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Colorado End of Life Options – A Follow-Up

Date September 14, 2016

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Spring Orchid at DBG

I’m writing this as a follow-up to my last post, which elicited a heartfelt comment from a subscriber and a fruitful discussion on LinkedIn. . .

Voluntary euthanasia is when death is chosen by a person, when they are killed with their own expressed consent. These types of requests and the consent needed for such must be clear. To review a bit – passive euthanasia is when a person makes an advance directive in the form of a living will in which the person indicates the level of medical intervention – or lack thereof – in the event they are in an end-of-life scenario. In the Colorado Medical Treatment Decision Act, Colo. Rev. Stat. 15-18-101 et seq., we distinguish between persistent vegetative state and terminal condition as the triggering circumstances for the application of the living will. Persons dying according to the terms of their living will may direct in advance the withholding or withdrawal of certain medical interventions which would tend to prolong or sustain life. The Living Will is in essence a statement of wishes and the persons involved in providing for assisting with another’s grave medical condition must be aware of its existence and its contents. Unfortunately, what sometimes happens is that an elder goes to a senior center or some other place to fill out a living will form, but the elder neglects to inform their family members they have done so. No one knows of its existence or contents and so it is of no value. This is why having “the conversation” – especially with one’s health care agent – is so valuable!

So, let’s get on with the discussion at hand. Many of us have experience with active euthanasia in the form of “putting down” a beloved pet. When my dear old dog Pepper was nearly paralyzed, we made the decision to euthanize her after considering the alternatives. When two of my sons and I were with Pepper at the vet’s office (sitting on the floor with her, stroking her and telling her how much we loved her), she was injected with the drugs that would end her life. The vet commented to me – “I wish we could do this for people.”

This is the paradox of passive and active euthanasia – that active euthanasia is more humane in that it hastens the death to alleviate the suffering, while passive euthanasia requires the withholding of the means of sustaining life – which means a person can go quickly if they are dependent on breathing support or. . . . they will slip away slowly as they starve to death.

It occurs to me that many of us don’t think of the living will as a statement as to the form of euthanasia preference – or if there is no preference for such. Is the living will a document that tells our loved ones to “let us go” or is it a document that gives the patient’s preference as a statement of self-determination, to be free from the unwanted interference of others? Can it be both?

There are of course a wide variety of living will forms available. While the documents are acceptable forms of stated preferences regarding euthanasia, different religious communities have their own preferred documents in compliance with their laws or traditions. What is the distinction between letting someone die by not intervening and allowing a person to die by their own choice with the assistance of a doctor? Is there really a bright line between the two?

Getting back to the “letting go” versus “self-determination” purposes of the living will, how do these play out in the context of active euthanasia or physician assisted death (as in the Colorado End-of-Life Options initiative)? These tensions are even more pronounced in this context. Where is the distinction between one’s not wanting to be a burden on loved ones and the subtle coercion that a gravely ill person may feel to “get on with” dying so that their loved ones can be liberated from the burdens of caring for the sick person? I certainly am not suggesting answers. What I am concerned about is that people seem to look for answers without regard to the question and what it entails or requires.

An exclusive focus on the self-determination rights of gravely ill people to be statutorily allowed to take their own lives – with the assistance of medical doctors – skews the discussion. I liked Jennifer Ballentine’s article entitled “Law & Sausage: Physician Assisted Death and the Solution to Suffering.” You can read it here.

The attraction is clear – to focus on the individual right to extend medical self-determination to include physician assisted death is a very American pastime! We have a long tradition of championing and enshrining individual rights. But in the context of active voluntary euthanasia, or end of life options, such exclusive focus myopically steers that discussion away from the critical context of the exercise of such a right [author’s disclaimer: I wear corrective lenses for correction of nearsightedness]. This right would certainly not exist in a vacuum.

I don’t think it is too much to consider a look at the bigger picture here and to identify in advance of our ballot choices this November the many unintended consequences which would flow from our choice.

Guardianship of an Elder – Some Important Considerations

Date August 17, 2016

Posted by Barb Cashman

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Delicate Flower

As the number of retirement age baby boomers continues to rise, we continue to grow our unprecedented proportion of old people in our population. What does this mean for our future? Well, lots of different things, but I’m focusing on an often neglected side-effect of our longevity: the likelihood of incapacity.

Capacity itself is a broad topic in the law. In my area of practice – we typically follow the question whether someone has (or had) capacity with the focusing query – capacity to do what? Execute a power of attorney, sign a will, direct one’s medical care? Here’s a link to a document from the American Geriatrics Society about medical capacity that is an excellent Q&A on the topic of capacity in the medical decision-making context.

