World Elder Abuse Awareness Day – June 15, 2016

Samurai Mask

Samurai Mask

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

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

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

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

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

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

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

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

That’s all for now.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

May is Elder Law Month!

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.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

 

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

Not quite empty nests!

Not quite empty nests!

 

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

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

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

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

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

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

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

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

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

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

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

___________________________________

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

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

Yours, Mine, Ours and Theirs: Estate Planning Challenges for Blended Families

denver elder law

Square in Assisi

 

This is the first of a series I will be writing about the modern challenge of estate planning for the “blended family” – with a particular focus on couples with adult children.  Today’s post will serve as an introduction and overview.

Yes, the days of the “Leave it to Beaver” style family are long gone.  So what has replaced it as the norm?  Well, not much of a norm at all really, which is why so many people pine for the good old days when things were so much simpler!   Let’s face it, we’re living longer and many of us are choosing to be married or coupled for love and not for life and many baby boomers have chosen different routes for their life partnerships than our parents.  There is simply no template or norm for these couples and their families looking into longevity planning, caregiving arrangements or estate planning priorities when it comes to the modern blended family.  This basic fact makes the whole effort just that much more daunting for most of us – but if we break it down into a conversation that has a beginning and a “to do” list based on the priorities identified in that conversation, efforts can be greatly simplified just by virtue of talking about the obvious, the gorilla in the room that demands our attention (or else).

The impetus for this series of blog posts began with a suggestion by one of my colleagues who organizes the Jefferson County Senior Law Day, at which I have spoken about durable powers of attorney and conservatorships for the last few years.  At this year’s event, scheduled for Saturday, June 4th, I have agreed to take on a new topic – on the challenges of longevity and estate planning in the context of the blended family.  (And yes, it’s the same weekend as the Larimer Square Chalk Art Festival.  I’m happy to be sponsoring the square by my artist cousin, Martin Calomino. . . .  I’m sure I’ll be posting some of the pictures from that festival to adorn my blog posts!)

I’ve posted on this general topic before, but I’m going to be looking into this in a much more in-depth manner.  I have looked into some internet resources for blended families with adult step-children.  I was surprised to find a number of good articles.  This article talks about the importance of identifying expectations when adult step children are part of a blended family.  When I work with a couple who have a “blended family” – there is a wide range of possibilities along the scale of what is considered blended.  Sometimes there are common family events in which the is frequent, regular or expected interaction among the adult step-siblings, while other times these opportunities to interact are few and far between.  Here is an article with some practical ideas about what a newly married couple did to ensure that the four adult children (two from both husband and wife) had the opportunity to feel like they were welcome in their parent’s home and included in family activities.  Here’s an interview style article that looks at a rocky start to a closely-knit blended family.

So, what exactly am I going to be writing about in this topical series of posts?

Here’s an overview of my next post:

Identifying Some of the Challenges for the Blended Family- including (1) what are the assumptions that govern a couple’s thinking about their relationship relative to the relationship with their children;  (2) the dangers of pretending that there is no potential for conflict; (3) starting up the conversation about the difficult questions and talking constructively about what will happen if and what will happen when; (4) getting familiar with what the challenges of longevity mean for couples in a blended family; and (5) the importance of estate planning to minimize conflict among members of a blended family.

In later posts, I will be looking at the different ways those challenges of getting started with the conversation and identifying values and priorities can be effectively met.  Rest assured, this is seldom a “once and for all” kind of arrangement – the importance of paying attention to changes in our lives and making the necessary adjustments cannot be overemphasized.  To that end, I will be looking at estate planning – both chosen and inadvertent, in the context of the freedom of testation (writing a will) and freedom from testation (the “plan” that most people choose, which means doing nothing and facing the consequences of the law of intestacy of your state of residency).  I will also be looking at identifying different kinds of property, both testate and intestate as well – in order to come up with a cohesive “big picture” estate plan.  And I will be revisiting the marital agreement and the usefulness of such an agreement to spell out many important details of a couple’s estate plan.

