conflict and end of life Archives - The Law Office of Barbara E. Cashman

Yours, Mine, Ours and Theirs: Some Practical Questions to Get Started

Date June 1, 2016

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Southern Colorado Springtime

So this is part five of my series and just in time for next Saturday’s Jefferson County Senior Law Day (June 4, 2016)! I took a couple weeks off for a vacation, but I’m back now. Here’s a link to a bit more information about this year’s program which will again be held at Colorado Christian University in Lakewood. I don’t yet have a link to the 2016 Senior Law Handbook, but will provide it when it becomes available.

For the last couple years of Senior Law Day, I have presented on financial powers of attorney and conservatorships, but this year I was approached about presenting on a new and different topic, hence the title of the “Yours, Mine, Ours and Theirs” presentation – which will be its first time out. I don’t know how many people will show up for my presentation, because the title is purposely short. . . I’ll be presenting it at 11:30 and will have informational flyers available for attendees.

So here’s an overview along with some of the questions that folks “re-coupling” in later life might want to ask themselves and discuss with each other. This discussion, a most necessary and valuable conversation when had at a time that is planned – and not in the midst of a crisis or emergency, can clarify expectations and prevent conflict in a number of important ways by managing expectations. So, let’s look at where we find ourselves. . . .

Remarriage or Re-Coupling After Widowhood

I use the term “re-coupling” to encompass marital, non-marital (living together), and other types of relationships which people forge with their partner or other dear ones. Just as a bit of a refresher, while the “yours, mine and ours” may seem fairly straightforward, figuring out which property will be maintained or held separately and how joint property will be titled and maintained, particularly in the event of disability and death, is usually a bit of a challenge. Remember that I have added “Theirs” at the end of the title to reflect the fact that many of us in these re-couplings have children from previous relationships. In my experience with estate planning for blended families or later life re-marriages, there is often a strong desire to address and adequately or equitably provide for adult children of the respective spouses or partners. In some cases, spouses will leave everything to the survivor of the two, with the option for the survivor to leave something or nothing to that first to die spouse’s children. Others, including those re-coupled spouses who were previously widowed, may feel that their children should inherit at least some portion of their (the remarried widowed spouse’s) estate after the re-coupled spouse passes away because some portion of that estate may have been accumulated by the adult child’s first-to-die other parent. It is not uncommon for a re-coupled spouse or partner to feel that their adult child(ren) ought to have a stake in their inheritance. This expectation is often expressed by the child(ren) as well.

Many of these couples, particularly those who are already receiving retirement benefits when the re-coupling occurs, must carefully consider the impact (sometimes an adverse financial impact) that marriage has on the benefits received as a result of being widowed. For this reason, some older couples may choose to have a non-marital or living together agreement in place, so that these matters are more clearly elucidated.

Remarriage or Re-coupling After Divorce

Remarriage after divorce presents its own financial challenges as the number of baby boomers (many of whom were in long-term marriages of twenty or thirty years) divorcing has been on the rise. There may be a splitting of retirement benefits (as in a qualified domestic relations order – QDRO) or other splitting up of retirement assets of a qualified or nonqualified nature.

Remarriage or Re-coupling and Disability Planning

Yes, this is the other “d” which is very important and should not be overlooked! While death is an uncertain certainty, whether we will suffer some form of disability – physical, cognitive, psychological – is a certain uncertainty. In my opinion, re-coupled folks or remarried spouses need to have these questions sorted out more clearly than those who are single or only married once. Why? The best way to minimize the potential for conflict in the event of a health crisis is to make a plan which identifies key people and describes their roles, such as:

Who will be the health care agent or proxy decision maker?
How will the spouse or partner be empowered to make health care decisions?
How will the adult child or children of a disabled or incapacitated parent be empowered to make health care decisions?
What will be the process for communication between all the persons involved?

Another question deserves its own paragraph, but I will simply mention the question here – have you examined your expectations around care and caregiving for your spouse or partner? Alright, this post is getting a bit long-winded here, so I will wrap up with just a few more questions, which I will no doubt be putting into that flyer for Senior Law Day.

Have you both considered the level of financial stress relative to the longevity (actual and potential) of your relationship? I will close with a few bullet points to ponder:

What do you need to know about your own and your partner’s finances before you tie the knot or otherwise intertwine your finances?

How much debt do you have? What kind is it (credit card, car loan, other)?
How will we handle financial or other interventions or assistance for an adult child?
What do you earn now and what will you have as income sources for retirement (pensions, 401(k), IRA, Social Security, etc.)?
How will you and your partner share or split expenses?
Do you and your partner have compatible financial values and goals?
Would you consider a marital agreement, written plan or a will (or will substitute) to provide more clarity about rights, expectations and so on in the event of disability and eventual death?