There are often many ways to enhance someone’s capacity if they are facing cognitive challenges. Some of these enhancements can assist greatly where the deficit in capacity is of a more temporary nature, such as confusion. Confusion can have a wide array of sources including alcohol or substance intoxication; poor heart or lung function (resulting in e.g., hypoxia); malnutrition or dehydration; blood sugar too low or too high; medications not managed effectively or withdrawal of medication; head injury or other bodily trauma; infection. Insomnia; and a number of other diseases and conditions. I mention these to contrast them with a kind of capacity that is typically not temporary and likely to diminish further as the underlying disease progresses or as the condition worsens. The kind of incapacity I am considering is not the temporary or reversible kind.

There are a number of medical conditions or diseases which can affect capacity as well. For example, there are several types of dementia including Alzheimer’s disease, alcoholic dementia, vascular dementia, frontotemporal dementia (Pick’s disease is one example) and Diffuse Lewy Body dementia which can occur with Parkinson’s disease. For our purposes in Colorado, one relevant statutory reference is to C.R.S. 15-14-102(5), which concerns the definitions for protective proceedings:

“Incapacitated person” means an individual other than a minor, 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.

In the context of the medical conditions and diseases which cause dementia, a major goal of a capacity determination is to not just identify the disease, condition or injury which is the cause of the ongoing dementia (and which often progressively worsens over time), but to identify and promote the AIP’s self-determination and other rights to the extent possible. Planning for the future can typically be accomplished even after a diagnosis or dementia such as Alzheimer’s. The Alzheimer’s Association has a helpful brochure here.

While a person with dementia faces a host of challenges to their autonomy and self-management of activities of daily living (ADL), appointment of a guardian for an alleged incapacitated person need not necessarily be a self-fulfilling prophecy in that taking the AIP’s rights away makes them less competent.

Here is a link to the Colorado Judicial Branch’s website which contains helpful information about adult guardianship in Colorado and the probate court process known as “protective proceedings.” The Guardianship Alliance of Colorado also has helpful resources, particularly pertaining to the expectations and duties of a guardian for an adult. Finally, here’s a link to the 2016 Senior Law Handbook, published by the Colorado Bar Association. Chapter 26 is devoted to guardianship of adults.

So what is the overall nature of an adult guardianship proceeding? It is called a protective proceeding because its underlying aim is to protect the well-being of vulnerable adults. This protection comes at a steep price however, the near complete stripping of civil rights of the AIP. The ward will retain the right to vote, however. So what is the task of a petitioner (the person seeking a guardianship) and what is the court’s role? Within the context of protecting a vulnerable individual and based on all the cognitive and other deficits which prevent the person from functioning at an autonomous level, there are many losses sustained. Amidst these losses, however, is the person’s ongoing right to self-determination. Self-determination is an ancient right as far as the law goes, part of the inviolable rights which set apart humankind from other beings in the animal kingdom.

Self-determination is something not often discussed except in the most desperate of circumstances, hence its relevance to this discussion. A basic precept of international human rights law (particularly in the post-colonial era), in our country’s history, it has been relevant to American Indian peoples, the disabled and other marginalized groups in our legal history and is enshrined in many countries’ constitutions.

In the future, I will be taking a further look at how the self-determination of a ward (after judicial determination of incapacity) can be supported by a guardian.

Death – the Ultimate Concern of Elderhood

Date August 4, 2016

Posted by Barb Cashman

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Chimayo Cherub

In this post in my series I will revisit the notion of a good death in the context of how we see our lives. So I’ll start with a question: What do we have or what is it that is ours in the sense of that being part of our life? I’m posing this in terms of a sense of meaning, an awareness or appreciation of ultimate meaning of or purpose to one’s life – as we face our mortality and everything in between along our life’s path – like illness, grief and profound life crises (to name just a few).

The world breaks everyone and afterward some are strong at the broken places.

Ernest Hemingway

Death is the ultimate question in this regard – the “all stop” for all that has happened in our lives, all that we have participated in to create our lives. Every living being eventually dies as each of us will one day pass away, but how do we see this ending as part of our own life, in terms of one’s own experience of isolation, connection and relation to others? Can our life prepare us for our unknown ending? Whether elderhood – either or own or our participation in other’s elderhood (as adult children for example) or our longevity prepares us to be resilient or brittle in this regard is a difficult question indeed. One writer has observed that “human beings primarily collect” and these collections of experiences (and things as representations of experience) form our identity and notion of self, but Jacques Lusseyran also observed that “seeing is responsible for the prevalent conviction that we shall understand and completely recognize the world when we progress from one form to the next, from one phenomenon to the other.” In his posthumously published collection of essays “Against the Pollution of the I,” (2006: Morning Light Press) Jacques Lusseyran (who lost his eyesight in childhood) noted that “[w]hat simply has to be understood is that seeing is not the work of the eyes alone.” Id. At 58. Lusseyran is keenly instructive on the point of the sighted taking for granted that what they see is all they see, and is all that exists. Lusseyran notes further

I believe that blindness has its own function. It has the tasks of reminding us that the despotism of one sense, sight, is unjust, and of cautioning us against the form of perception prevalent today. And, further, it is the task of blindness not only to recall to memory the origin of all knowledge, but also to remind us of the wonderful gift that permits a mutual exchange between other forms of perception and perceived pictures.