That’s all for now. . .

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

Vulnerable Elders and the Slayer Statute

Italian Stone Face

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. . .

© 2016 Barbara Cashman  www.DenverElderLaw.org

Digital Assets – Coming Soon to a State Near You!

denver elder law

Cutout Constellation

 

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

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

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

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

  1. Specify and distinguish between assets and access

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

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

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

  1. Recognize and give priority where applicable to “online tools”

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

  1. Things are continually evolving!

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

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

© Barbara E. Cashman 2016   www.DenverElderLaw.org

The Colorado bill on Personal Rights of Protected Persons

Late Summer Blooms

Late Summer Blooms

 

Here’s another article about a bill making its way through the Colorado legislature.  If the title sounds obscure, it’s because it’s designed to address a rather tragic situation which infrequently occurs but has terrible repercussions.  A “protected person” in this context is a person known as a ward in a guardianship proceeding, one who is incapacitated and who has a guardian appointed to make decisions on the protected person’s behalf because they are unable to make decisions and otherwise manage their own affairs.

Here’s a link to the bill, SB 16-026.  The bill is more popularly known as the “Peter Falk” bill because it concerns the late actor’s daughter, Catherine Falk, and her efforts to promote legislation that would make it easier for children of protected persons (like those under a guardianship) to challenge the monopolization or limitation by a guardian upon access to the protected person by the protected person’s family members.  The tragic scenario in the Peter Falk case was that Peter Falk suffered from dementia in his final years and his wife, Catherine Falk’s stepmother, was estranged from Peter Falk’s daughter.  Falk’s wife prevented Falk’s daughter from visiting her father and so she took her battle – an expensive one – to court in California.  Catherine Falk later organized her own effort to ensure that this type of scenario would not happen again, not just in the state where her father resided, but she made it a nationwide effort.  Visit her website here, which shows the ten states whose legislatures are currently considering the legislation.

If you think this kind of scenario would only play out for a celebrity, well . . .  think again! A large proportion of us, particularly us baby boomers, are in second marriages or otherwise part of a blended family – with all of its particular and unique personal dynamics.  According to this study by the Pew Center, remarriage is on the rise for Americans aged 55 and older.

I do estate planning for many blended families.  While many of the shrinking number of “Ward and June Cleaver” families (long marriage, children in common) would not consider this type of scenario to be likely to occur, as the baby boomers and our core complicated familial arrangements get on in years and continue to change, the Peter Falk bill presents an opportunity to curb restrictions which a guardian may place on who may visit and interact with “their ward.”  I have a hunch that more of us in my line of work are likely to encounter this difficult and sad scenario.

As we continue to live longer and grapple with more encroachments on our capacity – in the form of dementia and other physical, cognitive and psychological challenges, we will likely confront these difficult issues more frequently.  The debate about limitations on guardianships – of rights retained by an incapacitated ward, as well as the limitations on the authority of the guardian – are difficult issues with which people and courts must certainly grapple.

I will close with an observation from a favorite poet.

The great secret of death, and perhaps its deepest connection with us is this:

In taking from us a being we have loved and venerated,

death does not wound us without, at the same time, lifting us

toward a more perfect understanding of this being and of ourselves.

—Rainer Maria Rilke, Letter to Countess Margot Sizzo-Noris-Crouty, January 23, 1924

©Barbara Cashman  2015   www.DenverElderLaw.org

Elderhood and Winter As Life Stages

 

Siennese Waters

Siennese Waters

I would like to wish everyone a Happy New Year.  Instead of another post written by me, I am simply closing this last post of 2015 year with a quote from the nineteenth century Scottish author and poet George Macdonald, from his book Adela Cathcart:

The winter is the childhood of the year….It is as if God
spoke to each of us according to our need: My son, my
daughter, you are growing old and cunning; you must grow a
child again, with my son, this blessed birthtime.  You are
growing old and selfish; you must become a child. You
growing old and careful; you must become a child. You
growing old and distrustful; you must become a child.
are growing old and petty, and weak, and foolish; you
become a child – my child…

May this quote, this observation of the season, assist each of us in focusing on and appreciating  our inward state of affairs, and not just the easily recognizable outward, external and material world.

