Good Communication Is Often a Scarce Resource

Speaking Stones?

Is Communication a Seasonal Thing?

In my experience working with elders, communication with loved ones can be fraught with difficulties.  Sometimes it can be a dialogue based on relationship and sharing of information, but it can also be a monologue forced onto others by one person (often an adult child) who strives to control the narrative of the family.  The “silent generation” needs to speak up!

Communication can be defined simply as:

a process by which information is exchanged between individuals through a common system of symbols, signs, or behavior

I draw attention to this because it is part of the “holiday season” that causes many people undue stress during the months of November and December!

Money Smart for Older Adults

With the goal of starting a discussion about empowering better communication by elders, I’m sharing a link to a newly published document called “Money Smart for Older Adults.”  It’s a resource guide published by the CFPB, which is known now as BCFP it appears, along with the FDIC.  It’s not a short document (weighing in at 100 pages) and would take some time to read – but it’s chock full of lots of resources.

It has some good information about scams, but keep in mind that most scammers are quite sophisticated and tend to “update” theirs tactics as well as tailor their scams to particular communities or individuals they target.  Think of the scammer as like a virus in this respect!

I think a most crucial factor, particularly for members of the “silent generation” is to communicate: ask first whether the person you have in mind will agree to help you.  This means that an elder should be careful about whom they ask to serve as agent for them under a durable POA.  It may seem like a given that an elder would first ask a family member or friend if they would be willing to serve, but when people think that disability and estate planning is just about filling out some forms, disaster can follow!  This can be hard for people of a certain age, who may not want to be sharing all these details about which they have remained mum most of their lives, but it is the best policy. Why?

Why the Silent Generation Needs to Speak Up

People should tell others whether they have a POA as well as who is the nominated agent so that others can help monitor things and look out for the interests of the elder.  Communication about our weaknesses, shortcomings or frailties is seldom easy for most of us, but when we name people to assist us, it can be helpful for others to know we have made such arrangements as well as who those people are.  For example, in case a neighbor knows that an elder is facing a particular health challenge and really needs help, the neighbor will know that the elder has already made plans and that the agent can be contacted and notified of the elder’s need for assistance.

Another reason to communicate wishes is to clarify the wishes in advance so that there are no surprises in the event of some accident or catastrophic event.  Sometimes there is an adult child who has a chip on their should or perhaps an overweening sense of entitlement, and this child may be sorely disappointed to learn of the parent’s choice of agent when the elder faces a difficult decision about which they may or may not be capable of deciding.  Making one’s wishes known well in advance can often “soften the blow” to such a child, but in the end, it may be of little assistance.

If an agent knows that there are others who might be looking over their shoulder, the agent may take better care of the principal’s interests.

Some Parents Need to Protect Themselves Against a Child Who Wants to Control The Parent

At the other end of the spectrum, I see quite a bit of “misery loves company” behavior as well.  In this type of scenario there is one child who has been selected by the now-incapacitated parent who is effectively being punished by a child who feels left out or believes she should be entitled to make the decisions for the parent – this notwithstanding the fact that the parent did not select that child for such a decision-making role, usually for good reason.  To my mind, there is a fair amount of litigation that is fueled by the “let no good deed go unpunished” and this is very unfortunate.  But I digress….

Over the years, I have only spoken with a few people about including a “POA protector” in the POA document, but it may be that including such a role can be beneficial to a principal and also serve to protect the agent against the hostile actions

I s there anything that can be done about this?  Some trusts are written which name a person known as a “trust protector,” and it may be time for a similar type of office to be created for the POA – like a POA protector.  This can be a third person who keeps an eye on the agent’s record keeping or bookkeeping.

And don’t forget. . . Today is Giving Tuesday! You say you’re not familiar with this new tradition? It’s been around for over six years and it’s dubbed “a global day of giving fueled by the power of social media and collaboration.”

© Barbara Cashman www.denverelderlaw.org 2018, all rights reserved.