From “Blindness, a New Seeing of the World,” in Against the Pollution of the I at 64.

As we examine the place of elderhood and our own inevitable demise, can Lusseyran the blind writer who describes the seeing he experiences as not limited to the visible surface of things, or of people, point out to us the limitations of this superficial mistaking of what is real? I would submit that this has become a kind of collective amnesia, this affliction of our death denial and our obsession with youth, particularly looking or appearing young. I might be digressing just a bit, but it’s hard to say!

A person without an inner life is a person with nothing added: an empty sack which therefore cannot be filled and cannot remain standing.

Johannes Tauler

So, back to the question posed at the end of my previous post, about the difficulty of adjusting our thinking about human frailty in the face of aging. This is a fundamental question for which few of us have prepared. In our collective viewing of the superficial aspect of old age, we have come to largely identify aging as a medical problem or challenge – to be managed or overcome. Is this failure to see the person in front of us, the insistence on “seeing” only the superficial aspects of who they appear to be our own form of collective blindness? In the medical context, amidst the prevalence of hyper-specialization, is the medical care for elders largely a habitual reaction to some piecemeal medical problem a failure to see the big picture of a human being as a person and not as some collection of medical difficulties?

I am still reading Katy Butler’s excellent book “Knocking on Heaven’s Dorr” and in her penultimate chapter “A Better Way of Death,” she describes the reactions of many readers to her New York Times Magazine article about her father, his pacemaker and its complications to his dying process. It took me right back to the events leading up to my mother’s demise.

My mother was a strong and healthy 85-year-old woman who had a couple years prior survived a pain in her thigh – which turned out to be a staph infection resulting from the titanium which was surgically pounded into her broken femur and was (after many months of complaining to her doctor) after a proper diagnosis removed. But she was not in a good place when she started thinking about and demanding a hip replacement. After all, she had survived two previous knee replacements – one in her 60s and a second in her early 70s, so she was a veteran of such surgeries.

But in the previous year before her longed-for hip replacement she had lost her husband of 59 years and two of her three sisters. Did her surgeon or her primary care physician ever consider these details? I will probably never know. It was not part of the provision of her informed consent, that much I know. Keep in mind that under our Medicare system, doctors get paid well to intervene in such ways, even though her surgeon was someone otherwise known as “conservative.”

I will not soon forget the look of indignation on the surgeon’s face when I (her health care agent and only daughter) asked him about a DNR (do not resuscitate) in the event something went terribly wrong in the surgery. This on the morning of surgery after I had done some wrangling with the anesthesiologist about which anesthesia cocktail would be used as I was insistent on using the least invasive method first. Within two months she was gone from this world.

To be continued. . . .

Successful Elderhood and A Good Death

Date July 27, 2016

Posted by Barb Cashman

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Mercury and his Caduceus

This is my second installment on the theme of successful elderhood and its obstacles.

In this post, I am revisiting the theme of “a good death.” I first wrote about this in 2013 and recounted my experience with my father’s death at his home in 2010. As I write this post, I am reminded that this theme is picking up more attention.

Perhaps I will start with the practical first – how does one, with her or his own planning or good fortune, as well as with the assistance (and sometimes this is a difficult term to use in this context) of loved ones or others – pull off a good death?

Let’s start with some numbers here.

Here are some recent (released 4/16) figures from the U.S. Centers for Disease Control and Prevention which shed light on older persons’ health and mortality. Looking at the data in NCHS data brief No. 182, from January 2015 – it states:

From 2000 through 2010, the number of adults aged 85 and over in the United States rose 31%, from 4.2 million to 5.5 million, and in 2010, this age group represented almost 14% of the population aged 65 and over (1). It is estimated that by 2050, more than 21% of adults over age 65 will be aged 85 and over (2). Given this increase, adults aged 85 and over are likely to account for an increasing share of hospital utilization and costs in the coming years (3).

This is an interesting report – it offers a solid basis for my concern when I hear of one of my old (85+) clients being hospitalized! When we look at hospital admissions for the old of the old (folks 85 and over), we see the top six causes (for 2010) for hospitalization as: congestive heart failure, pneumonia, urinary tract infection, septicemia, stroke, and fractured hip. The likelihood of hospitalization for any type of injury for the 85 and over cohort was higher than the rate of either of the 65-74 or 75-84 groups. The same group of 85 and over was also the least likely to be discharged to home and the most likely of the three groups to be discharged to a long-term care facility or to die in the hospital. Of note here is the 6% figure for deaths, which is double that for the 65-74 group.

