Yours, Mine, Ours and Theirs Part 2: Opening the Conversation

Spring Flowers

Spring Flowers

This article from last June in The Huffington Post cites a Pew Research Center number from 2011 which states that a whopping 42% of American adults have a step relationship – as in step-parent, step- or half-sibling, or step-child.  I suspect the numbers have risen since that study….

It is not surprising that with the large number of remarriages involving children from a prior relationship, some of the basic priorities in estate planning can be much more fluid and complex.  In the title of this series I have added “theirs” at the end of “yours, mine and ours” – and this is for the simple reason that, in my experience, many spouses in a blended family relationship wish to preserve for their own descendants a certain portion of their estate.  In my experience with blended family estate planning, many spouses in blended family later life relationships consider their children’s inheritance as something separate in a way that few people married only to each other and with common children have ever done.  So let’s begin with identifying some of the terrain we will cover.

The Questions. . . .

What are the common goals that both spouses have in mind?

First off is the obvious question – how to provide for your adult children while taking care of your surviving spouse?  Considering things like life insurance, retirement benefits and other available resources can be immensely helpful, particularly when these resources are coordinated in such a way as to meet the common identified goals.  Since I represent primarily older adults with grown children, I won’t be looking at the second family and providing for them along with a spouse as well as from a first marriage?  How do we balance providing for children with providing for the surviving spouse?  Well, I must repeat that lawyer mantra here: it depends.  The fact is – there is no template for the values, choices, or goals of spouses in a blended family and how they provide for their respective children.  Yes, life is getting more complicated all the time it seems, but I would submit that with the exploration of some basic information, many otherwise inevitable conflicts can be avoided or at least minimized!  This is why it is so important to identify these questions that can loom large and cause much anxiety.

The Nature of Potential Conflict . . .

When a couple can identify the goals and values of their planning, developing a strategy for meeting them can become a bit simpler (note – I did not say easy – there is a huge difference between simple and easy!).  Identifying the source of conflict that can arise, which can threaten those values and goas the couple has identified, is a simple but powerful way of bringing more daylight into the conversation.  Talking about personality conflicts, communication styles and how to allocate scarce resources – be they common or separate resources, can have a positive impact on the planning process.  If this all sounds like a bit too much, I would submit that this groundwork laying is imperative and indeed makes for going early on in the process.  Perhaps you are familiar with the expression to go slow at the beginning to go fast later.  Reminds me of a favorite Ella Fitzgerald song!

The Varying Styles of Conflict Among People . . .

Important to consider here are some of the stumbling blocks that many of us place in front of this conversation, as well as those which may arise and otherwise derail a constructive and wanted conversation on this topic.  What I am talking about here is how each of us deals with conflict in terms of how we communicate in the midst of conflict.  There are five basic conflict communication styles:

  • Confrontation
  • Accommodation
  • Compromise
  • Conciliation
  • Avoidance

Many of us do not exclusively rely on a single style here, and that is a good thing!  What the conflict styles can teach us – and how this conversation can enrich and deepen a relationship among spouses – is about values (the first item I wrote about above) and how they shape who we are and how we behave.   Our perceptions and assumptions about who we are, who our spouse is and how the children of the blended family are included in the planning (either directly or indirectly) can be valuable ways to explore the depth of a relationship and chart a course through otherwise troubled waters.

I’m not saying that a plan is going to be 100% foolproof – I would not say that because everything is subject to change.  What I’m saying is that it is better to talk about the elephant in the room, to identify its function for shedding light on our goals and values of the spousal and family relationships we have.

More to come!

© 2016 Barbara Cashman  www.DenverElderLaw.org

More About Proposed Colorado End of Life Options Act

Italian Arch

Italian Arch

 

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

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

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

Why is this a big deal?

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

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

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

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

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

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

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

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

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

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

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

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

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

Another post about caregiving and living arrangements

Santa Fe sculpture

Santa Fe sculpture

In looking once again at aging in place, let’s look at whether you really need to know what a NORC is and how it is different from a CCRC.

Conventional wisdom dictates that most of us would want to stay where we are as we grow older, but this isn’t always the case.  It depends on the person’s unique circumstances.  Some of these factors include:

The kind of home or condo you own – does it require lots of maintenance and have stairs or other factors that require lots of physical attention?

Is it necessary to drive a car to get groceries, visit friends, or get to social activities, or can you carpool or use public transportation?

