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

centennial probate lawyer

Italian Marble

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

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

Defining Death

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

(1) An individual is dead if:

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

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

including the brain stem.

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

medical standards.

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

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

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

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

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

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

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

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

©Barbara Cashman  2015   www.DenverElderLaw.org

More Adventures of the Psychopomp

Wheel from Assisi Church

Wheel from Assisi Church

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

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

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

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

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

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

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

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

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

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

 

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

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

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

That’s all for now.

©Barbara Cashman  2015   www.DenverElderLaw.org

Approaching Grief and Grief’s Consolation

www.denverelderlaw.org

Piazza Sculpture in Siena

Life, living and being open to change (whether it is desired is another matter) invariably involve grief, because change – inevitable as it is – often involves grief, a recognition of a loss for something or someone beloved or simply familiar.

I find it odd that so many people use fighting terms and war language in reference to a disease or threatening physical condition, as if it were “the enemy” which must be vanquished at any cost.  This is quite contrary to many other cultures’ acceptance of the inevitability of death.

I found instructive some of the teachings from the Samurai code of conduct, known as bushido and as described by the late Japanese writer (and paradoxical figure) Yukio Mishima in the 1977 Basic Books’ translation of “The Way of the Samurai: Hagakure in Modern Life.”  He observes that when a samurai is constantly prepared for death, he has mastered the Way of the Samurai and if a man holds death in his heart, thinking that whenever the time comes he will be ready to die, he cannot possibly take mistaken action.  What Mishima describes is an intimacy with one’s own death that can help train one’s heart and mind to focus on the life that is right now, in the present moment.

I also think of the Native American saying (attributed to many different tribes and bands as well as to the Lakota leader Crazy Horse) “today is a good day to die.”  Its essence reflects the belief that one should never live a moment of one’s life with any regrets, or leave important tasks left undone. This preparation, which is an acknowledgement of our mortality and life’s fragility and uncertainty, means that it would make today as good a day as any to die.  Implicit in the ability to recognize a “good day to die” is the understanding that one can more easily let go when a life is well-lived, because of course the proper focus here is on the quality of life as a continuation of that life in its ending, in death.

How different this approach is from our death anxiety and death denial of the post-modern age.  Mortality and disease are often seen as the “enemies” in the medicalized model which is so prevalent now for health care for our elders.  We simply want more time – but what do we often do with the time once we get it?  We bargain for more.  Longevity becomes as obsession, a form of greed in some respects because that greed for more quantity of life, not quality, separates us from the “how” of our living, leaving only some length of days for which we should be grateful.  Greed for our quantity of life, and for those experiences that we will miss if our life is “cut short” (at whatever age) – this greed is a form of forgetfulness of our mortality.  To the extent we remember, we often feel “out of control” and anxious due to the uncertainty or our demise – both the timing and circumstances.  I have known one woman who planned the meal for after her funeral service including the menu for the caterer.  How many of us could do that?  Mostly I think we follow what is written in so many Tax Court rulings: “taxpayer died unexpectedly.”

Or perhaps it is simply because we have become rather used to thinking of our physical body as something separate from ourselves somehow, as if it were a medical problem to be managed.  This is in many respects the post-modern mechanistic view of North American longevity and life.

And what of the consolation of grief, or better expressed as “from grief” – the recognition that we are never alone in our grief as there is always someone who has, in their own way, experienced an incalculable and unfathomable loss? This is part of our human condition to be sure, but as Heraclitus observed:

Whoever cannot seek

The unforeseen sees nothing,

For the known way

Is an impasse.

Perhaps he is also addressing a similar choice presented by the entry of life via the narrow gate.

What if grief is not something that “happens” to us that is to be “gotten over” but is rather a fundamental aspect of human activity, of be-ing human?  How might this change how we look at our mortality and our inevitable death?  In this respect, grief can be viewed as an invitation to be more fully human.  We, in this dark age of pervasive objective materialism, where mysteries are stripped away – are challenged deeply by this.  We can’t measure the unseen or the mystery or think it through because it is a quality of being.  This is the domain of the heart – a realm that includes the rational but goes well beyond its rather short tether.

Finally, I’ll close with a good clip to watch of a Canadian friend, Judith McGill, who is a “death midwife.” She was recently featured in a CBC- Radio Canada broadcast and you can listen to it or read it here.

©Barbara Cashman  2015   www.DenverElderLaw.org

Elderhood, Exile and Pilgrimage – part one

Desert Monolith

Desert Monolith

I first wrote “old age” in the title instead of elderhood, but thought better of it.  “Old age” can refer to something that is measured chronologically, while “elderhood” is more of a qualitative developmental stage I think. . .

