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Dementia and the Right to Vote

Date November 3, 2016

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The Angels of Voting?

As our national election day nears, I thought it would be worthwhile to revisit the topic of voting rights and elders with dementia. What kind of folks am I describing with such a broad sweep? Here I’m talking about the people with advanced dementia, some of whom reside in nursing homes or other institutionalized settings who have a court-appointed guardian acting for them as well as those elders who are living in the community and may have a diagnosis of dementia or simply suffer from cognitive deficits or decline.

So – you’re wondering whether I will reveal that folks suffering from advanced dementia who reside in say, a Colorado “memory care” facility, still retain the right to vote? Why yes, that is one of my points! Voting law is a combination of federal and state laws. As you may recall from studying American history, some states in the late 19^th century passed “Jim Crow” laws that (among other things) imposed a poll tax, literacy test or other legal hurdle to black voters residing in those states. It took a long time to remedy the situation, but the Voting Rights Act was signed into law by President Johnson in 1965. Why do I mention this important legislation of the civil rights movement? Because it, along with federal case law, help inform the backdrop for the federal law of the right to vote. But while the Voting Rights Act and federal law prohibit states from denying any citizen the right to vote on the grounds of race or gender, the Act specifically allows states to enact laws to deny the right to vote to people for two reasons: criminal conviction or mental incapacity [See 42 U.S.C. § 1973gg-6(a)(3)(B)].

It is important to note that the right to vote has been an area of struggle for many people in the disabled community. Elder law’s capacity and incapacity analysis and some of its underlying policy often make reference to law concerning the disabled. Voting rights of elders with dementia is one of those areas of intersection with disability law.

For resident citizens who are disabled, incapacitated (those persons for whom a court has appointed a guardian) or persons with dementia, Colorado is one of a relatively small number of states (eight) which has neither mention of mental incapacity (some terms used in other states include idiocy, insanity, non compos mentis, etc.) in our Constitution as a bar to voting nor any state statutory law prohibiting the (mentally) incapacitated from exercising their right to vote. You can read more about assessing the capacity to vote here.

Keep in mind that there is a Colorado statute which relates to individuals confined to a mental health institution. That statute specifies that individuals confined in a mental illness institution “shall not lose the right to vote because of the confinement.” C.R.S. 1-2-103. So, as long as that person is otherwise qualified to vote, they will be given a ballot. Additionally, Colorado law requires mental health institutions to help assist their confined residents to register to vote and obtain mail ballots.

The difficulties for elders with dementia who are Colorado voters will boil down to more practical matters concerning, for example, how to get assistance to complete a mail-in ballot. That is a more challenging proposition as the federal law Help America Vote Act of 2002 (Pub.L. 107–252) and Colorado laws require that voters with disabilities be able to cast their vote privately and without assistance. Each Colorado county has purchased accessible voting machines to be used in every polling place which are designed to provide the opportunity for voters with a wide range of disabilities to vote privately and independently. These laws and other applicable law designed to prevent improper influence on voting may effectively render an incapacitated person’s right to vote meaningless because the person will not be able to exercise the right.

Perhaps this will be a new frontier of elder law: requiring cognitively accessible ballots and other election procedures. Making these a priority could potentially provide a tangible benefit for many other voters.

Longevity, Dementia and Ventilator Use

Date October 27, 2016

Posted by Barb Cashman

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Ketring Lake at Dusk

Longevity and dementia often go together – dementia or episodes of incapacity can be seen in some respects as the side effects of longevity. A longer life expectancy doesn’t usually mean that it will be the quality of life that a person enjoyed – mobility, autonomy, social engagement, in the early years of retirement age.

In my practice I sometimes meet with a client who is suffering some cognitive decline. Sometimes the type of brain disease or form of dementia can be narrowed down and other times this is more difficult. What is vitally important for these persons is to make sure that they have advance medical directives- in the form of a health care power of attorney as well as a living will.