I am looking forward to presenting on this topic of “Yours, Mine, Ours and Theirs” which is a most interesting topic to me, based on the experience that each blended family or recoupled relationship is utterly unique.

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

Date March 30, 2016

Posted by Barb Cashman

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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 4^th, 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. . .

Denial of Aging and Death as Source of Conflict

Date October 8, 2014

Posted by Barb Cashman

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Centranthus or Jupiter’s Beard

Autumn here in the Denver metropolitan area is beautiful. Some of our trees’ leaves have started turning while others have not. The apple tree in my backyard is producing many fine apples, which I am happy to eat. Her leaves are just starting to curl a bit. The late tomato harvest is petering out as the nights get colder. In between the two posts on the “time out of mind” theme I wanted to write about conflict and denial. I haven’t written about this in a while and since October is Conflict Resolution Month, I thought the time was right! I like the language from the Colorado Senate’s Joint Resolution (13-017) on this topic:

WHEREAS, These conflict resolution processes [mediation, arbitration, facilitation, etc.] empower individuals, families, communities, organizations, and businesses to foster communication and devise solutions that are acceptable and responsive to the needs and interests of all parties involved; and

WHEREAS, Conflict resolution is taught and practiced by citizens in many school systems, universities, and graduate programs throughout Colorado and the world as a way of solving disputes; and

WHEREAS, Community-based programs work to strengthen local relationships by fairly and equitably resolving neighborhood and community conflicts and opening community dialogues based in reason and mutual respect;

So you might be wondering what conflict resolution month has to do with fall, the inevitable changes in our lives and. . . . denial? Each of us deals with change and resulting conflict differently and our “conflict style” is often a pattern of responses of types of behaviors that we use in conflict-laden situations. We often hone these skills in our family or sibling relationships. How we manage our concern about conflict and how much we look at it a particular conflict as a “mine, yours or ours” type of situation greatly informs our response and participation in managing and resolving a conflict. This is particularly so in the elder law context, in which there is often a challenge (usually a constellation of them) and difficulties presented when an elder begins to slow down or fail physically or mentally. How family members and loved ones respond to those changes has a huge impact on an elder’s well-being.

The contemporary view of conflict styles lists five basic styles:

Avoidance (a/k/a denial)

Accommodation

Compromise

Competition

Collaboration

If you have already observed that these styles are a bit of a continuum, you are astute. The most active and engaged styles are the last two – competition and collaboration, while the least engaged are the first two – avoidance and accommodation. The whole idea of Conflict Resolution Month is to get people to think outside their comfort zone as it relates to conflict resolution, to educate people about the array of alternatives available to assist. This can begin early – for several years I volunteered with The Conflict Center’s Peace Day programs in area elementary schools. Many of us don’t otherwise learn these useful skills or get to see this modeled in our daily lives, let alone practice them with our peers.

In the interest of brevity, I will finish this post with a poem from a poet friend in New York who was a participant with me at a retreat last month. Sometimes the most important thing about “owning” a conflict is to recognize how our lives would look without the existence of conflict. This is often very difficult to consider – especially in the context of family relationships, sibling rivalries and unbalanced power dynamics. This poem I just received from Richard, entitled “Yellow Birds” is about birds, space and the beautiful world we share. So please read on.

Yellow birds, flocked to the earth,

fluttering to light, leaving to the air

her emptiness, as wind gives you leave

to land, brothers and sisters singing,

to the great green reception,

your welcome home.

Great space brings such joy, the

opening of the thick and heavy, the

beauty whose richness obscured, now

cleared—outbreath of the inbreath—to

breathe in without restriction, with

the freedom of the letting go.

So our angel unfurls her wings,

exultant in the wild air, beating as

breathing, lifting into the morning light—

soaring as walking, wide and wild, our

arms swinging, above and below

joined, one body beloved.

So I pick my way through the

Garden paths, past empty vines, under

the frosted purple grapes, hearing the

hawk’s cry, seeing his wings soar,

knowing as my feet trod every color’s

leaves, here I am in heaven.

By Richard Wehrman (with gracious permission from the author)

That’s all for now. . . enjoy the fall, the ripening of grapes and the stillness it all can bring.