Many people don’t think about the social isolation factor of staying in their own familiar home, but if an elder doesn’t have friends or neighbors nearby that can check in on them, elders can become isolated in a solitary and repetitive routine that can be deleterious to their emotional and mental health!

Refining the balance of social engagement and doing your own thing is something that is often required for successful aging in place.  Change is the only constant, but many of us will voice concerns about maintaining our “independence” at all costs.  With so many baby boomers reaching elderhood now, it will be interesting to see the myriad and innovative ways that boomers meet this challenge.  Apart from their huge number, boomers have a relatively high proportion of divorce and remarriage (blended families) as well as co-habitation.  There really is no “norm” for the boomers in this regard!

I think the best advice for folks nearing retirement and hoping to age in place and otherwise stay put is to consider all relevant options and to make a plan.  I particularly like the Dwight Eisenhower quote in this context:

In preparing for battle I have always found that plans are useless, but planning is indispensable.
In my line of work, I find that people often think that sticking to a plan (or more likely, just some fixed idea about how things would turn out) is the most important thing.  As if life were something we could plan and force execution of the plan!  We are so checklist and task-obsessed in our busy world, we tend to forget that the planning process is the both the end as well as the means – not the fashioning of a solid plan which often must be adjusted and sometimes jettisoned.  This is one of the reasons I often refer to the work I do for clients as helping them identify a strategy.

If you want to think about this aging-in-place notion a bit more, here’s a post from Fidelity about success factors to consider in staying put as you grow older.

One of the factors that can help elders age in place is staying put in a place, a community, a neighborhood, that has plenty of supportive services which many elders will need as they age.  Enter the NORC, the naturally occurring retirement community!

The NORC, yes it’s legit, it’s in Wikipedia!  NORCs have been broadly defined as communities where individuals or couples either remain in or move to when they retire.

Of course what is “natural” in the naturally occurring retirement community is a rather broad and generous concept.  This could be as simple as an apartment complex for elders, a housing development or a neighborhood.  As to the neighborhood concept, this has been well-developed by the NORC Aging in Place Initiative, which is a program of the Jewish Federations of North America.  The full name of the initiative is the NORC-SSP, “SSP” being short for supportive services program, which considers the social services appropriate and necessary to foster independent living for elders.

Some of the important factors include financial considerations, which vary widely among those already retired the “semi-retired” and those still years away.  People are generally working longer, and this is probably a good thing for the majority of people, but some have no choice in the matter.

In my last post, I looked at the importance of having this conversation about aging and caregiving arrangements before there is any crisis.  I often work with people (and their loved ones) who suffer from progressive diseases which practically demand such conversations – those with multiple sclerosis, Parkinson’s disease, ALS, as well as other neurodegenerative conditions which have both a physical and cognitive or mental health component.  Some of these folks will do the planning and have the financial ability to choose a continuing care retirement community (CCRC) which is also a kind of NORC.

As I am often reminded. . . . Aging is not for sissies!  It is, of course, best done with a plan including effective durable powers of attorney and other means to choose in the event of incapacity.

I’ll close with a quote from Ralph Waldo Emerson, who reminds us that human growth is always a possibility, no matter where we find ourselves:

Always do what you are afraid to do.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

 

Autopoiesis in Language and Meaning

Mes Belle Ondines

Mes Belles Ondines

 

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

Planetary physiology is the autopoiesis of the cell writ large.

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

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

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

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

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

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

      Creation is nothing that came to be.

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

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

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

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

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

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

©Barbara Cashman  2015   www.DenverElderLaw.org

The Continuing Adventures of the Psychopomp: Grief As Psychopomp

Natural Beauty

Natural Beauty

This post is dedicated to my dear cousin, who recently lost his beloved wife of forty years.

Yes, this is another installment in my series, but it wasn’t quite planned that way. . . .   After traveling to the funeral out of town, I thought more about this psychopomp topic and thought about the other side of death, what the mourners, those grieving face in going on without their loved one.  Life as they know it, as my cousin recently observed “is over.” What then remains is a future that requires the survivors to reimagine their lives, the mourners must now construct their lives without the active participation of the one they love.  Here it strikes me that grief is also a doorway, a threshold and . . . .a psychopomp in some form because it will take us to that new world, often an unimagined life.  Here is where the grief, the being and doing of it – ready or not! – does transport us to a new and unfamiliar terrain of our lives, a new way of living.