A Brief Look at the Thinking Behind Guardianship Reform

Help with wings

Those of us who practice in the field of conservatorships and guardianships (this is Colorado terminology; their precise titles vary from state to state) are now struggling to make sense of the many proposed changes put forward by critics.  I am primarily concerned with the proposed legislation from the Uniform Law Commissioners known as the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act (UGCOPAA).  This proposed legislation has been hailed as a modern update to guardianship and conservatorship law.  Where Colorado (in contrast to many other states) has long established uniform guardianship and conservatorship legislations, along with periodic updates, the new uniform legislation is basically “Guardianship 2.0” in that it represents a major and systematic update and overhaul.  The American Bar Association has a good overview of the proposed uniform legislation here.

The Challenges of Reforming Different Systems Among the States

Nationwide, there are many groups and individuals behind efforts to reform guardianship (as the term will be used collectively to refer to both types of legal proceedings).  The different groups have different criticisms and there is no shortage of horror stories about how these “protective proceedings” have gone wrong for many people.  While many people would like to have more uniformity and oversight imposed on the state systems of probate courts, the federal government is neither equipped nor inclined to act as overseer here.  The lack of resources for the much-hailed Elder Justice Act is an example of this unfunded mandate.

There Are At Least Two Different Populations of Vulnerable Persons

Guardianship reform efforts are aimed to assist those identified as the most vulnerable segments of our population: the disabled community (with organizations like The Arc and legal protections like the ADA), along with elder adults with declining cognitive capacity.  This latter population will continue to grow.  The numbers of elders with severe cognitive impairment grows with the numbers of elders, and the Alzheimer’s Association has dubbed my generation of baby boomers “generation Alzheimer’s.”    To my mind, there are two very different “camps” of persons in this proposed legislation.  Suffice it to say that the two segments are generally included as a group together because of the overlapping needs for respect for their rights to dignity and self-determination.

My central concern with the proposed legislation is the point where the two groups interests and needs for protection diverge.  Keep in mind they are very different populations.  I’m using a broad brush here, but we’re talking about needs and protections of a developmentally disabled adult who may be relatively high functioning in some aspects of living and need substantial assistance in others.  They may be able to live independently with assistance.  Contrast this with the large numbers of elder adults who, as a direct result of our unprecedented longevity, have amassed resources, established relationships and lived their own lives prior to succumbing to dementia.  When does one lose the ability to manage one’s own affairs?  That simple question has no simple or easy answer!

Among those who call for guardianship reform in the context of elders, there are a couple groups, those associated with celebrity children of fathers who suffered from Alzheimer’s Disease.  These daughters were not allowed sufficient visitation with their fathers due to restraints placed on such visits by their stepmothers, specifically Kasem Cares and the Catherine Falk Organization, who have zeroed in on a right to association as part of guardianship reform.

The Guardianship Reform Movement Is a Diverse Group with Many Diverse Interests Represented

Suffice it to say that some of the diverse interests conflict with each other.  Many of the calls for guardianship reform are in response to the inherent failings of a particular state’s system of oversight.  Nevada’s system in Clark County was the subject of Rachel Aviv’s New Yorker article “The Takeover,” and it documented in horrifying detail how elders were systematically stripped of their civil rights as well as their property, with hardly a nod in the court system to any due process rights.

That reform is needed is not the issue, but the where, how, why and what of that reform should be examined closely, instead of trying to overlay a “fix” for a problem which may not exist or by creating new problems by reforming a system in its entirely when there were parts of it that were working fairly well.  If you take a poll of attorneys in this field, you would be hard pressed to find people who don’t have concerns about how our system works and most of us could list an array of its shortcomings.  Does this mean the system is broken? I don’t think so. Does it need improvement? Yes.  Our legal system is a functioning part of our government that must respond to the diverse array of interests, pressures and fiscal priorities and realities.