I should warn you that some of this post is based on a cautionary tale. This evidenced by a recent Reuters article documenting a surge in ventilator use for nursing home residents with dementia. The study which is the subject of the article documents the number of nursing home residents with advanced dementia – mostly women – who needed to be hospitalized and were placed on mechanical ventilators. The use of ventilators for such hospital patients, however, did not lead to a better survival rate. The article is instructive in noting that this is a recent and troubling development:

In 2013, among every 1,000 nursing home residents with dementia who needed to be hospitalized for some reason, 78 were hooked up to mechanical ventilators, compared to just 39 out of 1,000 in 2000, the study found. Despite this surge, the mortality rate for these patients with mechanical ventilation remained constant at more than 80 percent.

Why is this happening? The study makes several suggestions, but a common sense answer to an important part of the question of how these patients are “ending up” with a hospital stay that includes being hooked up to a ventilator is somewhat obvious to me: these folks have not executed any health care powers of attorney or a living will. But sadly, what might otherwise be life-prolonging intervention for many patients does not have the same effect for these elder women with advanced dementia.

One explanation of what happens when a patient has not executed a medical POA or a living will has to do with what types of services are available to these patients in the hospital setting. The article quoted Dr. Gary Winzelberg as observing that “as long as it’s easier to access an intensive care unit bed [in a hospital] than comprehensive hospice and palliative care services in nursing homes, the trend of increasing use of mechanical ventilation for these individuals is likely to continue.”

Our health care system is not exactly “dementia friendly” when it comes to how it copes with the diminished capacity of a patient with advanced dementia who is unable to give informed consent and otherwise meaningfully participate in their health care decisions. This is one of the reasons it is vitally important for all adults to have “the conversation” with a loved one they trust. That conversation should ideally lead to the execution of advance medical directives – the kinds of documents that allow a person’s wishes to be upheld.

What seems theoretical and remote to so many people – is vitally important in the event the person with advanced dementia (or some other cognitively incapacitating disease or condition) wants to maintain some self-determination and the person’s family members wish to support the person’s decision to decline medical interventions like artificial nutrition and hydration and intubation (with a respirator) will become much more commonplace in the coming years as the number of people with dementia continues to grow.

So . . . how do we “work around” these difficult challenges?

– documents relating to decision-making guidance where a person is suffering from either a terminal condition or persistent vegetative state such that they are unable to made or communicate their own decisions.

The bottom line is we must be prepared and willing to help each other through this kind of difficult time in one’s life. The best way to do that is with just a bit of preparation in the form of a conversation and documented in a health care POA and a living will. Now is a great time to have the conversation and remember – it should be revisited at least annually!

End of Life Options and Deathbed Ethics – part 1 of 2

Date October 5, 2016

Posted by Barb Cashman

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At a former client’s request, I am writing a bit more about the ballot initiative Proposition 106 on the November ballot for Coloradoans. Read the text of the initiative here. It was formulated as Prop 106 after two unsuccessful attempts to get a version of the Oregon statute through the Colorado legislature. After the bill died in the spring of 2016, supporters made good on their threat to take it to the voters in a ballot initiative.

Why do I bring up “deathbed” ethics here? Because I think there is an important and a vital distinction between allowing for an easier death, a good death – which is the historical meaning of euthanasia, and the causing of death by hastening it with a life-ending prescription. In our post-modern America, we have become estranged from death and dying. Dying has come to be seen, as life has for so many elders, as the management of a medical problem. This is recently changing as more people are able to die at home and with the wider familiarization with hospice and palliative care. Most of us care about the quality of life and so, consequently, about the quality of a death or a dying process. Throughout history, we humans have always tried to control the way in which we die. But is dying an accomplishment or part of a life process? How do we master death? I am unsure of the answers to these two questions, but I can tell you that Prop 106 has one answer, to this question – that is to take one’s own life with life-ending medication, which proponents have historically termed “death with dignity.”

I find offensive the idea that the only “death with dignity” is by one’s own hand and within a time frame selected by the one choosing to end their life. I think this is no mastery of death at all, but represents an even deeper form of denial, an escalation if you will, of the denial of our own mortality. It’s as if we say to ourselves “I’ll show you death – I will choose you and not allow you to choose me!” This reminds me of a line from a favorite children’s book – Arnold Lobel’s Frog and Toad Together when the two friends (observing a hawk overhead) scream together “we are not afraid!”