How many septuagenerians and octogenarians plan for or talk with others (from whom they will need support for their decisions and choices) about “a good death?” Well, I haven’t seen any real statistics on that! Keep in mind that Medicare recently (in January of 2016) started paying doctors for having an end-of-life consultation with their patients, so that seems like a good start. But there may be a glitch to that simplicity, as information used in a recent Forbes article shows that almost a third of doctors say that they don’t really have a formalized system of talking to patients about such matters and the same percentage (29%) they haven’t had any training on how to talk with patients and their families about such topics.

So with this rather bleak picture of the status quo before us, how is it that we can better come to grips with forging a better – more humane and dignified – path to death? Where are the sources of this helpful information? Well, we can start by listening to the dying! Keep in mind that dying isn’t simply a medical process, a failure of intervention or curative measures – it is a physical process which is inevitable for every living being. Palliative and hospice care offer means toward that end in the medical context, but as we know there are often a number of emotional, legal, financial, psychological and cultural obstacles which can appear at the end of one’s life.

I liked this article from The Greater Good which offered the following points under the subtitle “how to die well:”

Experience as little pain as possible;
Recognize and resolve interpersonal conflicts (it lists Dr. Ira Byock’s Four Things here) to say – I love you; thank you; I forgive you; and please forgive me;
Satisfy any remaining wishes that are consistent with their present condition;
Review their life to find meaning;
Hand over control to a trusted person, someone committed to helping them have the kind of death they desire;
Be protected from needless procedures that serve to only dehumanize and demean without much or any benefit; and
Decide how social and how alert they want to be.

These seven means seem simple enough – but remember the big difference between simple and easy! Can any of us really know when death is near, when the dying part of our life or another’s is taking place? If we start considering the possibility, then we see opportunities. But these questions obviously don’t have definitive answers! For all of our talk about health care self-determination, we – not just the individuals making the advance directives, but also upon those on whom the dying rely for assistance, have precious little experience with really thinking through the “what happens if” and the “what happens when” scenarios.

So I will close this post with two challenging questions –

How difficult will it be for someone over 85 to not be transported to a hospital for treatment at the end of a long and difficult illness – particularly if the trip to the hospital is for the treatment of an injury that is not related to the terminal or chronic illness?

How difficult is it for us to adjust our thinking about these things as we age and become more frail and less able to withstand the medical interventions which were more likely to be restorative or curative in our younger years?

PS Don’t forget that Friday is Denver’s Senior Law Day! The morning event is scheduled for the PPA Event Center and you can buy your tickets here.

Colorado Aid in Dying – Coming to Your November Ballot?

Date July 20, 2016

Posted by Barb Cashman

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Seated Chairs

This post is an update on the reincarnation of the proposed legislation in the Colorado End of Life Options in its new form as a ballot initiative known as Colorado Aid-in-Dying (Initiative #145). In order to qualify for the November ballot, 98,492 valid signatures must be collected by August 8, 2016. This may be a situation for which the ballot initiative was designed, where the public can exercise the power to create a new statute. Colorado is one of a number of states – mostly west of the Mississippi- that allows initiated statutes and amendments. In case you’re wondering how to go about such an effort, The Colorado Secretary of State offers a guide! The website ballotpedia lists the text of the initiative as the following:

Shall there be a change to the Colorado revised statutes to permit any mentally capable adult Colorado resident who has a medical prognosis of death by terminal illness within six months to receive a prescription from a willing licensed physician for medication that can be self-administered to bring about death; and in connection therewith, requiring two licensed physicians to confirm the medical prognosis, that the terminally-ill patient has received information about other care and treatment options, and that the patient is making a voluntary and informed decision in requesting the medication; requiring evaluation by a licensed mental health professional if either physician believes the patient may not be mentally capable; granting immunity from civil and criminal liability and professional discipline to any person who in good faith assists in providing access to or is present when a patient self-administers the medication; and establishing criminal penalties for persons who knowingly violate statutes relating to the request for the medication?

Yes, that is quite a sentence, isn’t it?! An Aurora pediatrician, Dr. Michelle Stanford, has filed a motion for rehearing with the Colorado State Title Setting Board, regarding the Title of Initiative #145, on the basis that the title and submission clause do not fairly express the true meaning and intent of the proposed state law. You can read the opening brief before the Colorado Supreme Court here. As to the form of this ballot initiative, keep in mind that Washington voters approved their state’s Death With Dignity Act by means of a statewide ballot initiative in a general election in November of 2008 (that was the second try at voter approval – the first attempt in 1991 was unsuccessful).

So – to the language of the initiative. . . . We are back to the term “mentally capable” again, which is not otherwise found in Colorado law. It is not clear to which part of the sentence the term “mentally capable” refers, which is troubling because there is no requirement of counseling in this initiative’s question, only for an evaluation in the event one of the physicians believes the patient may not be “mentally capable.” This forms the basis for some troubling ambiguity. Is it not capable to give informed consent to understand the life-ending nature of the prescription sought or – not capable due to some depression or other contributing mental health or other reason? I think both the question and a clear answer matter greatly!