What I find disturbing about all of this is the clamor to “fix” a broken “system” – as if all we needed to do was pass some new legislation that would magically transform the adult protective proceedings system into a streamlined, dignity-honoring and civil rights protecting regime. In our obsession to fix a problem and then move on to the next thing, we overlook the opportunity for thoughtful change and typically neglect the big picture of looking at the entire system – both the working and the failing parts, with an eye to improving particular outcomes.  This takes longer obviously, but avoids the throwing the baby out with the bathwater approach.

Next time, I will look more deeply into the criticisms levelled at attorneys and fiduciaries working in the field of conservatorships and guardianships.

© 2018 Barbara Cashman  www.DenverElderLaw.org

Do You Need Long Term Care Insurance?

Just Curious!

Like many other questions I pose to clients, who ask me the question first – my answer often begins with . . . “it depends.”  This particular question is often posed by clients doing pre-retirement planning and this may be the best time to be considering one’s options about how best to plan for retirement.  I would consider how one answers this question posed in the title to be part of how we look at our elderhood and its challenges and uncertainties, about which I have recently blogged.  So I will start with some basic questions.

How long will you live?

Sure, I bought a crystal ball a couple years back from a local shop, Grandpa’s Attic in Littleton, but I haven’t yet found a reputable online “gazing” course to hone my crystal ball reading skills. . . . ! Let me know if you have any leads on that.

Will you have health conditions that will make it difficult for you to live independently?

Some of us already have chronic health issues by the time we hit our 50’s or 60’s, so this might be a “heads up” that things could get progressively more difficult.  But many of us just want to simply pretend that a downturn in our health status isn’t likely and so somehow it wouldn’t be possible that we will outlive our financial resources.

Will you have enough money saved to cover for the needed additional care?

Many elders I know want to leave something to their kids after they’re gone.  How does the need to pay for care services, which one typically had been paying for previously in one form or another (if the elder had not been a longtime recipient of government benefits) adversely impact the person’s ability to leave a legacy to family members? Well, simply put, it can pit your own well-being and financial wherewithal against your child’s desire to inherit from you.  I know, it sounds crass and the kind of thing that would never happen to you . . . but the fact is that we elder law attorneys see a fair amount of this.  Why provide the temptation for your kids, to pit your ability to pay for your care against their ability to inherit funds from you?

If you don’t have sufficient funds to pay, who will pay for your care?

Many people assume that if they can’t pay their own way, perhaps family members will care for them.  In fact, our health care system (and I am reminded of Walter Cronkite’s quote “America’s health care system is neither healthy, caring, nor a system”) relies heavily on family caregivers to provide free services to help manage their loved one’s care, improve the patient’s quality of life, as well as reduce costs to the health care system.  Many folks simply want to assume that they will be able to stay in their home, regardless of their physical or medical condition.  This behavior has a name: avoidance or denial!

Will there be sufficient levels of public assistance available in the even you run out of money?

If you think that there will be plenty of money from your fellow taxpayers to fund your care, you might want to reconsider! The Medicaid expansion in Colorado under the Affordable Care Act made many more funds and programs available to impoverished elders who could not afford long term care services, but the continuation of these funds and services is not a sure thing!  The failed American Health Care Act would have gutted those funds available for elders.  Read more here from Justice in Aging’s blog.

Do you already assume that long term care insurance is going to be too expensive?

I met a financial advisor last year who was fairly new to the business, she told me that only “wealthy people” get LTC insurance. I explained to her in my experience that was not the case!  There are people who make getting a LTC policy a financial priority, and they aren’t always those folks who can otherwise afford easily to self-insure – meaning the wealthy who can afford a Cadillac LTC policy or who have enough funds to privately pay for care without making a dent in their kids’ inheritance.

