipse in Denver almost thirty years ago.  It was pretty cool.  So, if you want to “prepare” for this eclipse, go to this link on the NASA website.  After all, it’s set to last for nearly three hours, reaching its maximum at 11:47 a.m. in my neck of the woods.

So what is it about the eclipse that would cause me to couple it with. . . the end of life?!  Well, here goes.

The word eclipse comes from the Greek ekleipsis, which means abandonment, cessation, failing, omission or flaw.

But remember that the eclipse merely obscures the sun from our sight – the moon appearing before the sun to block it does not extinguish the sun, but from our eyesight-based superficial understanding of what we think we see. . . . well, what’s the difference?

It’s a matter of vision, not eyesight.

Perhaps we eclipse-seekers are simply in search of awe, what some of our forebears would call miracles. Where should we search – in the familiar places or the unfamiliar, even uncomfortable ones? That’s hard to say. Few of us look for that awe in the mundane and everyday, but that is almost always where it seems to be found, discovered, seen.

This awe can cause a cognitive shift in our awareness, as in the “overview effect.” The term was first coined by Frank White in his 1987 book The Overview Effect — Space Exploration and Human Evolution and is described in this Wikipedia entry as

the experience of seeing firsthand the reality of the Earth in space, which is immediately understood to be a tiny, fragile ball of life, “hanging in the void”, shielded and nourished by a paper-thin atmosphere. From space, national boundaries vanish, the conflicts that divide people become less important, and the need to create a planetary society with the united will to protect this “pale blue dot” becomes both obvious and imperative.

It strikes me that this eclipse, and its draw to our experience of life, is not unlike the awe at the end of life. The drawing and that movement is perhaps generated in different directions so to speak. We can “attend” the eclipse and experience it in ways we enjoy, but the end of our life demands a different kind of presence – one no less awe-some, one that we may think we are not quite ready to experience.

In his book Places of the Heart: The Psychogeography of Everyday Life, Colin Ellard looks at places of awe.  At 154 of the book he looks at research into experiences of awe which focus on two essential aspects: a feeling of vastness and a sense of accommodation.  Vastness is the feeling of hugeness and grandeur, while accommodation describes our response to what created the feeling.  Ellard notes this often involves contradiction. An excellent article on awe (and its self-diminishing aspects) and prosocial behavior can be found here.

What is the inevitable here? We can easily face and even celebrate the inevitable when it is. . . . not too close and personal!  But what of dying and how can we recognize it as it approaches and obscures our sight ? Most of us don’t want to see death coming, so we turn away!

When people refuse to have the conversation about dying and its uncertain circumstances, to name or appoint someone to speak for them in the event they are unable to do so on their own, well – then the doctors will decide for you.  Here’s an interview with Dr. Jessica Zitter, ICU and palliative care doc and author of Extreme Measure, a book about the ethics of end of life medicine. Thanks for sharing that with me Georgine!

So maybe there is some preparing we can do for the eclipse(s) of our life. . . .   I think these Buddhist sayings (dhammas) sum up this essential changeable quality of our nature and that of the cosmos most succinctly:

I am of the nature to decay, I have not gone beyond decay.
I am of the nature to be diseased, I have not gone beyond disease.
I am of the nature to die, I have not gone beyond death.
All that is mine, dear and delightful, will change and vanish.

It’s a hard place to just be, to be with the uncertainty – will there be a sun that returns after the moon passes over it completely?

The eclipse of –  disease, misfortune, old age, fear of change, death.

Perhaps we can see this eclipse opportunity as an invitation, a path, to assist us in recalling how to revere, to feel deep respect or awe for something, for our relationship with the world and with each other.  In this respect, we remember reverence through nature – our nature – not outside, but inside each of us.

© 2017 Barbara Cashman  www.DenverElderLaw.org

Capacity, Incapacity and Vulnerability

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Old boats on the Isle of Mull

This is the last post (for now at least) on the topic of capacity and incapacity. In my field of practice, I must be comfortable with making assessments of capacity concerning potential clients and I must also be familiar with the panoply of assessment tools used by the medical establishment (and psychologists who perform neuropsychological evaluations of capacity).

Capacity and incapacity are legal constructs, but they often arise within a medical context and are typically established (in the Colorado probate code as a requirement for a physician’s letter to support a petition for guardianship) with reference to medical evidence relating to a person’s cognitive capacities or mental status.  Interestingly, issues of medical capacity, or what is commonly referred to as “decisional capacity,” is something in which the court system is rarely involved.  So this relationship between legal and medical capacity is not much of a two way street!

In this post I’m looking at where these two notions of capacity and incapacity can meet.  Sometimes we hear that an elder is not capable of doing something any longer – for physical, cognitive, psychological or emotional reasons, and we often fail to consider the intersections of these parts of each of us as people.  We must depend on the integration of those capacities for our continued functioning.  Sometimes it can be very difficult to determine whether a difficulty is short lived or temporary or whether it is a harbinger of greater difficulties which lie ahead.  We each face these challenges alone, but we must rely on others in this stage of our lives, just as we have in earlier, higher functioning stages of our lives – but most of us  struggle mightily with our vulnerability.  The NIH website has a list of resources available for dementia caregivers available here.