I will reiterate again my reservations about the dearth of reporting and other requirements which were lacking from the second version of the proposed legislation, which was killed in the legislature in spring of this year. This question of physician assisted death is not at all likely to go away, and the debate could certainly benefit from less rhetoric and more practical considerations. Keep in mind most states still have outright prohibitions on assisted death or suicide in either their statutes or based on case law. A handful of states (Wyoming, Nevada, Utah, West Virginia and North Carolina) have no specific basis in statute or case law and are ambiguous as to the legality of physician assisted death. In 2009, the Montana Supreme Court in Baxter v. State of Montana, construed that state’s Terminally Ill Act in such a way as to allow physician assisted death.

With a goal of considering what is the dignity sought after in the physician assisted death initiative – a reprieve from intractable terminal pain and/or the dignity of choosing the time and circumstances of one’s demise? Interestingly, a fair number of Oregonians and Washingtonians who availed themselves of their states physician-assisted death laws did not actually die from the lethal cocktail of medications.

I recently read a piece by the former Boston Globe columnist Ellen Goodman, published in the June 12, 2016 Denver Post. She is also the founder of The Conversation Project, an invaluable resource for people looking to make advance health care directives and other important arrangements regarding end-of-life care. I refer many people to the Conversation Project website.

A re-evaluation of the way Americans die is already underway (thank goodness). To the extent that the physician assisted death debate sheds light of the need for ALL ADULTS (read: anyone over 18 years of age) to think about and discuss their end of life wishes and communicate them to others in meaningful ways, then this debate is a productive one indeed. For many adults that means not simply filling out some living will form at a senior center and then placing it in a safe deposit box or secret location where it will only be discovered after your death!

I still talk to folks who do not wish to have the end of life discussion because . . . well, it’s not a lot of fun, and besides – they don’t have a life threatening illness. . . Based on my experience, the point when someone is in the throes of a diagnosis of or treatment of a life-threatening illness is the worst time to have that conversation. Do it now!

Successful Elderhood and Its Obstacles

Date July 13, 2016

Posted by Barb Cashman

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A Sideways Approach

I’m working up a new series of posts on the many obstacles along the path of what I will call “successful elderhood.” Being that I am such an optimist, you might be wondering why I’m using the more formidable sounding “obstacle” as opposed to a much friendlier sounding term like “challenge.” The Merriam Webster online dictionary defines obstacle as:

Something that makes it difficult to do something; an object that you have to go around or over: something that blocks your path.

I use the term “successful elderhood” because I know it is a loaded one! How we talk about aging reflects our thinking about it and often also our feeling toward it. Is it merely a decline, a forced slowing down with no redeemable benefits – or is it a process that can be incorporated into the accumulation of wisdom – for the benefit of the individual as well as their community? Instead of quoting words of Viktor Frankl’s wisdom, I’ll quote the late theologian J. Sidlow Baxter, who asked

What is the difference between an obstacle and an opportunity? Our attitude toward it. Every opportunity has a difficulty, and every difficulty has an opportunity.

Obstacle and opportunity? Well, there’s a good one! I will try and use this as a template for paying attention to the lenses through which we view aging and elderhood. Of course I’m showing my bias already, just from using the term elderhood – I’m presuming there is a stage of human development that is capable of a fuller embrace of the unknown, of the mysteries of life, that can allow us to love the lives we have to live, despite all the odds and opinions to the contrary. This certainly is not an easy path, it is probably beyond the tee shirt slogan “getting old is not for sissies,” so I’ll quote the Sufi poet Rumi here:

A heartbreak shakes the yellow leaves from

The branch of the heart

So fresh leaves can go on growing . . .

Heartbreak pulls up the roots of the old happiness

So a new ecstasy can stroll in from beyond.

Heartbreak pulls up all withered, crooked roots

so no root can stay hidden.

Heartbreak may pull many things from the heart

But in return it will lavish kingdoms.

From: Andrew Harvey, The Return of the Mother (1995) at 156.

This idea of “successful elderhood” brought me back to a great book I (mostly) read several years ago – Carol Dweck’s book Mindset: The New Psychology of Success (2006: Random House). Dweck, a psychology professor at Stanford, wrote this compelling book based on her many years of research on motivation and other important topics. Much of the book readily applies and is aimed at motivating kids and young people toward building the successful trait of resilience, and away from the ossifying talent-obsessed entitlement way of thinking about who we are and how we operate in the world. Her basic premise, reflected in the title “mindset”, distinguishes the fixed mindset from the growth mindset and her work shows the advantages and offers much practical advice about overcoming obstacles (instead of ignoring or denying them) with a growth mindset. Feeling bad about one’s situation does not mean that one is not able to take constructive action. See Mindset at 221-24.

Whether we look at an obstacle as an external setback or an internal one can make all the difference. If we change the lens through which we look at aging, that all our hard-earned capabilities are being taken away from us by some external subjective and unpredictable process known as “aging” . . . . then perhaps all we are really looking at are challenges, challenges to our thinking in some fixed and no longer relevant context, a sense of entitlement to what we have earned, which invites us to go beyond those “yellow leaves” into a new and unfamiliar territory.