The fact is, there are more ways to fund the purchase of an LTC policy than you can shake a stick at!  Here’s an article by Wade Pfau from Forbes magazine that has several helpful links to the smorgasbord of options currently available.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

 

Colorado End of Life Options Act – A Vocabulary Lesson

A Threshold

I’m gearing up for a continuing legal education program where I’ll be presenting on this new Colorado statute [EoLOA for short, even if it sounds more like Hawaiian], so I’m now writing part of my materials.  I thought I’d start with the basics in this post by looking first at how terms are defined (or not defined) in the statute as well as the parameters of the “right to request” life ending drugs.  I will list the entire definitional section here, but due to space constraints, will focus only on a couple salient terms in this post.

Here’s an overview of some of the key terms in the statute’s definitional section, 25-48-102:

  1. Adult means an individual who is 18 years of age or older;
  2. “Attending physician” means a physician who has primary responsibility for the care of a terminally ill individual and the treatment of the individual’s terminal illness.
  3. “Consulting physician” means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding a terminally ill individual’s illness.
  4. “Health care provider” or “provider” means a person who is licensed, certified, registered, or otherwise authorized or permitted by law to administer health care or dispense medication in the ordinary course of business or practice of a profession. The term includes a health care facility, including long-term care facility as defined in section 25-3-103.7(1) (f.3) and a continuing care retirement community as described in section 5-6-203 (l)(c)(I), C.R.S.
  5. “Informed decision” means a decision that is:
  • (a)Made by an individual to obtain a prescription for medical aid-in- dying medication that the qualified individual may decide to self- administer to end his or her life in a peaceful manner;
  • (b)Based on an understanding and acknowledgment of the relevant facts; and
  • (c)Made after the attending physician fully informs the individual of;
  • (I) His or her medical diagnosis and prognosis of six months or less;
  • (II)  The potential risks associated with taking the medical aid-in- dying medication to be prescribed;
  • (III) The probable result of taking the medical aid-in-dying medication to be prescribed;
  • (IV) The choices available to an individual that demonstrate his or her self-determination and intent to end his or her life in a peaceful manner, including the ability to choose whether to:
    • (A)Request medical aid in dying;
    • (B) Obtain a prescription for medical aid-in-dying medication to end his or her life;
    • (C) Fill the prescription and possess medical aid-in-dying medication to end his or her life; and
    • (D) Ultimately self-administer the medical aid-in-dying medication to bring about a peaceful death; and
  • (V) All feasible alternatives or additional treatment opportunities, including comfort care, palliative care, hospice care, and pain control.
  •  (6) “Licensed mental health professional” means a psychiatrist licensed under article 36 of title 12, C.R.S., or a psychologist licensed under part 3 of article 43 of title 12, C.R.S.
  • (7)“Medical aid in dying” means the medical practice of a physician prescribing medical aid-in-dying medication to a qualified individual that the individual may choose to self-administer to bring about a peaceful death.
  • (8) “Medical aid-in-dying medication” means medication prescribed by a physician pursuant to this article to provide medical aid in dying to a qualified individual.
  • (9) “Medically confirmed” means that a consulting physician who has examined the terminally ill individual and the terminally ill individual’s relevant medical records has confirmed the medical opinion of the attending physician.
  • (10) “Mental capacity” or “mentally capable” means that in the opinion of an individual’s attending physician, consulting physician, psychiatrist or psychologist, the individual has the ability to make and communicate an informed decision to health care providers.
  • (11) “Physician” means a doctor of medicine or osteopathy licensed to practice medicine by the Colorado medical board.
  • (12) “Prognosis of six months or less” means a prognosis resulting from a terminal illness that the illness will, within reasonable medical judgment, result in death within six months and which has been medically confirmed.
  • (13) “Qualified individual” means a terminally ill adult with a prognosis of six months or less, who has mental capacity, has made an informed decision, is a resident of the state, and has satisfied the requirements of this article in order to obtain a prescription for medical aid-in-dying medication to end his or her life in a peaceful manner.
  • (14) “Resident” means an individual who is able to demonstrate residency in Colorado by providing any of the following documentation to his or her attending physician:
    • (a)A Colorado driver’s license or identification card pursuant to article 2 of title 42, C.R.S.;
    • (b)A Colorado voter registration card or other documentation showing the individual is registered to vote in Colorado;
    • (c)Evidence that the individual owns or leases property in Colorado; or
    • (d)A Colorado income tax return for the most recent tax year.
    • (15)“Self-administer” means a qualified individual’s affirmative, conscious, and physical act of administering the medical aid-in-dying medication to himself or herself to bring about his or her own death.
    • (16) “Terminal illness” means an incurable and irreversible illness that will, within reasonable medical judgment, result in death.