Getting old(er) slows many of us down and sometimes can lead to a different kind of discomfort and pain – that of stillness and silence, sometimes born of simply slowing down and appreciating solitude, sometimes it is from being alone.  How many of us insist as we age that we shall keep on doing just as we have done before, it is the mantra of our youth-glorifying culture to always be active, participating, making, contributing, talking and so on.  But sometimes, we can find ourselves in a desert of vastness, alone and, as is appropriate for a desert, “deserted.”  This unfamiliar place and mode of being is so unfamiliar to us, it is often a frightening wilderness.  How can we go on in this strange place and why would we want to go on?  Thomas Merton observed in “Thoughts in Solitude:”

To wage war against despair is our wildness.

Perhaps we need the wilderness of desert, of that place of exile, if we hope to be able to discover our wildness.  This is what I am referring to when I write about exile, the wilderness of the unknown.

I recently met with someone who chose to return to Colorado to live.  This person had retired from the foreign service and had a foreign-born spouse and had not lived in Colorado for more than probably sixty years.  It seems that our sense of place, of belonging somewhere, is often inextricably tied to the movement we experience in our lives, along with the ancient mythological notions of exile and return.  So too our sense of belonging is often based on a comfortable way of being in the world that serves the limited and limiting needs of the ego-self (and not the higher self).

Next month is National Poetry Month, so I’ll start a bit early with this haiku from Saigyo:

So loath to lose

What really should be loathed:

One’s vain place in life,

We maybe rescue best the self

Just by throwing it away.

From Sanka-Shu (Lafleur transl.) in The Karma of Words: Buddhism and the Literary Arts in Medieval Japan (1983) at 100.  The transition to old age or elderhood can be a journey of years, a waking up in a strange and unfamiliar place, or even a drawing of a curtain of darkness between what-once-was-and-is-no-longer and a present existence which simply cannot be accepted.  In the latter place of being I am taking about the deepest level of youth glorification that can often continue during a person’s old age, when we focus exclusively on the losses sustained by our “doing” and otherwise capable self.  Death denial would seem merely to be an extension of such thinking.

Okay, there’s elderhood, old age and exile . . .  so what about pilgrimage. . . ?  It just so happens there are more than a couple springtime pilgrimage festivals if you will: Passover, one of three pilgrimage festivals on the Jewish calendar and Easter holy week, a pilgrimage time for Catholics, Eastern Orthodox and other communities.  Pilgrimage is in many respects a traditional ritual which is anti-modern in experience for many people who choose to make a pilgrimage.  Note how interesting is the common Indo-European roots of these three words: holy, whole and heal.  Definitions for pilgrimage include:

A journey to a shrine or other sacred place;

Journey or long search made for exalted or sentimental reasons;

Any long journey, especially one undertaken as a quest or for a votive purpose, as to pay homage.

And these are just a few!  In many ways, exile can be a form of liberation – whether we choose to see it that way is up to us of course (as is how we see anything).  Reminds me of the quote about seeing the world as we are, not as it is, which on this occasion I’ll attribute it to the poet and mystic William Blake, who also wrote:

Mysteries are not to be solved. They eye goes blind when it only wants to see why.

In many ways exile can be a form of liberation – whether we choose to it that way is up to us of course.  Is this perhaps why so many pilgrims go on their trek to begin with?  I’m think if many modern pilgrims walking along the Camino, making the Hajj to Mecca, or traveling to Chimayo, New Mexico – and many other places and paths.

Please stay tuned for part 2 next week. . . .

©Barbara Cashman  2015   www.DenverElderLaw.org

 

Advance Health Care Planning and the Death Taboo

Summer Flowers

Summer Flowers

Early on in my blog on this website, I wrote a post entitled Law as a Healing Profession, which included a discussion of a law review article by Mark Glover, author of  “A Therapeutic Jurisprudential Framework of Estate Planning.  So I turn again to the big picture of our culturally-accepted death denial and look at the context for some documents that lawyers often prepare to help clients cope with this uncertain enterprise known as life.  Yep, there’s another law review article I’m considering as well – this one entitled “In Denial: The Role Of Law in Preparing for Death,” by Barbara A. Noah and published at 21 Elder L.J. 1(2013) and which you can read here.

Many baby boomers are facing end of life questions and responding with a conversation with family members or loved ones about their wishes.  This is a very positive step.  The conversation must be had many times over the course of our lives, so we know what we want and communicate those wishes to others.  There are different motivations for these important conversations, which are often the result of unsettling experiences around an elder parent’s death, and which compel a person to do things differently.  These conversations are important and invaluable for families and communities, however there is still much death denial.  For a different treatment of the question of death denial, read “Confronting the Cadaver: The Denial of Death in Modern Medicine.” Death denial is found in many places in our culture, it is particularly prominent in our technology centered medical model.  How we have come to be estranged from death has much to do with the fact that most of us don’t have much experience with family members dying at home as this is typically left to the medical professionals to manage, which separates us from the passing of a loved one and what we often feel as our helplessness in the face of encroaching end of life.  The fact is, no one, no institution or technology can protect us from death.