We live in a death-denying culture and I see this Prop 106 as simply another means of denying death, but this step requires the endorsement of others on two levels: first, in the form of a change in the law to allow for assisted suicide or physician assisted death; and second, in the form of the fundamental change in the way doctors treat patients.

Americans love to discuss and debate the meaning of our rights and how our rights are best protected. We tend to focus on individual rights in particular and sometimes we tend to forget that for each right there must me some relationship for its exercise, some context for it to be meaningful and substantive. What if our focus on this asserted individual “right” is more akin to a coping mechanism (maybe a dissociative pattern?) in the face of suffering? In this sense, Prop 106 represents a solution to a different problem, a philosophical problem of human existence and not the one described in the initiative.

The Right to Die

The “right to die” is a misnomer for what this ballot initiative –– is about. Suicide is no longer a crime in any U.S. state. People already have a right to die as such (without another’s assistance) and people take their own lives every day. The right which the “end of Life Options” initiative concerns is the ability for a class of terminally ill persons to be able to get a prescription from their doctor (without criminal penalty being imposed on the medical provider) for life-ending drugs. Prop 106 refers to these as “medical aid-in-dying medication”, but I have difficulty calling them medication, because that would be for treatment, but this initiative includes the ending of a patient’s life as medical treatment. Is this a big deal? Yes, I think so! Colorado law currently provides that a person aiding another’s suicide is felony manslaughter (Colo. Rev. Stat. 18-3-104(B)).

This “right to die” which is Prop 106, is a right, the exercise of which, is premised upon the necessary involvement of another person (and institution) for its fulfillment. If you are interested in reading further about this, you can take a look at the U.S. Supreme Court’s 1997 decision in Washington v. Glucksberg, in which it determined that the asserted liberty interest (under the Due Process Clause) had no place in our legal, medical or other traditions and to decide otherwise, would force the Court to “reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every state.”

The State’s Stamp of Approval on the Medical Profession’s Ability to Prescribe Death-Causing Medications to Patients without Criminal Penalty

Whether we call this active euthanasia which is described in Prop 106 as a “right to die,” or a self-inflicted “mercy killing,” Prop 106 would change the most personal act of whether to end’s one’s own life into a a matter of policy, by forcing endorsement of voters and the medical community to institute a fundamental and historical change in the doctor-patient relationship.

Some patients would say that their right to receive life-ending medication should trump this historical relationship, but I find it incredibly inconsistent that, only since January 2016, Medicare has begun paying its doctors to have an end of life conversation with patients. This was a big step and an important recognition from a system that has fully supported viewing people as medical problems and not as people! Additionally, CMS (the Centers for Medicare & Medicaid Services) recently issued has new regulations that enshrine “person centered care” for residents of long-term care facilities. I think this forcing of a doctor’s hand to assist our own in choosing to take our own life is simply impatience with the problem of living – and our difficulties discerning the difference between what we recognize as living and as dying are the problem. Prop 106 is not the solution to either of those challenges.

I will continue this discussion next week when I delve further into the stated goals of some proponents and what this law allow and its implications for frail elders. . . .

Guardianship and Self-Determination

Date August 24, 2016

Posted by Barb Cashman

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View from Rocca Maggiore

In this post I’m examining the concept of self-determination in the post-adjudication context where a probate court has determined in a protective proceeding known as a guardianship (the concept also applies to conservatorship proceedings) that a protected person, now referred to as a “ward” is incapacitated and a guardian is appointed for that person. In the guardianship context, after a person’s civil rights are essentially stripped away (but leaving intact the inalienable right to vote) in a court ruling, it might seem that a discussion of the self-determination rights of a ward would be a bit late. This is most definitely not the case.

While the rights of a guardian over their ward are typically plenary and unlimited, this does not mean that a guardian can simply ride roughshod over the ward’s circumstances, personal preferences, desires and stated wishes. There are important legal principles to consider in this context. The Latin term “parens patriae” is the fundamental basis for guardianship law, the basis for a court to curtail an individual’s civil rights and name another to act on the person’s behalf.