So here goes . . . this law is only for adults! There is no provision for minors as is allowed in some European countries, like Belgium.  Next, you’ll note that the physicians (they must be licensed M.D. or D.O., no N.P. or P.A. allowed) have a huge amount of responsibility.  Remember that the gist of this law is to remove the threat of criminal prosecution for assisting a person to die by prescribing life-ending drugs under certain proscribed circumstances, so this focus on the doctors is wholly appropriate.

The two basic types of physicians are the attending and the consulting.  The attending physician is the one who has primary responsibility for the care of the terminally ill individual.  We are familiar with the phenomenon of the “pot shop” doctor here in Colorado . . .  well this provision is designed to ensure that the attending is not someone who simply provides the scrip for the life-ending medication or “medical aid in dying” [hereafter MAID] as the statute calls it.

The attending physician must “fully inform” the individual of the diagnosis, prognosis of six months or less; as well as the choice (see (5) (c) above) and consequences of requesting MAID as well as the alternatives including additional treatment, palliative care and hospice care.  Unfortunately for us, the terminology used in (5) is “informed decision,” which is a term foreign to Colorado law.  In the statute it is tied to “mentally capable” in (10), which includes the ability to make and communicate an informed decision to health care providers.  The Colorado term which is familiar to me is from the Colorado Medical Treatment Decision Act, at C.R.S. §15-8.7-102(7), which defines “decisional capacity” as the ability to provide informed consent to or refusal of medical treatment.  A similar definition is found in the health care POA statute, at C.R.S. §15-14-505(4).  The preceding section of that statute also states (at §15-14-504(4):

Nothing in this part 5 shall be construed as condoning, authorizing, or approving euthanasia or mercy killing. In addition, the general assembly does not intend that this part 5 be construed as permitting any affirmative or deliberate act to end a person’s life, except to permit natural death as provided by this part 5.  

Interesting, huh? While reviewing inconsistencies between these terms describing capacity is something attorneys might get excited about, it appears unlikely to provide difficulties for the physicians involved.   I will discuss the “mentally capable” determination a bit more in a later post that looks at mental health concerns.  Likewise, the duties and responsibilities of the attending physician are numerous and I will continue the discussion of what the statute describes in a later post.

I will conclude this first post about statutory language with an observation.  Death as described in the EoLOA is defanged, now a technical medical procedure, even a treatment if you will, for perceived intractable suffering.  The option to seek out MAID to end suffering involved with a terminal illness has little to do with the physical pain incident to illness (statistics from Oregon bear this out) and more with the loss of dignity and quality of life, presumably incident to the progression of the disease.  Why should an elder law attorney like me be concerned about this? Because in our culture, much of the experience of aging is focused on losses and precious little attention is directed toward gratitude for our continued life, such as it may be!

The other matter that concerns me greatly in the “technocratizing” of dying and actively choosing death is that we surrender even more power to our doctors.  This has little to do with our perception of how medical technology is used to extend life, but rather is concerned with our thinking about the nature of life, including disease, dying and death.  Our doctors cannot protect us from suffering – they are only doctors after all, but they can help manage treatment of pain.

More “vocabulary terms” next week.

© Barbara E. Cashman 2017   www.DenverElderLaw.org

 

 

Social Media Abuse of Elders

Contrast

Contrast

 

I recently came across this horrifying article published Monday in ProPublica, entitled “Federal Health Officials Seek to Stop Social Media Abuse of Nursing Home Residents.”  It seems that some staff members of nursing homes are publishing photos, audio and video recordings of some residents in the social media like Snapchat, Facebook or Instagram, or sent in text messages as multimedia attachment.  These pictures, audio and video files often depict elder residents of the facilities s in demeaning and humiliating ways so as to result in mental abuse.   The Centers for Medicare and Medicaid Services has recently sent out a memorandum concerning this to the State Survey Directors.