Whose denial is it anyway?  It isn’t just a modern American phenomenon – the death taboo has relevance in many aspects of other cultures and traditions.  Wellness, disease and dying can also be understood in the broader context of medical anthropology, which often informs thinking around the dying process and death.

But even amidst the further study of death denial and criticism of its power to alienate us from life – has much really changed since Ernest Becker’s groundbreaking 1973 book The Denial of Death,  where Becker attributed the materialistic high-tech nature of modern life (I would call it post-modern, to be more precise) that left us in the shallows searching for the meaning, the missing depth of life in the context of inevitable death.  Fear and anxiety are like sharks there in these shallows, terrorizing many of us into a state of helplessness and feeling out of control.  It is one vicious cycle.  In our autonomy-valuing, action-based view of choosing what our lives are, isn’t death the ultimate indignity, particularly when it comes at the end of a disease which we may view as being one that robs one of autonomy and dignity.  Yes, I’m thinking of the ill-fated “death with dignity” bill that made it to a second reading in our legislature in Colorado.  The whole idea behind the “dignity” described in that proposed legislation was to preserve the dignity of a person’s ability to choose, to do something in response to the indignity of disease and its quality of life robbing advance.  This is human dignity that is focused exclusively on the “human doing” and not the “human being” so to speak!

Whose death is it which we confront?  Can we really be present for another’s death if we don’t really know how to do that?  Here’s an article from a nursing journal about death anxiety.

There are many other interesting developments taking place in many communities across the country which respond to the alienation from death by making it part of our lives once again.  I’m thinking here of home care for a recently deceased person, a DIY funeral care in one’s home as well as wider involvement of those who have come to be known as “death doulas” or midwives to the dying.  You can read a recent New York Times article on this topic here.

I’m sure I’ll be writing more soon about how many of us are reclaiming the use of ritual around end-of-life care and the dying process and also the re-sanctification of the dying process…

©Barbara Cashman  2015   www.DenverElderLaw.org

Part II: Is Physician Assisted Death Coming to Colorado? (Not this year)

At the Chatfield Wetlands

At the Chatfield Wetlands

This is the continuation of my previous post about the Colorado House of Representative bill on physician assisted death, on the topic “Concerning a Terminally Ill Individual’s Freedom to Make End-of-Life Decisions, a/k/a the “Colorado Death with Dignity Act.”

If you’re curious about the debate in other parts of the world, here’s a link to a recent article in The Guardian.  And here’s a New York Times article from last year on the topic of “aid in dying,” as there are variety of names for what is collectively physician assisted death (PAD).  Well, back to the Colorado bill.

I will continue in this post with some of the concerns I have with the proposed legislation – from the standpoint of what is in the bill (terminology) and how it works (philosophy).  I have difficulties with the term “informed decision” and how it relates to the principle of informed consent – the process for getting permission for a patient prior to conducting a healthcare intervention.  Based on the definition in (7) of section 25-47-102, this “informed decision” doesn’t look like informed consent.  What is it that the doctor advising a patient about this life-ending process must advise their patient? Some of it is informed consent, but it seems to be bigger than that and only for purposes of this legislation.  This is vague and troublesome indeed.   Can’t we just call it informed consent for ending one’s life? Will that agitate the medical community? This is another unsaid conflict that should not go unnoticed in this bill.

One of the stated concerns relating to a person’s capacity in this bill is that the person be “capable” and not otherwise suffering from a depression-impaired ability to make an informed decision.  This bill seeks to pigeonhole diagnoses, to impose clarity in another rather gray area.  There are some terminal diseases, like Parkinson’s, which often have a psychological or psychiatric component that cannot be easily extracted from the disease itself.  In my experience, I have seen disability insurers seeking to exclude from coverage a person with a diagnosis of Parkinson’s disease because those persons often also have a diagnosis of depression that accompanies Parkinson’s.  I use this by way of example only, to assert that it is not at all simple for any health care provider to extract a psychiatric or psychological disorder such as depression (as stated in the bill at section 25-47-107) that accompanies a diagnosis or prognosis or course of disease progression from that which impairs one’s ability to make an informed decision.  There is a psychosocial component to many terminal illnesses, you can read more here about treating depression in advanced cancer.

This goes back to the rather slippery nature of the informed decision versus informed consent distinction.  The medical-technological focus on dying in this bill is on death not as a natural process of life but as a medical problem.  I believe this is in large part what perpetuates the avoidance and the denial of death in our culture.  Using emotional restraint, facing death stoically and by deciding bravely to “assert control” to foreshorten any disturbing developments of the disease progression or any needless suffering are all bureaucratic way of making death “ordinary” in the sense it happens to us all.  This extends the social isolation of the dying person, making their suffering worse, a dying person is in this way of thinking simply a useless reject of a person.  The “brave choice” of a person in this context converts the life-ending decision into a glorified act of autonomy.  The individual’s decision is theirs alone.  This approach of physician-assisted death (PAD) stands in contrast to the family unit or community based models of hospice and palliative care, which seek to lessen pain, maximize quality of life for the dying and hold those persons in their identities.  In this respect, PAD becomes a means of the individual’s attempt to fight back against the ignominy of illness, of life-robbing disease which compromises one’s social identity.  I don’t buy it!