Self-determination also factors into self-determination theory, which offers an explanation for human motivation in psychology. This theory explains motivation in two different forms: autonomous or controlled. This is relatively well-studied in the context of employment and employee motivation, but I couldn’t’ find many works on this theory in the elder protective proceedings setting. Why wouldn’t it be as straightforward as the “four S’s” that motivate us as described in this Forbes article that we want to feel: successful, socially valued, smart and structured. I realize this is a stretch when I am talking about someone with advanced dementia for example, but I think that many individuals who have trouble thinking could benefit from this approach to honor the autonomy such that it is. Perhaps if we could think a bit more practically about how to apply the upper end of Maslow’s hierarchy: esteem, love and belonging. . .

Self-determination has a longer history in the disabilities rights legal context, and elder law and protective proceedings share many of the same principles. Probably the most well-known is the doctrine of least restrictive alternative. That term which borrows from the more broadly known “least restrictive environment” which is a common thread of much of the federal law of special education and relating to rights of the disabled.

So back to the self-determination of a ward. What we are looking at is self-determination in a highly personalized relationship – that between guardian and ward. The analogies offered above, from psychology and in the motivation context do offer some food for thought here, but I think the fiduciary relationship is still the most applicable baseline. This means a subjective standard of looking at motivation and conflict in the guardian-ward relationship and how it plays out in the larger implications of the ward’s ongoing right to self-determination. I think the incapacitated ward, like people with dementia in general, have much to teach those of us who are not afflicted with such trouble with thinking and managing our behavior.

After appointment, the guardian is accountable – to the ward, to interested persons (usually other family members) as well as to the court. Under Colorado law, the guardian is a fiduciary and is held to a heightened standard of care. The Colorado Bar Association has a couple helpful brochures available for guardians and for conservators. It explains the fiduciary duties of a guardian to include the following: a fiduciary duty to the ward, meaning that you must always act in the best interest of and with undivided loyalty to the ward; make efforts to include the ward in all decisions and encourage self-sufficiency; avoid transactions that cause a conflict of interest; and make all decisions with care and prudence. Acting in the best interests of the ward means also that a guardian is expected to consider the ward’s known and reasonable desires and personal values when making decisions on behalf of the ward, and must otherwise become and/or remain personally acquainted with the ward.

I think what the fiduciary duty covers generally here is an instruction to honor the ward’s dignity and rights (such that they are) to self-determination – to allow the ward a portion in exercising autonomy to an appropriate extent. Here I bristle at the thought of our current obsession with the person’s safety, as if safety were the only thing that mattered in the care (or warehousing) of elders with dementia! Safety is without doubt important, but it must be considered in context of quality of life and a person’s dignity. I’m thinking of part of the Rumi poem “A Community of the Spirit,” on this point:

Why do you stay in prison
when the door is so wide open?

Move outside the tangle of fear-thinking.
Live in silence.

Flow down and down
in always widening rings of being.

Self-determination and autonomy – I’m wondering out loud whether it is possible to consider these important baseline values in a holistic context and not just as what the guardian owes the ward, or what the expectation of a court is relative to the guardian’s actions. Self-determination is simply too important to not take seriously in the guardian-ward context. I first wrote about this important right of self-determination of elders in the context of participation in mediation in an article I published in the March 2010 (volume 39, no. 3) issue of The Colorado Lawyer entitled “Elder Mediation Comes of Age in Colorado.” Until the next post . . .

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!

May is Elder Law Month!

Date May 4, 2016

Posted by Barb Cashman

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May is Elder Law Month, so today’s post will commemorate this effort to draw the public’s attention to the legal problems of the elderly. Because it serves the population of elders, elder law is a broad practice area and often overlaps or intersects other areas of law practice – like disability law, government benefits, discrimination and criminal law.