I especially liked what Dweck wrote about the growth mindset and self-control: “Then there are the setbacks. They [people in a growth mindset] know that setbacks will happen. So instead of beating themselves up, they ask: ‘What can I learn from this? What will I do next time when I’m in this situation?’ It’s a learning process – not a battle between the bad you and the good you.” Id. at 235.

Dweck’s approach is refreshing and liberating and has much to offer in support of a developmental view of elderhood. Here’s a TedxNorrkoping video in which Dr. Dweck talks about “the power of yet.”

I will close for now and look forward to my next post on Elderhood and The Economy of Gratitude. I will tip my hat to the motivation provided by my summer reading list, which has included Robert Emmons’ Gratitude Works!, Atul Gawande’s Being Mortal and Katy Butler’s Knocking on Heaven’s Door: The Path to a Better Way of Death.

Peace out!

©Barbara Cashman 2016 www.DenverElderLaw.org

World Elder Abuse Awareness Day – June 15, 2016

Date June 15, 2016

Posted by Barb Cashman

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Samurai Mask

Just eleven days ago, I presented at the 6^th annual Jefferson County Senior Law day. No fewer than three of the sixteen topical presentations concerned preventing or combatting elder financial abuse. It is on everyone’s minds as the scammers and predators continue to devise ways to relieve elders of their retirement savings.

But elder abuse isn’t just of a financial or transactional nature. Today’s post is about the World Elder Abuse Awareness Day (WEAAD). Yes, WEAAD is on Facebook – check out their page here.

Elder abuse can take a number of forms and while some of it often has characteristics common the domestic violence, working with elder victims of abuse has a unique skill set. The National Clearinghouse on Abuse in Later Life has links to webinars and other information available here on raising awareness about elder abuse and promoting dignity across the lifespan.

More information, including helpful fact sheets in several languages, is available here from the U.S Department of Health & Human Services, National Center on Elder Abuse.

According to the United Nations, which established World Elder Abuse Awareness Day in General Assembly Res. 66/127, the global population of people aged 60 years and older will more than double, from 542 million in 1995 to about 1.2 billion in 2025.

Did you know there is proposed federal legislation on this topic? Read more about the Elder Abuse Victims Act of 2016 here. While it has a very slim chance of passage, its third introduction in the house provides the following as its full title, written by its sponsor Peter King (R. N.Y.):

To better protect, serve, and advance the rights of victims of elder abuse and exploitation by establishing a program to encourage States and other qualified entities to create jobs designed to hold offenders accountable, enhance the capacity of the justice system to investigate, pursue, and prosecute elder abuse cases, identify existing resources to leverage to the extent possible, and assure data collection, research, and evaluation to promote the efficacy and efficiency of the activities described in this Act.

Raising awareness about elder abuse is a community effort! Watch this sixteen minute and emotionally powerful video about confronting elder abuse in America on the National Council on Aging’s “Elder Justice Now Campaign” page – it gives a face to victims of elder abuse. I count myself among those who aspire to old age one day, and I believe it is up to us to take measures now to ensure that elders in our community command respect and dignity and are protected from exploitation and abuse from opportunists and predators.

That’s all for now.

Yours, Mine, Ours and Theirs – What Kind of Estate Plan?

Date April 27, 2016

Posted by Barb Cashman

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A Waiting Bench

Last week I zeroed in on the importance of having in place health care advance directives for blended families and for this week’s fourth installment, I am going to go back to the big picture. Part of the post-modern impatience which afflicts so many of us is to rush to a solution to a problem which is often not fully identified and consequently, many options which may have more comprehensively addressed the situation are never considered. This is the old saying “don’t just do something, stand there!” I offer that somewhat tongue-in-cheek because I know this is foreign to most of us, who are much more comfortable with our roles as “human doings” as opposed to “human beings!”

So let’s consider first the background for this big picture with a questions: what kind of family are you?

I recently executed a will for an elder client who mentioned to me that, besides providing for her five children, she considered in many ways as a son a man for whom she had served as a foster parent. She had made provision for him with an insurance policy.

There are many different types of family just as there are many different types of families. There are those “families of origin” which are usually those into which we are born and sometimes adopted. Then there are “families of creation” – those which we choose by the relationships we have, be they biological children or other children, partners, spouses, extended family and friends.

So, back to the question posed above. . . the first obvious question is:

Are you married?

What kinds of joint or separate assets accounts do you own and how will those assets devolve (legal term for be inherited by) upon your surviving spouse, your children or stepchildren, and others for whom you wish to provide?

Do you have a marital agreement which often helps inform the disposition of property in the event of divorce and/or death?

And if you are not married . . . then what?