Another problematic inclusion is the family notification provision in section 25-47-109.  I am not sure why this in the bill. I don’t really understand what its point is, it seems to be about the doctor recommending some kind of reconciliation if the patient is estranged from his family, which may have nothing to do with patient’s decision to end his life with assistance from a doctor. It seems to hint at including the family in a person’s decision, but it is a feeble attempt at such.

The last point I will raise specifically about this bill, is its reference in section 25-47-103: “Individuals permitted to request life-ending medication”

(1) that an individual is qualified to make such request for life-ending medication if the individual is (a) an adult; (b) is capable; (c) is a Colorado resident; (d) is suffering from a terminal illness. . . and (e) has voluntarily expressed his or her wish to die.  

(2) “A person does not qualify under this article solely because of age or disability.”

This seems to be saying in (1) that those whose quality of life was fully autonomous and who suffer from a terminal disease which implicates that autonomy, by its diminution by degrees, or by an aversion to “suffering” or one’s inability to “control” it – those are the persons who are likely to avail themselves of the life-ending process, for whom this legislation is designed.  It implies in (2) that the disabled and elders who are perceived as “dependent” on others or with some diminished quality of life and whose lives are often pitied by the “young,” able-bodied and independent, would otherwise qualify for life-ending medications based on some perception of the disabled or elder’s quality of life.  I do not imply here that there is any unified voice of the disabled community or of elders voicing an opinion about this, I find this language offensive.

More indifference to the suffering and social isolation of the terminally ill and dying persons is not the answer.  To hasten the demise under the banner of the socially acceptable terms of “autonomy” and “dignity” is not a way of de-medicalizing or re-humanizing the dying process, rather the PAD is a feeble attempt to make death “less threatening” and I just don’t buy it.  The lack of ritual around dying, along with the absence of any recognizable system of meaning around dying and death has resulted in the further isolation and stigmatization  of the terminally ill or dying person.  This bill to allow PAD does not promote death with dignity, rather it offers the socially acceptable perpetuation of the illusion that death con be contained and controlled and need not be “disturbing.”

Update from Friday Feb. 6th’s evening legislative activity: The House Health Committee voted to kill this bill (HB 15-1135) on an 8-5 vote.  Two of the Democrats on the committee joined the Republicans to oppose it.  

©Barbara Cashman  2015   www.DenverElderLaw.org

Is Physician Assisted Death Coming to Colorado?

The Road Only Appears to End

The Road Only Appears to End

I recently looked at the Colorado House bill 15-1135 on the topic “Terminally Ill Individuals End-of-Life Decisions, a/k/a the “Colorado Death with Dignity Act.”  You can read the January 9, 2015 draft here.  There are, as of February 2, 2015, two senate sponsors and an updated version of the bill.  My first challenge with this bill is the how it is marketed – the idea that “death with dignity” can only be accomplished by one’s own hand with the assistance of a physician.  If this sounds provocative, it is – but it implies that the disease process part of a person’s life or the dying from the insult of disease is somehow not otherwise dignified.  Here’s a link to a Jan. 27, 2015 Denver Post article about this proposed legislation, and a link to another appearing on Feb. 1,2015.  This is the first post in a series.

I find myself in the same camp as the hospice and palliative care community as far as the title is concerned.  The idea that the way to die “with dignity” is through physician assisted death by one’s own hand is offensive.  End-of-life decision making is an area in which Colorado residents and patients have many resources.  The title implies otherwise and is simplistic and misleading.  I also find the bill’s descriptions of “alternatives” such as hospice care and palliative care are confusing and misleading. I am unable to come up with a scenario in which physician aided death is a true “alternative” to these.  I think in all cases with which I am familiar, patients have already been under the care of a doctor for hospice or palliative care.  The physician aided dying is more of an “end of the line” complement of sorts to these well-established, even if not widely-recognized forms of medical care.  The primary distinction between these, what makes physician assisted death (PAD) a real alternative to hospice and palliative care is that physician assisted death is not a natural death as the result of a disease process.  PAD represents a premature death, hastened by a number of different perceptions and choices about what one’s life is for as well as one’s own ideas about loss of autonomy amounting to loss of dignity and as needless suffering.  In this respect, terminal disease is a failure of one’s ability to control an outcome, and fear of a change in one’s identity in the world due to a change in one’s relationship to others.  I think physician assisted death further isolates and marginalizes people and the dying in particular.  It is in the time of weakness and vulnerability when we need each other.  This is dignity, what it means to be human.  Here’s a link to a recetly posted youtube by Jean Vanier, of L’Arche Internationale, speaking to the English House of Lords, on why the strong need the weak.  I think it easily translates into why the healthy and living need the sick and dying.