Whether we believe in an afterlife is often beside the point for many of us – grief invites us to feel and to be with it and to imagine what our life could or might look like without that person because, while we are imagining, we can’t believe or disbelieve. It strikes me that the loss, the sense of shock that often accompanies a death of a loved one that often causes a sense that things are not quite real or even surreal, occurs in both the event itself as well as our reaction to it.

So grief too, is often itself a kind of death, a death of the known and familiar existence, a death of identity relative to the loved one.  I wonder – might this prepare us (the survivors, the mourners) somehow also for our own eventual demise?   This makes me think of some of the emotional responses to grieving, the activity of grieving and how we feel it in our bodies.  Is grief capable in some way of turning us inside out?  The death of the loved one causes some kind of corresponding death in us as well.  We simply cannot go on as before.  But what was the life before, and how did we think of it and experience it?   I think of Tom Cheetham’s book: All the World an Icon: Henry Corbin and the Angelic Function of Beings (North Atlantic: 2012) and his observation:

  When we can give up a life lived in pursuit of “objective Truth,” then the world fills out, comes alive and comes toward us in its freedom . . . “interiorization” is . . .  a matter of entering, passing into the interior and, in passing into the interior of finding oneself, paradoxically outside. . . “ 

Cheetham at 185.

The movement here of grief, away from life as it was previously known (I don’t think it’s a huge stretch to liken it to the “objective Truth” reference above), can be precipitated by the “inside-out” or “upside-down” feeling of the lives after profound loss.  In addition, our lives may have an aspect of feeling that is immanent or transcendent, and perhaps both at different times.  I will contrast them here:

          Immanent – is defined as being within the limits of possible knowledge, inherent, remaining within; and

          Transcendent – going beyond the limits of ordinary experience, greater than what is usual.

We typically focus on the transcendent here, as in the moving beyond, toward considering the possibility – because we are left with no real alternative – that the deceased is gone but there is still meaning in their existence, that there is some felt meaning beyond us in our physical presence.

Here, the invitation, the movement into grief can be a means of poiesis.  Poiesis means “to make” in ancient Greek.  This kind of work reconciles our imaginal activity (outside of belief, it is by nature supra-rational) with the stuff and matter of our existence, and this is done within the construct of time.  And yes, I could go off on a tangent about poiesis, but I will resist the temptation.  This kind of work, it strikes me, is a destruction of the idol of time (akin to that “objective Truth” mentioned above) as we knew it, a life as we expected it to be.  I have previously referred to the work of Massimo Cacciari, the Italian philosopher and politician who wrote:

       The greatest idolatry is the cult of the has-been, of the irredeemable it-was.  Against it, the

living raise their cry-song to the Living.  Only at this point – in the moment of song – can they truly

call themselves living; prior to this they were a succession of moments destined to death, born to die.

The Necessary Angel, at 51 (SUNY Press: 1994)(M. Vatter, transl.)

Cacciari was not writing about grief in that quote, but it struck me that in his term “chronolatry” there is the possibility of grief, of grieving for what was and never will be again, which is also that which allows us to fully feel the present and its fullness or emptiness  – whether we want to feel it, or not.  And so, the “idol” or fixed idea of the life that was known, that was lived with the person now deceased, is not broken or destroyed but rather it is transcended to a new meaning, a bigger one necessitated by that deceased person no longer actively participating (or seeming to participate) in the mourner’s life.  I am not saying that this is what grief is, while I find all the writings about grief very helpful in many respects, I also find them constraining and unhelpful to the extent they attempt to identify some “grief process” which all of us must “go through” in order to come out the other side or to get on with our lives.  Grief is simply too big to be left to the psychologists alone to develop such a typology or taxonomy!

Grief as a psychopomp here is a threshold, an invitation to cross over from that life that was – the idol that is only a physical shell, to arrive at an icon that invites a re-imagining of new life with a bigger (or smaller) meaning, which is often one that moves into the meaning of transcending.  Beyond the shell of the idol, the icon glows with possibility, it represent a threshold where the can be an unfolding into the future.  Grief here, is the invitation, the psychopomp that is uninvited and unfamiliar – yet the one who cannot be ignored.  What is left is somehow beyond our reach, but imaginable and comes to us, moves toward us even in the depth of our despair.

 ©Barbara Cashman  2015   www.DenverElderLaw.org