Do the skilled nursing facilities have prohibitions against such intrusions in place?  Some evidently did not, but there can be little doubt that nearly all will have such protections in place soon in light of these disturbing developments.  Here’s an article about such violations in Ohio nursing facilities.

The CMS memo referred to above defines mental abuse as that abuse which:

[M]ay occur through either verbal or nonverbal conduct which causes or has the potential to cause the resident to experience humiliation, intimidation, fear, shame, agitation or degradation.  Examples of verbal or nonverbal conduct that can cause mental abuse include but are not limited to: nursing home staff taking photographs or recordings or residents that are demeaning or humiliating using any type of equipment (e.g., cameras, smart phone, and other electronic devices) and keeping or distributing them through multimedia messages or on social media networks.  Depending on what was photographed or recorded, physical and/or sexual abuse may also be identified.

ProPublica has been following this following these developments for many months and this article from December 21, 2015 details some of the incidents this mental and physical abuse of incapacitated elders perpetrate by the nursing home staff members.  In a case in New York where a nurse aide took photos of an incontinent resident’s genitals covered in fecal matter and shared them with another staff member on Snapchat, he was fired and pleaded guilty to a misdemeanor count of willful violation  of health laws.  What I found particularly disturbing was the comment of one home’s administrator to ProPublica that “[t]echnology is a problem for us, for everybody, these days… The resident involved was not harmed but certainly it was a serious incident.”  Are incapacitated nursing home residents not entitled to any human dignity and to be free from such exploitation for someone’s entertainment?

One of the incidents described by ProPublica is from August 2015.  It occurred in a rural area of Colorado and involved a youth volunteer at a nursing home who took a selfie which showed a 108-year-old resident urinating.  The volunteer apparently shared the photo with her friends at school and the facility did not learn of the offending photo until months later.  The volunteer was not monitored by the facility but did report to the local police, and was later charged with invasion of privacy.

What is human dignity when it cannot be defended by an incapacitated elder? What is human dignity when it is not readily apparent or recognized in places where people are institutionalized for the paramount concern of their safety?

Dignity, as in the legal right, is not easily defined.  In fact, you would be hard pressed to find many references to it in our laws.  International law, specifically the international law of human rights, has much more to say about human dignity, but that is another blog post!

I will close with just a couple observations and questions. . . .

If humiliation is the opposite of being treated dignity and respect, is our system of laws really equipped to deal with this type of new frontier of the rights of incapacitated persons to be free from intrusions by others who humiliate them for sport or humor?

Is the dignity of or respect for elders a right in this context or is it overshadowed by our concerns for safety, and how does an incapacitated elder’s diminishing bailiwick of autonomy factor into this equation?

On this note, here is a link to an interesting article about the dignity of elders.  More to come on this very challenging topic.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

Advance Health Care Planning and the Death Taboo

Summer Flowers

Summer Flowers

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

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

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

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

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

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

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

©Barbara Cashman  2015   www.DenverElderLaw.org

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

At the Chatfield Wetlands

At the Chatfield Wetlands

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

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

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

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

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

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

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

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

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

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

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

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

©Barbara Cashman  2015   www.DenverElderLaw.org

Denial of Aging and Death as Source of Conflict

Centranthus or Jupiter's Beard

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.