Another big distinction between PAD and hospice and/or palliative care is the philosophical problem of distinguishing physician assisted dying from medical care.  That difficult distinction crops up throughout the bill with the challenge of identifying informed consent in a way that is a major departure from its history.  The Greek roots of the word “euthanasia” mean “easy death.”  There are different types of euthanasia, as described in this abstract from pubmed.gov and the moral dilemma presented by its practice is ancient.  Euthanasia is premised on the ending of life and may be voluntary or involuntary and active or passive.  Suffice it to say there is no bright line in this arena, only slippery slopes leading in both directions!

One of those slopes I find particularly troubling concerns the definition of “capable” in the bill.  This is defined in section 25-47-102(3) and it is overly broad.  We don’t have any context for this meaning of “capable” – capable to do what exactly?  This is the touchstone for capacity determinations in the field of estate and elder law.   Is this definition of “capable” for giving informed consent for health care purposes or something different?  I conclude it must be the latter, so the lack of a definition is a big problem.  Would a court need to determine someone “capable” to make a decision under this statute?  Under guardianship law, only those who have had a guardianship lifted are “adjudicated” as “capable.”  All adults, persons aged eighteen and older, are presumed by the law to have capacity.  “Capable” as used in this draft bill is too vague. Another part of the bill (the consulting physician confirmation of 25-47-106(1)(c) refers to this trifecta: requiring that the individual be capable, acting voluntarily and has made an informed decision.  I find this safety net here very interesting – what it is designed to protect against . . .  well that is not discussed anywhere, it is left unsaid.

The absence of any aspect of spirituality is telling – but there are those who think that leaving out the spiritual aspects and the soul-learning of the dying process are too hot not to handle.  See M. Scott Peck, “The Denial of the Soul: Spiritual and Medical Perspectives on Euthanasia and Mortality” (1997: Harmony Books) at 209.

Death is fearful, yet we carry our death within our lives.  Is the essential fear we are talking about in the PAD regime really a fear of loss of control, over our autonomy and the descent into helplessness?  I think in this respect it is a fear of life, life’s uncertain course that leads to our inevitable demise.  This fear of life is the adjunct of the fear of death.   Many of us maintain a certainty that our life is predictable and we can control things that happen to us, if we maintain that fantasy then most certainly are disease, disability and death an affront to our choice, an assault to our personal belief system and no longer simply part of life.  What if we were to do as Lau Tzu suggests – “take care with the end as you do with the beginning.”

I will close this first portion of the discussion of this proposed legislation with an insight from David Wendell Moller’s book “Life’s End: Technocratic Dying in an Age of Spiritual Yearning,) (2000:Baywood) at 159:

 . . . the sequestering of dying patients protects ordinary people from the terrorizing issue of death. . . . [the hospital’s] technological coordination of dying serves to submerge, deny and organize the dying process into professionally restricted categories which restrain the expression of personal pinings and fears for both providers and patients.”

It seems to me that the PAD bill serves to further the marginalization of the dying.  More about that in my next post.

©Barbara Cashman  2015   www.DenverElderLaw.org

 

People Die Every Day, It’s Perfectly Safe – Why Would I Need a Guide?!

Side view of Navajo Twins, Bluff Utah

Side view of Navajo Twins, Bluff Utah

This is a picture taken outside my favorite fry bread restaurant, in Bluff, Utah.  The Navajo Twins, the rock formation depicted (and name of the restaurant), is named for the hero monster-slayers from the Navajo creation story.   Their story has also to do with the coming of death.

Some of us question basic notions around things like life and death.  Others, well . . . not so much.  Historically, we have symbols, guides, talismans and other “companions” who have accompanied us on the journey from life to death.  Whether you view it as a dark path of mystery or simply as a “lights out” simplicity of sorts, death is the great unknown.  Some of us feel more comfortable with a guide or at least a worthy companion for the journey.

Who will help us along our journey, who or what will guide us along this unknown path, the strange terrain of transition that is so foreign to us and around which there is much anxiety and fear?  Is there some post-modern guide for our purposes here?  I have used several pictures from Rochester’s Mount Hope which depict angels, who are probably the most readily recognized psychopomps in our culture, even if they seem, for many of us, outdated.  The most recognizable psychopomp in literature is Virgil from Dante’s Inferno.  Virgil conducted Dante through the nine circles of hell.  Nowadays there are so few authorities recognized for such a role as psychopomp, there are many different names for such roles or services.  In many traditions, coyote is a psychopomp.

An online dictionary offers this concise definition: psy·cho·pomp, ˈsīkōˌpämp/ noun

  1. (in Greek mythology) a guide of souls to the place of the dead.
  1. the spiritual guide of a living person’s soul.