There is an intersection between disability law and elder law in the approach to how we facilitate the assisted decision-making on behalf of another as well as the living arrangements for an incapacitated adult.  This is the term  ”least restrictive means” or also “least restrictive environment.”   The former term is distinguished from regulatory and constitutional law, in the probate incapacity context it is the language of the preference for limited guardianship over unlimited or plenary guardianship.  For the latter, we see the term in the federal Individuals with Disabilities Education Act (IDEA) which refers to inclusion and mainstreaming, which are of obvious relevance and value to elders who are losing or have lost capacity (ies).

The parallels between the rights of the disabled and the rights of incapacitated elders are numerous.  A large number of elder law attorneys practice in both fields of law because there are so many similarities.  Here’s a link to the Guardianship Alliance of Colorado’s website, which has great resources relating to protecting adults with disabilities.

This determination of incapacity sounds like a one-way street from which there is no turning back, but that is not the whole story.  I came across an interesting article by law professor Nina Kohn and Catheryn Ross about how a person previously stripped of “legal personhood” can regain their legal status.  You can read “Lawyers for Legal Ghosts: The Legality and Ethics of Representing Persons Subject to Guardianship” here.  The introduction recounts the story of Jenny Hatch, a young woman with Down’s syndrome who was a ward of the state and who successfully challenged not only the terms and conditions of her guardianship, but also her right to make decisions for herself.

Elders in Colorado are part of a “protected class” of persons in our elder abuse statute.  Some of my colleagues take offense at the reference to age because they are close to that age (70) and still don’t want to think of themselves as “old” or in need of protection.   I suspect they don’t consider themselves “old” because they don’t have enough youngsters in close proximity. . . .

What does incapacity mean for a person once a probate court has determined the person incapacitated?

Incapacity determinations by probate courts generally strip a previously capacitated adult of nearly all of their civil rights.  In Colorado, wards (what a person who is named as Respondent in a guardianship petition is called after the court determines the person is incapacitated and in need of a guardian) can still exercise their right to vote.  So once a persons is stripped of those civil rights, a ward essentially ceases to exist in many ways or is legally dead.  This is one aspect of vulnerability.

If you find this patently offensive, please consider the historical common law rules of marriage and property which were “imported” into North America by the colonists.  Hey, didn’t we recently celebrate our independence on the Fourth of July a month ago?! These “coverture laws” basically reduced the legal status of an unmarried adult (otherwise capacitated) woman from an adult to the legal status of an infant once she was married.  These coverture laws pertained to a married woman’s legal rights to own property, to sign contracts, make a will and many other useful matters.  A married woman was otherwise legally incapacitated, but she could seek relief from a court of equity.  Connecticut was one of the first states to establish the property rights of married women.  Back in those early days, the courts of law were separate from the courts of equity, the latter were often referred to as chancery courts.  Those courts were merged with courts of law in many court systems but still exist as separate courts in states like Delaware.  In Colorado’s system of “combined courts” a court sitting in probate is both a court of law (employing the statutory probate code as well as case law) and a court of equity.  Equity is specifically referred to in our probate code, but the two concepts are still legally distinguished from each other because they are different sources of law and the remedies it affords parties.

A ward can regain his or her legal status of personhood – but it can be daunting.  In Colorado, there is a special form for that.   A psychologist I know recently contacted me about getting this form and providing a supporting letter for their client – here is the form from the state judicial website JDF 852.  If imposition of a guardianship over a ward is legal death, then termination of the guardianship based on a restoration (or re-evaluation) of capacity is akin to resurrection.  I won’t go into the gnarly details about the attorney’s ethical rules of representing wards seeking termination of their guardianships, but the Kohn article above is an excellent overview of how attorneys can overcome some of the challenges inherent in our ethical rules to assist those persons in getting their legal personhood or at least some of their rights restored.  Attorneys need to assist these wards to protect fundamental rights.

That’s all for now….

© Barbara E. Cashman 2017   www.DenverElderLaw.org

Denver Senior Law Day is Tomorrow!

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Yep, Denver’s Senior Law Day is Saturday, July 29, 2017 at the PPA Event Center, 2105 Decatur Street, Denver, CO 80211.  You can register by emailing SLD@DenverProbateLaw.com or by calling 303.757.4342.  The cost is $10 and you get to hear the speakers, eat snacks and take home a copy of the 2017 Senior Law Handbook!

The opening presentation starts at 8:15 a.m., and features Maro Casparian, Director of Consumer Protection at the Denver District Attorney’s office, as well as other attorneys who will present on a number of elder law and independent living topics.

I will be co-presenting with my esteemed colleague M. Carl Glatstein from 11:15 a.m. – 12:00 on the topic of Advance Directives, the End of Life Options Act and Guardianship.  That’s quite the trifecta if you ask me! In particular I will be speaking about the End of Life Options (EoLOA) Act and will also have a bit to say about how the new law meshes with advance directives (like medical powers of attorney and living wills) as well as guardianship proceedings.

That’s all for this post!