 ©Barbara Cashman  2014   www.DenverElderLaw.org

Aging, Meaning and Memory

Medicine Bow National Forest

Medicine Bow National Forest

This is another contemplative post – so please forgive me.   I am preparing for a retreat on this exquisite topic of memory. . . . !   Since I find the topic of spirituality and dementia fascinating, I have been reading “Finding Meaning in the Experience of Dementia: The Place of Spiritual Reminiscence Work,” written by Elizabeth MacKinlay and Corinne Trevitt (published in 2012).  I especially enjoyed reading chapter ten “Grief is part of Life,” that speaks to much of my estate planning work with elders and their loved ones.  It begins:

Loss of relationship either through death or through geographical separation is closely tied to the meaning of life.  Meaning does not cease to exist because a person is dying; in fact, it is in facing death that it can be possible, perhaps for the first time, to see the meaning of one’s life.

Finding Meaning in the Experience of Dementia: The Place of Spiritual Reminiscence Work at 171.

Is our memory informed by our experiences and accordingly limited to our perception alone, or do we have the ability to further construct the memory so as to make it a memory of our whole being, as opposed to some event recalled which can be verified by another?  Therein lies some of the quantity versus quality aspects of memory . . .  but I am focusing today on this topic of memory in the context of aging and meaning.

So much of our important grief work is pushed aside in our death-denying and youth-glorifying culture.  I think this is a big part of the anxiety and depression and despair that so many of us struggle with in our culture because we do not see or otherwise recognize the inherent meaning of loss of youth and dying and death.

Memory is a phenomenon that is both individual and collective.  So to whom does memory belong or to whom should it be attributed?  What part of cognitive decline implicates memory and what is it that we are talking about when we use this term “cognitive decline?”  This can of course be age-associated and within “normal” limits or it can be identified with a disease process, such as the course of dementia of different types.  How do we distinguish the aging process that occurs naturally and that leads inevitably to our death from that process associated with a disease?  This may seem like a straightforward question – but I think it is far from that!  When aging becomes inextricably linked with decline in a way that is viewed as a disease process, we are essentially denying death, killing it off as the culmination of life and viewing the whole aging process and our mortality as a disease, some kind of shortcoming in our biology. If you think I am exaggerating about his, do a search on Aubrey de Grey and his so-called longevity science. . .

Dementia can further complicate a grief process as well.  Even the term “anticipatory grief” sometimes used for grief for the loss of a loved one with dementia before they die – the loss of relationship and the outward self – implicated the complexity of the grief process and the context for the grieving of surviving loved ones.

So now I will turn to the third aspect of this post’s title – memory – to connect the aging and meaning aspects.  What is memory?  Aldous Huxley wrote that “every man’s memory is his private literature.”  In “The Life of Reason,” George Santayana stated that “memory itself is an internal rumor.”  In this respect, we could say, that the memory belongs to the person.  But what about the memory that we share – isn’t that memory too?

What is it that we see and that we call memory?  In “The Marriage of Heaven and Hell,” the poet William Blake observed “If the doors of perception were cleansed every thing would appear to man as it is, Infinite. For man has closed himself up, till he sees all things thro’ narrow chinks of his cavern.”

So does memory free us from the constriction of our lives or does it enslave us to our experience of things past?

It seems that once again, I have asked far too many questions than could be answered in a blog post (or perhaps even a lifetime?!) and with that said, I’ll conclude with Friedrich Nietzsche’s observation that “the existence of forgetting has never been proved: we only know that some things don’t come to mind when we want them.”   Yes, there will be more on this topic . . .

©Barbara Cashman  2014   www.DenverElderLaw.org

Annuities and Elders – a Complicated Mix

Monet Garden Pond at DBG

Monet Garden Pond at DBG

 

Annuities are sometimes described as an emotional investment vehicle because they guarantee lifetime income for a person.  This can help an elder feel more secure about their money, at least about their monthly income.  This security comes at a cost.  There is lots of information, probably too much information about annuities available on the internet.  This is where it is a good idea to employ one’s “crap detector” (as cyberculture expert Howard Rheingold identifies it in the 2012 book NetSmart) but it is not simple for these types of investments because they are often very complicated instruments.