As indicated above, the origin of the term psychopomp derives from Greek mythology, and denotes a spiritual guide of souls, traditionally to the place of the dead, but often also as a guide at the threshold of other mysteries as well.  For the alchemists, this person was Hermes Trismegistus and for archetypal psychology is often expressed as the magician. [Here I am relying on Carol Pearson’s 1991 book “Awakening the Heroes Within, at 193-208.]   In Jungian psychology, the psychopomp is the mediator between the realms of the conscious and the unconscious.  Sometimes a simple question is asked of us and this changes everything, like a missing puzzle piece brought into one’s life, which is no longer merely an intellectual question.  I’m thinking of the question posed to Parsifal in his search for the grail, “whom does the grail serve?” which caused his lost soul to realize that his divine counterpart (the grail king) had been living within his castle all along.  This is, as Monika Wikman describes it in her 2004 book “Pregnant Darkness,” (at 182) is mystery that is brought to life, embodied and is the carrier of the connection between the human ego and the divine self.

Going back to the beginning of the beginning as it were, my favorite story is the tale of the journey of Inanna, the Sumerian goddess of heaven and earth, to visit her sister Ereshkigal, the goddess of the underworld.  Sylvia Brinton Perera’s 1981 book entitled “Descent to the Goddess” is a beautiful rendering of this path of transformation and a woman’s inner journey by a highly respected Jungian analyst.

Let’s face it, most of us don’t remember these stories about questions, transitions and guides, or we had no use for them, so have we simply managed to forget the psychopomp and why a culture would have found one useful in the first place.  Perhaps that is the case.  It is probably more likely that in addition to forgetting the purpose of such a guide, we have transformed the notion, the metaphor, to fit our modern and post-modern necessities.   So, enter the psychopomp of the extra-terrestrial!  We still venture to the land of imagination and fantasy, to the strange, mysterious and uncharted worlds.  The command of Star Trek’s Captain Kirk to engineer Scotty “beam me up” comes to mind.  But if the angels of yore have become outdated in the modern and post-modern expression of technology, then it strikes me that the extraterrestrials are our more fully mechanized and measured angels.  The psychopomp is after all a threshold conductor, not something that is out there but is part of a relationship we have (each of us has) with the unknown.  In our space exploration, aren’t we essentially looking for relationship, to help us inform ourselves further about who we are, in relationship to _X_ (the unknown)?  Our fascination with UFOs is also about our relationship with mystery and that sought-after psychopomp.

Maybe we are reaching a point of unbearable tension between the progress of technology and what it is for – read: the expansion of consciousness.  What is the name of this new place and what is the human role in it?  Is it fully mechanized, an objective reality apparent to everyone  . . . .  or is it something or someone that has soul? Well, I think the new place is the latter because I tend to side with the ancient Heraclitus on this turf, that all the world is merely a cover, a means of thinking about boundless soul.  This is one of the reasons I think it is particularly helpful that we have people like Megory Anderson, whose book published in 2001, Sacred Dying, explores the re-animation of embrace of rituals surrounding the end of life, dying, death and mourning.  When we can engage is a ritual that is meaningful to us, we can discover our intention to be present – to ourselves and to the dying and others present, in ways that connect us with ourselves and the other, as a balm for the rampant anxiety and alienation that is so commonplace in our end-of-life situations in our post-modern Western, north American culture.

©Barbara Cashman  2015   www.DenverElderLaw.org

Part II of Law and Culture’s Response to Death: Where Do We Put Our Dead?

centennial estate planning

Ketring Lake at Dusk

 

This is a continuation of my previous post about “where do we put our dead?” but I am in fact beginning at the end (depending on how you look at it of course!) with the aspect of dying and how this factors into our death denying culture.

In chapter 12 of The Hour of Our Death, entitled “Death Denied,” Philip Aries introduces the chapter with “the beginning of the lie” in which he draws upon ample support in literature for this new development and the beginning of the medicalization of death, which of course persists today.  Looking at Tolstoy’s Ivan Ilyich written in the 1880’s, Aries notes the similarity of the medical lie that cheats one out of one’s own death with an experience he recorded of a priest dying in 1973.  He notes next the progression of the denial into what can be considered many aspects of its present states – the developing and deepening “death taboo” as described by the Englishman Geoffrey Gorer in 1963 (Aries at 575); its emphasis on discreet funerals, a certain indecency of mourning; and as the unwillingness to speak about the inevitable deepens, there enters the triumph of medicalization – the ultimate in estrangement from and incapacity to reckon with one’s own death.