Elder law is also a niche practice area because it involves working with elders and an aging population in different areas of the law. Many of us work with elders who have physical challenges, some cognitive impairments and other difficulties, and we are together charting a new course for extended longevity and engaged and dignified elderhood. From my own perspective, working with elders gives me some unique and rewarding opportunities to work with people. I often provide counseling – as many other types of lawyers do, but counseling in elder law typically involves a number of nonlegal considerations which factor into the mix of legal questions which must be addressed. To my mind, the best description of this approach is “holistic.” In short, elder law practice is pretty “touchy feely” and I wouldn’t have it any other way! It demands well-honed listening skills from the attorney/counselor and requires a cultivated compassion for people and the situations in which we can find ourselves. Yes, of course I must mention a requisite fluency with the legal concerns in this area . . . which are frequently changing and evolving and while mostly based on state law, are often impacted by or driven by federal law as well.

The times have changed and many living arrangements of elders reflect this. Legal challenges for elders and their attorneys are ever changing and developing.

Improvements to quality of life for elders abound, but many challenges remain. Some of these include:

Employment issues and age discrimination
Housing availability, affordability and appropriateness
Longevity, retirement savings, social security and financial security
Health care and self-determination
Living longer and forging relationships with loved ones
Dignity and freedom from exploitation and abuse
Protective proceedings in probate court (in Colorado these are known as guardianship or conservatorship proceedings)

As a member of the National Academy of Elder Law Attorneys, I have access to helpful information on these topics in the form of NAELA brochures which I am happy to share with readers. Just drop me an email!

On the more philosophical and artistic side, take a look at this ancient mosaic recently uncovered in Turkey which depicts a skeleton and reads “be cheerful and live your life.” A timeless message to be sure – to be grateful to be alive and to have the opportunity to live one’s own life, and not that of another.

Vulnerable Elders and the Slayer Statute

Date March 3, 2016

Posted by Barb Cashman

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Italian Stone Face

A couple weeks back, I posted an update on the proposed End of Life Options Act, a bill in the Colorado legislature which has since died (presumably of natural causes). There is concern that some version of the bill will make it onto a ballot to become law by other means. For this reason, today’s post will go into a bit more detail about the concerns I raised about the implications of having no reporting requirements for such a law and concerns I have with regard to the safety of some vulnerable elders.

Vulnerable Elders

Colorado’s mandatory elder abuse reporting statute defines an at-risk adult as “any person who is seventy years of age or older or any person who is eighteen years of age or older and is a person with a disability.” Colo. Rev. Stat. §18-6.5.102(2). The only reputable (US Census based) internet fact I ran across about this population was for persons 65 and up, who in July 2014, were estimated to be 12.7% of the population of Colorado.

From a civil rights perspective, aspects of elder abuse prevention statutes can often seem paternalistic. Much of the research that could be done on the subject is problematic because of ethical and methodological problems. Collecting information about elder abuse may publicly expose cognitive, physical, mental and social vulnerabilities and the collection of such information could have negative implications in the form of legal, financial or social consequences for both the elders and caregivers and others who might participate as part of a study. I mention this because the vast majority of elder adults are competent and retain capacity, at least in the eyes of the law. The implication of these observations is that we really don’t have solid numbers about how many perpetrators and victims we are talking about. As an elder law attorney, I can say that it is extremely difficult for an elder parent to call me (or adult protective services) to report abuse or exploitation being perpetrated by an adult child or family member of the elder. Suffice it to say we don’t really know, and may never have a very firm handle on how many elders are affected as victims of exploitation and abuse.

When you couple this with the lack of any reporting requirement for a physician assisted death law, it would not be possible to track the numbers of vulnerable elders who might fall prey to an abuser’s or exploiter’s plan to hasten someone’s demise so that they might inherit something from the elder. Enter the slayer statute. Here’s an article about “disincentivizing” elder abuse. Keep in mind that elder abuse statutes have criminal penalties. There are of course distinguished from civil remedies, which can provide other types of relief.