Annuities tie up someone’s money long-term, and the terms of the annuity – both risks and benefits, and especially how the risk is monetized as a cost of the arrangement, should be looked at  carefully.  The annuity is governed by a contract and generally provide periodic payments over a specified amount of time, provide benefits to a designated beneficiary (if the annuitant, the person on whose life the annuity contract is based, dies prior to receiving payment),and can provide certain tax deferred benefits.

Sometimes people sell annuities that are touted as Medicaid friendly, but Medicaid rules, which vary from state to state, change often.  Bottom line is that some annuity sales persons want to sell an annuity that is based simply on the insurance company or other financial institution taking a larger sum of money and doling it out in small portions over a course of years.    Making an investment that may or may not be appropriate or a good idea for a particular individual is often complicated by the perceived “need” to qualify for immediate benefits.  Annuities are only part of the picture.

 

First off, what is an annuity?

The SEC’s website provides a succinct overview of the three basic types:

  • Fixed annuity. The insurance company promises you a minimum rate of interest and a fixed amount of periodic payments. Fixed annuities are regulated by state insurance commissioners. You can check the Colorado Commission on Insurance website here  about the risks and benefits of fixed annuities and to confirm that your insurance broker is registered to sell insurance in your state.
  • Variable annuity. The insurance company allows you to direct your annuity payments to different investment options, usually mutual funds. Your payout will vary depending on how much you put in, the rate of return on your investments, and expenses. The SEC regulates variable annuities.  FINRA has a succinct explanation of variable annuities here.
  • Indexed annuity. This annuity combines features of securities and insurance products. The insurance company credits you with a return that is based on a stock market index, such as the Standard & Poor’s 500 Index. Indexed annuities are regulated by state insurance commissioners.

 

Okay, I might as well go the full gamut here and mention “life settlements” while I’m on the topic of insurance and elders . . . .  Say what? I first heard about these arrangements under their much more glamorous sounding name of “viaticals” or the acronym “STOLI” (stranger originated life insurance). These settlements became popular during the AIDS epidemic, but the first instance of it being approved comes from the 1911 U.S. Supreme Court decision of Grigsby v. Russell, 222 U.S. 149 (1911), Dr. A. H. Grigsby treated a patient named Mr. Burchard, who wanted a particular surgical operation but could only pay for it with a life insurance policy.  Burchard sold Dr. Grigsby his life insurance policy in return for $100 and for agreeing to pay the remaining premiums, and so the first viatical settlement transaction was created.  After Burchard died, Dr. Grigsby attempted to collect the benefits but the executor of Burchard’s estate successfully challenged the arrangement. The case eventually reached the U.S. Supreme Court where Justice Holmes stated in relevant part that “so far as reasonable safety permits, it is desirable to give to life policies the ordinary characteristics of property. To deny the right to sell except to persons having such an interest is to diminish appreciably the value of the contract in the owner’s hands.”  222 U.S. at 155-56. Okay, once again I’ve gone off-track in this post about annuities. . . .!

I am writing this because in my work people contact me and in the scope of gathering information I often encounter difficulties and misunderstanding on the part of annuitants, beneficiaries and other survivors of annuity contracts.  The remorse and misunderstanding factor on these types of investment contracts can be high – so take a calm and measured look at these before you or someone you care about signs a contract!

Wondering about where to get more information about these annuities? Here a link to the FINRA warning about these investments – FINRA is short for Financial Industry Regulatory Authority (for those of us who took a securities law class in the previous century, this agency was formerly known as NASD – the National Association of Securities Dealers). Where the Securities and Exchange Commission (SEC) is a government regulatory agency, FINRA is the largest self-regulatory organization in the American securities industry.

To recap, annuities seem to be appealing to many older folks (boomers included) because of their emotional appeal of guaranteed income for life.  This article from Business Week is nearly ten years old, but is still relevant.   Best to explore and discover the best means for what to do with your limited funds in retirement and make sure that you have considered all the options before alighting on the one that is right for you – especially if it is an investment that cannot be undone.

 ©Barbara Cashman  2014   www.DenverElderLaw.org