I’m thinking also of another work, this one by B. Hayslip, Jr. and C. Peveto, “Cultural Changes in Attitudes Toward Death, Dying and Bereavement,” (2005: Springer) in which the empowerment and disempowerment choice is presented squarely to the patient in the medical setting.  The question examined included three with widely varying responses, which were further broken down along ethnic/cultural affiliations among Americans.  Most of the respondents stated they would want to be informed by a doctor that they were dying, while fewer responded that it was as important for others, such as family members, to be informed.  The most interesting number was the very small – 4-7% of respondents who related that they had told another person they were dying.  Hayslip and Peveto at 7, 114-15.  Here there is more than ample evidence to let the medical establishment do the “heavy lifting” as it were, relating to communicating a person’s imminent demise.  Age and ethnicity play important roles in how a person, as a member of a community views illness, mortality, old age, dying and disposition of a body and the grieving process attendant to that.  Id. At 78-84.

So with the medicalization of death we have other factors, whether they are causal or correlative is a question for social scientists to research.  What was once a basic fear, as writers like Ernest Becker put it  – the fear of death – has now become complicated with the alienation attributed to the medicalization of the dying process and our estrangement from it as a natural process, as part of life.  The fear is complicated now by an unspeakable anxiety which makes the fear into something much bigger and more complex than it is.  Of course, the medicalization of death is not a factor in death denial in many more traditional cultures and there are important developments in our country relating to the backlash against all of the medical intervention (but then that is another topic!).  Bottom line for my purposes here is that the medicalization of death has contributed to our sense of powerlessness and alienation from our own death and the death of others.  You might of course observe that the sense of powerlessness over death has always been with our kind and I would of course agree, but the alienation and its particular form is both a modern and post-modern phenomenon which I find particular troubling and symptomatic of a greater loss.

Finally, I will take a look at the so-called “green alternative” to burial: cremation.  Both of my parents wished to be cremated and their cremains are inurned at Ft. Logan.  My challenge with cremation is that it seems to be a further extension of the alienation from death.  The body is dispatched to the funeral home or mortuary, which may or may not have its own crematory on site and if it doesn’t sends the body out to another facility for such purpose.  I am reminded of my late aunt’s comment “just cremate me,” which struck me as being similar to “just take out the trash.”  I loved my aunt and found the comment upsetting at the time, even if I didn’t have any qualms with her cremation following her death.  I can’t tell you how many clients I have talked to about cremation and the rather unique issues it raises that many folks have not previously considered during the past where burial at a particular location was the unstated choice for nearly all people.  What container will hold the ashes?  Where will they be kept?  Who will keep them?  What happens to them when something happens to the custodian of the cremains? While cremation affords many more choices than burial to answer these questions and uniquely express the deceased person’s wishes, more often these questions are never answered and people can get stuck with their ex-wife’s uncles remains. . . . !

I haven’t had the chance to watch this PBS series called Dying in America from 2004, but you can watch it here.  Crematory workers are not immune from graverobbing so to speak, a New Jersey funeral director was convicted of selling body parts, while a German crematory employee was allowed to keep the proceeds from some eight years of sifting through cremains for precious metals (to the tune of $800,00.00) because a court ruled that such property belonged to no one.

I guess the biggest issue I have with cremation is the anonymous disposal of the corpse.  The corpse is typically dispatched by strangers hired by the family and the operator of the incinerator is the sole witness to the final dissolution of the deceased person’s physical being.  Yes, it does hasten the ashes to ashes transition, but I have reservations about how the process is undertaken, as if the body as a container is deserving of very little respect.  I just did a search and found that there is a funeral pyre in Crestone, Colorado.  This makes the cremation a public event, as practiced by Buddhist and Hindus of today and a different choice for cremation.

So I’ll end this post with something a little more upbeat (perhaps).  Fresh off the internet . . . Here are the top ten “classic” (I read that as dinosaur) rock songs about death:

Keep Me in Your Heart by Warren Zevon.  I’ve previously posted a link to the youtube of this beautiful number, which Zevon wrote in the face of his own mortality (he had terminal cancer)

Knocking on Heaven’s Door (okay, I switched this fave of mine from another Dylan tune that was listed)

The Last Carnival by Bruce Springsteen (a tribute to two deceased members of the E Street Band)

The Wreck of the Edmund Fitzgerald by Gordon Lightfoot, a beautiful ballad that takes the listener back to a seemingly different time and a relationship which most of us don’t have with tragedy

The Show Must Go On –  by Queen. I watched this video of the meaningful song performed by frontman Freddie Mercury as he was growing progressively weaker with AIDS

Dancing with Mr. D – the Rolling Stones (drug overdose isn’t the only means mentioned)

In My Time of Dying – Led Zeppelin

Tears in Heaven by Eric Clapton

42 – by Coldplay . . .  okay, it’s not classic rock but it’s a band I really like and the number 42 happens to be, as revealed in The Hitchhiker’s Guide to the Universe, “the answer to life, the universe and everything.”

Don’t Fear the Reaper – Blue Oyster Cult (this was #1 on a list I found but I remember this from high school and all the vampire movies popular at that time, so it got demoted in my listing!)