Well, quite honestly – this is where things can get much more interesting. Where the institution of marriage can provide much clarity as to whom will inherit a deceased person’s assets, a lack of a marriage can create many difficulties in long-term relationships if certain measures are not taken. Many of marriage’s “protections” are evident in the law of intestacy, set forth in our probate code, which provide a myriad of extras available only to a spouse. There are also protections which allow a surviving spouse to “take against the will” of the first to die spouse if the surviving spouse is qualified to do so. (This is somewhat complicated, so I will not explain further at this time.)

Have you and your partner ever “held out” as spouses? Then common law marriage might be applicable. Contrary to some modern folklore, there is no amount of time alone of cohabiting that is sufficient to support the existence of a common law marriage.

Are you and your partner clear about remaining unmarried to each other? This sounds odd, but there are many reasons couples do not wish to marry. I know of one couple that chose for many years not to marry simply because they were afraid of (read – unfamiliar with) the legal consequences of marriage on their children’s rights relative to the step-spouse!

Couples will sometimes enter into agreements with each other to delineate the boundaries of their relationship. Some of these might include: a nonmarital agreement; a living together contract; or perhaps a designated beneficiary agreement. There are a number of ways in which an unmarried couple can solidify their relationship and many of the legal uncertainties surrounding it by simply executing such agreements. Of course, before these agreements can be entered into, discussion must be had.

As we Americans are living longer than we ever have, perhaps it is time to think a bit more about our living arrangements and the relationships on which they are based. More on this later!

Yours, Mine, Ours and Theirs – Health Care Advance Directives

Date April 20, 2016

Posted by Barb Cashman

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Not quite empty nests!

I am continuing my series of posts on the theme of blended families, adult children and stepchildren, and some of the challenges of estate planning within such a modern context of family relationships.

In my first post, I gave an outline of some of the terrain I would be covering here. In the second post, I looked at some of the unique questions posed blended family estate planning, along with the potential for conflict if nothing is done to plan. The last point discussed in the second post concerned differing styles of coping with or managing conflict and the importance of identifying what is important as well as knowing the challenges. A colleague emailed me after seeing the post, commenting “It’s as if you were listening to my recent conversation with my husband of 18 months!”

Okay, let’s get started with the third post already! Here’s a link to some helpful information about stepfamily members and inheritance. I’m including resources here about inheritance expectations of children, stepchildren and so forth because they are part of the equation, they are the “theirs” which I include in my title for the series. In my experience working with blended families, the “theirs” is always part of the picture, whether the expectations of adult children are acknowledged as such or whether they are described and set forth from the parent’s point of view in the estate plan. Hence my inclusion of that term “theirs” – even if the adult kids are not at the table so to speak…. So getting back the content of this post, let’s consider some of the “what happens if” and the “what happens when” scenarios in the blended family or some “de facto”[i] version of it.

Getting back to my original premise about blended families estate planning having no “template” like the historically “traditional” American family did, it is worth considering first – what kind of blended family are you? Do you have: kids from both sides; aging adult parents; older, established adult children; any special needs children to provide for; an inheritance from a deceased parent or other relative which you wish to keep in your line of descendants; are long term health care considerations important; and lots of other questions. Most of us like to go directly to problem solving mode when we face a challenge. What I think is important to consider as a preliminary matter here is holding off on that step until you determine what are the important values which will inform both your individual and your joint decision making. If you get to problem solving too quickly, there will be likely misunderstandings about the purpose and nature of what was decided and, of course, the utility of such decisions. I should also add that, just like the rest of us over the age of 18, we should be having these conversations about who we want to make decisions for us in the event we are unable and expressing our end of life wishes to family members and loved ones.

I’m focusing on one particular issue in today’s post – advance directives for health care. “Advance directives” include two important documents: a health care (medical durable) power of attorney (POA) and a living will. These two documents work together for the most part, but from my perspective, if you only have one of these documents – execute a health care POA because that document names a person to make decisions for you in the even you are unconscious, unable to communicate or otherwise unable to provide informed consent for medical care. Remember, health care POAs are, by their nature, what we call in my line of work a “springing” POA – meaning that the agent named in the document is only empowered to act as agent if the health care provider determines that the patient/principal is unable to give informed consent. An agent cannot give informed consent for a procedure when the principal is otherwise able to provide informed consent. This is informed consent matter is important, I have previously written about it in the context of the Nuremberg War Crimes tribunal.

I don’t usually like to use fear as a motivator to cause people to act, but a failure to execute a health care POA and name an appropriate agent to make decisions for you can have dire consequences in the blended family context. A failure to discuss and plan for either the unlikely or the inevitable can result in conflict between the spouse and their step-children. This is seldom what people want!

With the health care POA, the principal (the maker of the POA) should carefully consider who is the best person for the job – who is the best equipped emotionally to make difficult decisions and who will be able to effectively communicate with all the necessary parties involved. Usually, if adult children know that this conversation is taking place with a parent and step-parent, there is a collective sigh of relief. I suggest continuing the conversation at a family dinner or other event, so everyone is informed of who is named as gent and successor agent, who will be in charge of decision-making and how communication will be conducted. It goes without saying that this should be an ongoing discussion over the course of our lives!