Dementia and Memory: Out of Time, Out of Mind I

Date October 1, 2014

Posted by Barb Cashman

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Mount Hope Cemetery, Rochester NY

So I’m back to that rather slippery theme of memory again – this is the first of two parts. The online Merriam-Webster defines memory as: (1) the power or process of remembering what has been learned; (2) something that is remembered; and (3) the things learned and kept in the mind. This all sounds very quantitative and linear to me, right in line with most conventional thinking about memory as factual recall, that forensic memory which is objectively measurable. I think the definition of memoria from the ancient Greeks is more useful and inclusive of the human experience. Conveniently, it also encompasses the non-chronological aspect of time about which I’ve written before – kairos. We modern Americans come to think of memory in some fairly odd contexts, like computer memory and we often liken what’s in our heads to our personal hard drive as if it were some kind of data storage system – which it is of course in a very narrow sense. This also accounts for much of our recent “de-mentation” or offloading many of the factual details of our daily lives like calendars, phone numbers and emails to our smartphones. So what is the nature of memory in our minds? Is the memory of our heads different from the memory of our hearts?

The Atlantic Monthly recently featured the article “Why I Hope to Die at 75,” by Ezekiel Emanuel, physician and bioethicist. The message he states is one I have offered to clients many times: longevity has a down side, a dark side potentially in the form of a “gray area” of diminishing cognitive capacity, perceived “uselessness” and for many of us, dementia. I think the article is an important counter point to our death-denying and youth-glorifying mainstream culture that tends to view aging as a long process of descent from some place in the prime of our adult lives, along a journey where things can only get worse. But this article that states emphatically – 75 is long enough. This sounds a bit like some of my Baby Boomer age mates – who having lived through a parent’s dementia – proclaim they want an advance directive that has a box which states something like “if I get dementia and need Depends, just shoot me.” Don’t get me wrong, I applaud Dr. Emanuel’s message on several different levels in which it challenges conventional wisdom and the misplaced faith our culture has in our medical-industrial complex to keep our lives extended (not accounting for quality or purpose), but I think it misses the mark. Because babies are delivered via scheduled Caesarean section, does that mean we can cash in our chips at a scheduled time as well? I think not!

We are re-negotiating the tightrope of what we believe we control and what we do not control as it affects our lifespan in our old age (just as in any other stage of life, but perhaps with less baggage). We have become used to so many answers from the medical establishment that when we have this unprecedented number of elders facing dementia and/or incapacity, we are likely to simply “declare war,” spend lots of money and turn to big Pharma for some “fix” of our “problem.” The drug companies are more than willing to oblige and provide us with a pill to help assuage our fears, and yet another tool to interrogate the one with the slipping memory . . . “did you remember to take your pills today?” It often seems like an elder can’t exist as such without some kind of medical intervention!

Evident in Dr. Emanuel’s insightful article is the denial of the slowing down associated with old age (read the account of the aftermath of his father’s heart attack). I contrast this with what the late psychologist James Hillman wrote about in The Force of Character. In chapter nine, entitle “Leaving,” Hillman describes the conflict between his sixty-six year-old patient and her nonagenarian mother, for whom she supervised care. The patient was continually frustrated with her mother’s inability and seeming unwillingness to be principally concerned with the factual details of forensic-based (often short term because it involves daily functioning) memory. Hillman observes (at 88) that he saw this mother daughter conflict as exemplifying “the difference between short-term and long-term memory. It is as if you cannot have both at once. One has to give way to the other.” The chapter provides useful insight into the “life review” stage of elderhood which is gaining wider acceptance as a part of life, not just a loss of the familiar ways of doing from pre-retirement adulthood. I think it is one of the centerpieces of connected and engaged elderhood. Hillman closes it with the following questions, so often neglected:

Why do the dark days of the past lighten up in late recollection? Is this a subtle hint that the soul is letting go of the weights it has been carrying, preparing to lift off more easily? Is this a premonition of what religious traditions call heaven, this euphoric tone now coating many of the worst experiences, so that there is little left to forgive? At the end the unforgiveables will never be forgiven, because in old age they do not need to be forgiven: they simply have been forgotten. Forgetting, that marvel of the old mind, may actually be the truest form of forgiveness, and a blessing.

Hillman, The Force of Character at 93.

This observation brings me back to the rhetorical or existential question I posed in my previous blogpost about what is remembering and what is forgetting. Hillman weaves that question into a life’s span. I will close this first post with a poem: Walt Whitman’s poem “Whispers of Heavenly Death”

Whispers of heavenly death, murmur’d I hear;
Labial gossip of night—sibilant chorals;
Footsteps gently ascending—mystical breezes, wafted soft and low;
Ripples of unseen rivers—tides of current, flowing, forever flowing;
(Or is it the plashing of tears? the measureless waters of human tears?)