The Slayer Statute – A Modern Law with Ancient Origins

If you’ve never heard of a slayer statute, you’re not alone! It’s both obscure and ancient. Before there were any state “slayer statutes” there was the common law slayer rule. Its origin hearkens back to the first known remedial law code in human history: the Code of Hammurabi. The Code of the Babylonian king was inscribed on a stone pillar (called a stele) and installed in a public place. It was a combination of legal principles and history. Most of us are familiar with the axiom “an eye for an eye and a tooth for a tooth” as some precept of retributive law in the form of revenge as recompense for personal harm, but it is much more likely the expression has been badly misinterpreted and taken out of context. It is probably much more closely aligned with other commentary in the code which describes the value of certain personal injuries in terms of repayment. In short, it was a code of remedial law – akin to modern day worker’s compensation and tort law.

The principle from Hammurabi’s code is that “a killer cannot profit from his wrong.” The common law rule, nullus commondum capere potest de injuria sua propria (no one can take advantage of his wrongdoing) forms the basis of the historical slayer rules and subsequent statutes, preventing slayers from inheriting from their victims.

Probably the most well-known case (from law school) to articulate a slayer rule is Riggs v. Palmer, 22 N.E. 188 (N.Y. 1889). In that case a grandfather had executed a will leaving small portions of his property to his children and the remainder to his grandson. The grandfather subsequently married and stated that he intended to change his will to include his wife. The unhappy grandson caused his grandfather’s death in an attempt to secure his portion of the estate. The court held that grandson was disqualified from inheriting because of his action and relied on the grounds of moral equity to articulate a slayer rule in American jurisprudence.

Forty-seven states have slayer statutes. Colorado is a Uniform Probate Code state, among many other states which have adopted that version of the slayer statutes. Colorado’s is codified at C.R.S §15-11-803 and contains both a criminal and civil provision for determining that a felonious killing has occurred such that a slayer/felonious killer is prevented from inheriting from the person whom they slew.

This post will be continued next week. . .

More About Proposed Colorado End of Life Options Act

Date February 17, 2016

Posted by Barb Cashman

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Italian Arch

After my recent post about this bill in the legislature entitled the Colorado End-of-Life Options act, I was contacted by someone who was concerned that I had omitted some very important information about the proposed legislation. I am posting further on this topic to provide more detail about the legislation and also to express my concern, as an elder law and probate attorney, about the particular implications of those important details – which I missed the first time around.

The bill contains no requirements regarding documentation and reporting of any of the processes described in the bill.

This is a big departure from the 2015 version of the bill – which contained provisions concerning reporting and documentation for the public health record (Colorado Department of Public Health and Environment) or the patient’s medical record.

Why is this a big deal?

Other states with similar legislation have documentation, reporting and review requirements. This is for several good reasons, but the two with which I am concerned – protecting a vulnerable population of elders at risk of abuse safe from potential coercion and ensuring their consent to end their lives is one with consent given which is sufficiently sound and documented. This reporting is to keep track of the many important details surrounding physician assisted death (PAD). Without reporting requirements, there will be no way to know how the state’s PAD is working or not working.

Elders and vulnerable elders (as defined in Colorado’s mandatory reporting of elder abuse or exploitation law) have not generally been at the forefront of the PAD movement. However, much of our death-denying and youth-glorifying culture is obsessed with the fear of losing one’s autonomy, losing control over one’s choice – and these fears factor substantially in the PAD debate. As a civil rights issue, PAD focuses on self-determination and autonomy to allow for an individual’s decision to end one’s life with PAD.

My concern is that a population of elders could be coerced and exploited into ending a life prematurely and without documentation and reporting requirements for PAD, there would be no information to document many important details surrounding a patient’s death with PAD. I believe this situation could be used by someone looking to benefit themselves by a terminally ill elder’s PAD. So what am I talking about . . . really?

In Colorado, we have a “slayer statute,” codified at Colo. Rev. Stat. § 15-11-803. The statute generally prevents a slayer from profiting from their act of killing another.

Many exploiters of elders use tactics not unlike those of perpetrators of domestic violence. These can include: isolating an elder from their loved ones or community members so as to make the elder dependent on the abuser; controlling basic life activities like provision of adequate nutrition, sleep deprivation or medication mismanagement; and devaluation of the elder’s dignity and personhood through words and action.