You can imagine that there have been many difficult lawsuits brought where there was no such document in place or plans were not otherwise sufficient. Family peacekeeping often involves thinking ahead to avoid conflict, and this is just what advance directives can provide for a blended family. Here is a link from the CDC with many helpful resources, including the American Bar Association’s Consumer’s Toolkit for Health Care Advance Planning. In future posts, I will be looking at the financial power of attorney and other useful means to manage our longevity and disability.

And in celebration of our glorious sunshine here in Denver (after a lot of snow over the weekend!) how ‘bout a bit of eye candy? Check out Colossal’s post about “The House of Eternal Return,” a previously abandoned bowling alley in Santa Fe which now houses a brilliantly colored immersive art installation. Inside the space is a house, complete with a bathroom with a wavy tile floor. I think the “eternal return” theme goes nicely with the desire of so many of us to remarry. Here is that oft-quoted statement from Oscar Wilde about marriage:

Marriage is the triumph of imagination over intelligence. Second marriage is the triumph of hope over experience.

That’s all for now, will continue next time with more details for the ongoing discussion. . .

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[i] I use the term de facto here to distinguish from de jure blended family. Most of my posts will covered married persons, but I do not wish to exclude couples who make other, nonmarital arrangements which often resemble marriage, but without its conventions and protections. Here’s a good description of the difference between the two legal concepts.

Digital Assets – Coming Soon to a State Near You!

Date February 24, 2016

Posted by Barb Cashman

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Cutout Constellation

Colorado may soon be getting some legislation in place concerning digital assets in the probate context! Today’s post will look at the benefits of having a digital assets clause in such estate planning documents as a general durable power of attorney or in a will.

Here’s the link to SB 16-88, which is a bipartisan bill entitled “Concerning the ‘Revised Uniform Fiduciary Access to Digital Assets Act,’” or RUFADAA for short. The RUFADAA has been introduced in 29 different state legislatures so far. I have already written several blog posts on this topic of “digital assets,” and my most recent one on the topic mentioned the revision of the uniform act by the Uniform Law Commissioners (ULC) last July. If you’re looking for a bit of background on digital assets, read this post.

Of course I still don’t know for certain whether the RUFADAA will pass (still working at using my crystal ball successfully . . . ), but it seems like it will. On Monday (2/22/16), it was introduced in the House and assigned to the Judiciary Committee. The controversies which plagued its predecessor, the UFADAA, have largely been eliminated with the ULC’s RUFADAA.

So to begin, here’s a few helpful pointers.

Specify and distinguish between assets and access

It’s not enough to simply generally describe online or digital assets in a POA or other estate planning document because there are important nuances and details which third parties, upon whose approval an agent acting for a principal must depend, which must be address. The difference I’m talking about here is identified in the bill’s distinction set forth in §15-1-1502(9), which states a “designated recipient” means a person chosen by a user using an online too. To administer digital assets of the user,” and §15-1-1502 (10) “digital asset” means an electronic record in which an individual has a right or interest . . . .

Keep in mind that some internet service providers already provide their own online tools by which a user can designate individuals who are authorized to receive the content of a user’s account in the event it is inactive for a period of time determined by the internet service provider (ISP). On Facebook, for example, this is known as a legacy contact.

In this circumstance described above, the fiduciary for a decedent estate (a/k/a the personal representative in Colorado) or an agent under a POA must contend first with the user/principal’s specific direction (if it exists) and to the extent that no designation was made by the user/principal, then the governing instrument (e.g., a POA) would control. Finally, if there is neither a specific direction by a user/principal as to who shall have the power to access nor a POA or other governing instrument, then the standard term of service agreement controls.

Recognize and give priority where applicable to “online tools”

This coordination of designations in an ISP’s online tools with, for example a POA, is an important undertaking for RUFADAA purposes. If the user (be they a principal under a POA or the decedent in an estate administration proceeding) has already designated a person or persons to have access consistent with the ISP’s online tools, this will take precedence over the estate planning documents. See the RUFADAA at §15-1-1504. In this context, it would be a good idea for the user to ensure that the selected agent is not only just the agent for POA purposes but is also a designated recipient as identified above.

Things are continually evolving!

Evolving was chosen over changing because it has a more positive gloss, doesn’t it? The change is ongoing. These will keep estate planning and probate lawyers on our toes to advise client of developments affecting access with the use of online tools and also ensuring that a user’s selected fiduciary (agent, personal representative, etc.) will have access to the assets as intended by the user.

So – a scenario to avoid would be one in which the user designates one person to have access by naming them a designated recipient, but then (perhaps at some later date, unwittingly) names another and different person as (for example) agent under a POA. This kind of a conflict will cause problems and should be avoided. No, this online networked world we live in is not getting any simpler to manage!

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