© Barbara E. Cashman 2015   www.DenverElderLaw.org

 

 

Aging, Language and Autopoiesis

Cute Halloween Picture

Cute Halloween Picture

 

I was thinking about elderhood and language, how we think of aging and the words we give it and the life that is continually created as we age and those around us age.  By using the term language, I mean both the structure or system of language as well as the content and substance of the communication,   as well as a means of conveying content and substance.  Of course I should define that last term, autopoiesis – It’s not a commonly used word after all:

the property of a living system (such as a bacterial cell or a multicellular organism) that allows it to maintain and renew itself by regulating its composition and conserving its boundaries. The notion of autopoiesis is at the core of a shift in perspective about biological phenomena: it expresses that the mechanisms of self-production are the key to understand both the diversity and the uniqueness of the living. — Francisco J. Varela, in Self-Organizing Systems: An Interdisciplinary Approach, 1981

From Merriam Webster online.

In essence, autopoiesis is what makes aging and elderhood possible – not just from a biological standpoint (Francisco Varela started there but took the notion well beyond it), but also from a perspective of presence in the world, of consciousness.  The “production” of our living with autopoiesis  is the ever present process of life here – of creation and destruction, unity and dissolution, death and birth, and of change.  I think of a quote from Heraclitus: The sun is new each day.  Contrast that with the oft-quoted: There is nothing new under the sun.  The latter is from the book of Ecclesiastes.  They seem to be polar opposite in expression, but of course they are not if we look at what they describe as a process of change that is endless.

So back to autopoiesis – our growth, our production of our presence depends in no small part on the absence of something, the clearing away through disappearance and decay.  That may be the source of our longing, our searching for that which we lack, which is what keeps many of us moving in this world.  That seeking can be uncomfortable and cause us to feel lonely.  Rabbi Abraham Heschel observed in his book God in Search of Man:

Day after day a question goes up desperately in our minds: are we alone in the wilderness of the self, alone in the silent universe, of which we are a part, and in which we feel at the same time like strangers?  It is such a situation that makes us ready to search for a voice of God.

So that sense of missing something, our aloneness, the absence required by the autopoiesis is something that seems to haunt us!  (Hence the Halloween theme, I suppose!) We often insist that we be able to identify, name, classify and therefore predict this system of life, which includes our own on a cellular level as well as the system of life on our planet and presumably beyond.  But this predicting from our familiarity with the system is inherently unpredictable.  This autopoiesis has, as Bruce Clarke has noted, “a multifarious cultural history, itinerant discursive career and contrarian stance,” thus making it applicable to the context here. . . .

We may experience autopoiesis and not really be cognizant of it in any meaningful way, and this is perhaps one of the ways in which we fail to see the connections between us, as people, as living beings in a larger biological system or environment.  Do we see this aliveness beyond ourselves or do we dismiss or limit it, denying it because it is beyond us, beyond some boundary of who we think we are in terms of our experience or thinking process.

Okay, you might be wondering where I’m going with this autopoiesis notion and aging – but it is clear to me that the ability to recollect, to reflect on one’s life experiences and to create and recreate meaning, is an immensely important function of elderhood.  This is what is known as gerotranscendence, the empirically based theory of psychology which suggests that aging, elderhood, offers a generative aspect of creating new meaning and purpose in life as we age.  It is nothing new under the sun but rather a “re-enchantment with aging,” a huge step in our death-denying, youth obsessed culture.  I’ll finish this post next time, so please stay tuned.

©Barbara Cashman  2015   www.DenverElderLaw.org

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