The state of Washington, which has a physician assisted death law as a result of a ballot initiative, also has a “slayer and abuser” statute, which is a rather unique combination. The Washington slayer statute was amended to extend the slayer statute’s application to prevent financial abusers of vulnerable adults from acquiring property or any benefit from their victim’s estate. This amendment was done during the pendency of a will/living trust challenge proceeding brought by the adult children of an elder against the elder parent’s surviving spouse, a second wife fifty years the decedent’s junior. Here is the Washington Supreme Court’s en banc decision in In re: the Estate of James W. Haviland, which concerns this tragic exploitation.

The linking of slayer statutes and elder abuse laws is a relatively recent development. One aspect of the link is the massive transfer of inherited wealth that has been underway for several years now. The sad fact is, some folks simply don’t want to wait for the uncertain date when someone dies to inherit from the person. In my line of work, these folks are referred to as “impatient heirs.” The vast majority will not resort to violence to accomplish their goals, but it can be difficult to determine this in many circumstances. Here’s a link to an abstract of a recent article on Expanding Slayer Statutes to Elder Abuse in the Journal of the American Academy of Psychiatry and the Law.

Why am I combining these two issues – the Slayer Statute as it relates to elder abuse and the lack of documentation and reporting requirements in the 2016 bill?

I don’t think it is too far of a stretch that, if this “End of Life Options” bill were to become law and not provide for ANY record-keeping, documentation for either the individual’s medical record or for the public health record, that this lack of information and reporting could provide a potential avenue for death-hastening abuse of an at-risk elder, who happens to be terminally ill and whose health status otherwise falls under the purview of this bill. The process described in the bill, devoid of any reporting requirements, opens up a vulnerable population to be exploited by an abuser such that the cause of death could be determined to have been at the terminally ill person’s own hand . . .

In short, I believe the Colorado bill’s lack of safeguards, which could otherwise serve to prevent coercion and consent, fall dangerously short as it relates to the population of elders. For more information about other states’ existing laws, take a look at the Colorado Health Institute’s piece from January 2016 on this topic.

Here’s a recent and well-reasoned Denver Post article on this topic that focuses on the bill’s lack of requirements for oversight, documentation or enforcement.

This debate is also happening in other parts of the US where similar bills have been introduced. Here’s a recent article about the assisted dying debate in Canada, where there is a new federal assisted dying law. I will close for now, but will likely be writing posts to update this very controversial topic.

Autopoiesis in Language and Meaning

Date November 11, 2015

Posted by Barb Cashman

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Mes Belles Ondines

I will begin this follow-up to my previous post with revisiting a definition of autopoiesis:

Planetary physiology is the autopoiesis of the cell writ large.

From Margulis and Sagan, What Is Life? (U. of California Press, 2000).

So the autopoiesis of self-production is a multi-layered process in which there are many different types of connections, depending on how and where we assign boundaries. Do we see the aliveness beyond our own selves? Where our own boundaries of being are and who or what do they serve? Two rhetorical questions which bring me to an examination of the nature of inquiry and the function of language . . . .

In the first chapter of Metaphor and Reality, Philip Wheelwright sets forth an equilateral triangle with the letters O (object), S (subject) and L (language) at each of the vertices, which he identifies as the “epistemological triad,” serving to illustrate the media of the formation of what might be called reality. How we talk about reality, in terms of our participation in it, just as we participate in our own autopoiesis, is not simple to identify or describe when subject and object seem to change and the vertex for language is broad indeed. How we come to describe this life each of us lives is no simple undertaking!

Further complicating this matter is looking at autopoiesis in the context of human consciousness, where autopoiesis is both a process as well as a presence, and the participation in our own autopoiesis is also participation in that of the autopoiesis of a larger context – a community, an organization or “the world” – which is constantly changing, evolving developing and if we acknowledge the evolutionary process of linear time, this autopoiesis is constantly developing higher order structures. This reminds me of Heraclitus’ observation – you can never step in the same river twice!