©Barbara Cashman  2015   www.DenverElderLaw.org

 

Law’s Response to Death: Where Do We Put Our Dead and Where Do They Go?

denver elder law

Mount Hope Cemetery

After a couple weeks off from blogging I am back.  No, they weren’t actually planned that way, these things do happen and I do my best to regard these occurrences as kairos!  The word “cemetery” has many different meanings and connotations.  The online Merriam Webster refers to its origins as coming from the Middle English cimitery (derived the from Anglo-French cimiterie).  Its Latin origin is coemeterium and from the Greek koimētērion  meaning sleeping chamber, burial place, from the verb koiman to put to sleep. It traces the word’s first known use to the fifteenth century, but it seems natural that this word being based on the Anglo-French would have had an earlier iteration.  Cemetery is translated in German as Friedhof, a court or place of peace.

Cemeteries are a kind of public park, perhaps before many communities had such a thing (except perhaps for grazing cattle).  In this country, one source has named 1831 as the year the first cemetery was founded, with the  construction of Mount Auburn Cemetery in Cambridge Massachusetts.  I have featured another picture from Mount Hope in Rochester, New York, which was founded in 1838.  You might be wondering what larger European cities have done with all their dead.  Perhaps you have visited “the catacombs.”  A catacomb is simply an underground cemetery, a place for putting away human remains that was first built by the (ancient) Romans.   Of course there were Romans in Paris, which was then called Lutece.  Some of the more famous catacombs are those of Paris which are comprised of more than two hundred miles of tunnels, some lined floor to ceiling with bones and skulls.  Here’s a link to a cool picture of that along with some fascinating history of the bones of between six and seven million persons.  Compared to the elaborate cemeteries that are found in so many cities, catacombs seem to be a great “equalizer” in terms of the anonymity of the dead.  In addition to the underground catacombs in many European cities there are numerous ossuaries, rooms into which the bones of the dead are place.

So how did communities historically dispose of their dead?  In many parts of the world, this remains a mystery because there often doesn’t appear to be any historical record or evidence of of really old cemeteries or burial grounds that are identified as such.    Back to the title of this post – so how did we move from charnel hill to churchyard or memorial park?  What began perhaps as a memorial park in some communities might have been overtaken from the natural place of rest and continuity, of perpetual home to a display of ornate stone and limited and managed natural surroundings, all neat and tidy perhaps with nature and its processes seemingly kept at bay.

In addition to the public health aspects of managing the dead and the dying, their dispostion is now well-regulated in all of our states.  This includes the move from what were once private arrangements taken care of by family members to the consumer-driven service industry of providers of mortuary and funerary services.

Part of the legal protections surrounding the dead has evolved along with how we  think of and how memorialize the dead.  There are international law protections relating to corpses which grew out of international law as reflected by our long history of warfare between nations and of course civil wars.   The legal status of a corpse is in most respects as that of property, but there are important distinctions to be made.  Here is a link to a 1997 article in the Whittier Law Review about necrophilia.  Jeffrey Dahmer is the most infamous modern sufferer from necrophilia.  Such laws relating to corpses, to the extent they exist and are enforced, uphold our moral compass and social respect for the dead and our treatment of the dead with dignity and respect.  Desecrating, plowing over or covering up graves is a criminal offense.  Hate crimes are often extended to a victim’s grave, often targeted for the victim’s race or religious affiliation.

Concerning the cemetery, many factors came together in different ways across cultures to allow for the placement of the dead within the community.  Perhaps in many ways cemeteries are places where the dead can be “kept” so as not to be free to wander about and disturb the living.  The final resting place should be one that is afforded respect so that there is no need for the dead to disturb the living.  It is essentially a segregation between the living and the dead.  In many religions there is the idea that the living and the dead will be reunited – I’m thinking about Mircea Eliade’s reference to the Lakota ghost dance in Death, Afterlife and Eschatology (1967: Harper & Row) at 85.  And lest we forget for those religions which have a messiah, the significance of the sealing of the Golden Gate in Jerusalem by the Ottoman Sultan Suleiman the Magnificent in 1541, in which it is said the Ottomans constructed a cemetery outside it so as to prevent the entrance of the Messiah.

So back to the cemetery and the angel depicted above.  In his work tracing the attitudinal changes of the western tradition’s approach to death and dying, Philip Aries describes in The Hour of Our Death (1981: Knopf) at chapter ten, entitled “The Age of the Beautiful Death,” a release from suffering and an end to toil at the end of a life.  In this chapter which has numerous references to literature of the period, including letters and journals from a French family, the writings of the Bronte sisters, the rise of spiritualism and other cultural phenomena from the 18th through the early part of the 19th century.  I will be continuing this post soon.

So, I couldn’t pass up this opportunity for a YouTube serenade, this one with Saint-Saens’ Danse Macabre . . . (Opus 40, first performed in 1875).

©Barbara Cashman  2014   www.DenverElderLaw.org