I see, just see, skyward, great cloud-masses;
Mournfully, slowly they roll, silently swelling and mixing;
With, at times, a half-dimm’d, sadden’d, far-off star,
Appearing and disappearing.

Some parturition, rather— some solemn, immortal birth:
On the frontiers, to eyes impenetrable,
Some Soul is passing over.

The Complete Poems of Walt Whitman (1995: Wordsworth) at 328.

To be continued . . . .

The Future of Dementia Care – Renegotiating the Terms

Date May 28, 2013

Posted by Barb Cashman

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I’m a baby boomer, but since both of my parents are now deceased, I’m no longer a “boomer sandwich.” What does the future hold for boomers, many of whom still have parents? Many of our parents are experiencing the frailties of old age and many suffer some form of dementia. The legal issues surrounding dementia are numerous and are typically intertwined with the related medical, financial, emotional and psychosocial issues.

I read a lovely article in the May 20, 2013 issue of The New Yorker about the fresh approach of one nursing home (I usually refer to these as SNF – short for skilled nursing facility) to caring for people with dementia. In “The Sense of an Ending,” Rebecca Mead looks at the plight of many of our elders who suffer from dementia. A large number of us would rather not be reminded that this is a side effect of aging for a certain number of people in our population. Denial or “if I can’t see it, it won’t happen to me” has not proved to be an effective strategy of coming to grips with any disease or health challenge that faces us. This story is among other things, about one institution that offers a decidedly non-institutionalized approach to dementia care, or a person-center alternative approach.

One of the people interviewed for the article, the director of education at the Beatitudes Campus in Phoenix, refers to people with dementia as “people who have trouble thinking.” What a contrast from the dominant theme of the medical model of our “secure units” at most SNF.

I liked the article’s focus on recognizing and honoring people’s tastes, preferences and their personal histories. This is about the “who” of the person as opposed to the “what” – the latter of which is focused almost exclusively on the medical problem and the loss of cognitive and other abilities. Mead’s article also describes some of the training the staff at the Beatitudes’’ dementia facility does to better empathize and understand people with dementia, and this honors the idea that we have something to learn from people with dementia. Seven insights we can gain are described here.

The person-centered approach was formulated by the late Tom Kitwood, a British psychologist and pioneer in the field of dementia care. His approach focuses on the maintenance of well-being in persons affected by dementia and is concerned with psychological needs including:

maintaining a person’s identity
engaging the persons or supporting them in come meaningful tasks
providing comfort (seeing the human dignity in each person, expressing warmth and acceptance)
recognition of feelings and for relationships – past and present

Recognizing these in a person with dementia does good not only for the person with the disease but also the loved ones and family members. I often think of dementia as “contagious” because it does not affect a single person experiencing the effects of the disease or condition, rather it has a ripple effect on others. Dementia is often the “beginning of the end” is it is often accompanied by a host of other ailments and is often a terminal illness

In the meantime, we have a war on Alzheimer’s in this country, no doubt due in no small part to the “silver tsunami” of baby boomers who will be at risk for the disease or some form of dementia. Our obsession with science and medical advances to come to our rescue is readily apparent here. I liked Professor Partha Mitra’s critique of the multibillion dollar neuroscience effort to draw up a “brain activity map.” Read it on Scientific American online here.

Kitwood’s work has been around for many years, long enough for the ideas to be kicked around, rejected and adopted in parts in many parts of the world. The notion of personhood is a powerful one and can help to reassess the appropriate limits of our medical model of dementia care in this country.

People with dementia challenge us to engage with them on their terms, how we can do that is up to us, what we have to learn from them. I have once or twice joked (yes, part of my penchant for jokes about death and dying and all manner of serious topics) that many people with dementia are people who are typically better than most of us at living in the present moment.

This is not to say that we ought to give up looking for some preventive measures or a “cure” for some types of dementia, this is a reorientation of the focus of care. Our system of protective proceedings, in Colorado known as guardianship (for an incapacitated person), focuses exclusively on what the person has lost and is no longer able to do for themselves. The substituted judgment which is the model for decision-making is based on a vague notion of “best interests” which purports to be some standard “out there” that is general and vague enough so that it could apply to most anyone.

Some things are refreshing when examined in a different perspective. What about applying the “golden rule” (I prefer Rabbi Hillel’s version “what is hateful to thee, do not unto thy fellowman”) in guardianship proceedings to determine who makes decisions and what type of living arrangements are appropriate? The person-centered approach recognizes there is still a person there, albeit one affected by the ravages of dementia, but who is often able to be “held in their identity.” I think this approach and others like it have much to teach us – whether we work in the legal, medical, mental health or financial worlds – about how to live and what and whom to value.