Sometimes we are invited to participate in something – before we know what it is or who it is that is being invited. Often we are unfamiliar with the invitation and what it asks of us. It is not known what it is – an event, a practice, a task, a knowing, an unknowing, a dance or simply play. It seems that this participation is often like play, akin to a kind of music (which is older than language) that moves through us. Makes me think of a previous blogpost about music, memory and dementia!

As with autopoiesis (and with the emptiness which is required for the process and which I described briefly in the previous post), within music and dance there are empty spaces, pauses, rests, hesitations – all of which serve to punctuate the content, organize the flow of expression and provide its beautiful uniqueness. It strikes me that this is akin to the emptiness, the absence of something which the process of autopoiesis is dependent upon which I described in the previous post. Sergius Bulgakov aptly noted:

Creation is nothing that came to be.

In our autopoiesis, language is undoubtedly part of our creation, notwithstanding its essentially paradoxical nature of what and how “it” communicates, and which also means it can be revelatory and mysterious – just as it can be more literal and descriptive.

So back to my theme here about autopoiesis and that emptiness, which I would identify as the “longing” which keeps us moving through this life, in search of. Perhaps here is an opportunity to look at two aspects of this longing, this quest of autopoiesis: for both knowledge and meaning. Knowledge is defined by Google as: (1) facts, information, and skills acquired by a person through experience or education; the theoretical or practical understanding of a subject; and (2) awareness or familiarity gained by experience of a fact or situation. This knowledge is essentially part of the world of the intellectual world, its academic nature is a collective and ongoing acquisition. As such it is a community enterprise, one that builds upon shared connections and information and advances as a field.

Meaning, on the other hand, is not so easily defined for my purposes here. . . Google’s definition offers this for the noun: what is meant by a word, text, concept, or action; and this for the adjective: intended to communicate something that is not directly expressed. The root of meaning is from the German and the Indo-European root of the word is the same as that of mind, or the element of a person that enables them to be aware of the world and their experiences, to think, and to feel; the faculty of consciousness and thought. Meaning, then, is the domain of the person and is necessarily constructed in relationship to the world and in particular to the world of experience.

These two aspects of knowledge (acquisition) and meaning (awareness) are connected and ought to be connected via autopoiesis although autopoiesis might not necessarily require the latter, but then I think of Nietzsche’s quote here: He who has a why to live can bear almost any how and would immediately reconsider that observation! The connection between the two is manifold and one without the other is folly. The more objective, spoken, literal and objective knowledge which is shared and makes so much of interpersonal communication possible is inherently rational and logical. What often allows the understanding to be readily shared however, is its rendering – which is that which means there is no life force within it and is devoid of that subjective quality of “spirit” in that it is an agreed upon construct. Meaning is subjective and personal, it may come from the unspoken language of gesture, ritual or symbol, and it also arises from our human yearning for a language of understanding, of experience , for what lies beyond words, the emptiness required for autopoiesis. “Significance” here is as unique as each one of us in any particular moment.

To come back to this clearing away, the emptiness of which is required in our autopoiesis, I am reminded how the creating – or “allowing” is perhaps more appropriate – of empty space is essentially the maintaining of space for openness, possibility and creation of a new self. If the stepping back and allowing for the creation sounds both like a process which is part of autopoiesis and also a spiritual practice, that is precisely the connection I make here. The Jewish mystical term for this is known as “tzim tzum.”

Knowledge and meaning are entwined in meaningful ways and they need to be connected – otherwise the rational or logical knowledge is barren of any aliveness, spirit, or any significance beyond its desiccated literalness that can establish its connectedness with the rest of the person and with the human community and the autopoiesis of the world. Stripped of any “need” for meaning or even any context for it, beyond the simple denial of any existence of meaning, we have what often appears in our present post-modern culture of death denial and questioning whether there is even any “need” for a meaning of life. This form of “progress”” is an objective materialism that pervades our thinking about scientific “progress” and results in an intolerable reductionism, unless you are quite satisfied with that small black box of what might pass for “reality.”

Jefferson County Senior Law Day – Saturday June 13, 2015

Date June 10, 2015

Posted by Barb Cashman

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Italian Arch

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

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

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

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

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