Will you need a dementia specific advance directive?

Reflection on a Lake

Are you one of the few and one of the brave who is willing to talk openly about dementia – specifically what kind of care you want and how you want your health care agent to decide for you in the event you have dementia?  Based on stats from the summer of 2017, fewer than one-third of Americans have executed a living will.

So, if you are one of those persons, this series of posts is for you!

By midlife, many of us have had some personal experience with a family member or loved one with dementia.  The disease Americans are most afraid of is the dreaded Alzheimer’s Disease (AD for short) or some other form of dementia.  For some of us, it overshadows even the fear of death.  Perhaps this is because that dis-integration of the brain causes us to forget the most basic of things – who we love, what we like to do, what is our identity, and even how to die. 

In our brain-centric culture, which so often takes a reductionist view of the body as a kind of machine (e.g., the heart is only “a pump”), to lost one’s mind is the most fearsome of possibilities.

 How will you know whether you might need a dementia advance directive? [Yes, it’s a trick question….]

Over the years I have worked with a couple clients who have been diagnosed with early stage AD.  These are typically the folks who are recruited to participate in studies involving the progress of the disease and new therapies.  Informed consent for voluntary participation in these studies can be challenging. Here’s a link to an informative background paper from the 2017 Research Summit on Dementia Care, through HHS.

What are our choices?

Do nothing and hope for the best. 

This is what most of us will choose by default.  “My kids will know what I want,” I’ve heard said with a shoulder shrug.  Really? How much more difficulty do we want to add to an already challenging situation?

Can’t I just rely on people I’ve already put in charge who know me to make the right decisions for me?

Yes, of course, as long as you have the documentation in place.  Most importantly a health care power of attorney, which names a person (an agent) to make decisions for you in the event you cannot give informed consent for medical treatment.  The health care provider is the person who decides whether a person can give informed consent.

You must rely on others, because dementia is a scenario which will leave many of us very vulnerable and unable to manage things on our own.  There, I’ve said it.  Is that really a fate “worse than death?”  There is an inherent dignity of human beings, regardless of our “cognitive status” or whether we have trouble thinking or remembering.

What do I need to consider to put in this dementia directive?

This is some heavy lifting…. Let me start with a bigger picture.  I enjoyed reading a recent New Yorker article by the late neurologist and writer Oliver Sacks which recounted the activities of two different patients with dementia.  One was a doctor who had been the medical director of a hospital where Sacks had worked.  Despite his mid-stage dementia, the doctor had periods of relative clarity where he believed he was a doctor at the hospital and would write prescriptions.  This was intermittent, however and some of the time the doctor was painfully aware of his predicament and his mounting losses. The article poses the basic question about how to treat someone with AD, do we honor the persons dignity and support them, to the extent feasible and appropriate, in the belief that they can still perform the job that served as the cornerstone of their identity?

This can be a tricky conversation, but of think of a relative who died in a facility from AD.  After she lost most of her ability to speak and communicate with others, she retained a decent command of her fine motor skills.  She had been an expert seamstress and embroiderer and my cousin reported how happy and occupied she was when she was given a knotted up necklace chain to untangle.

Okay, back to the response to the third question.  There is a big difference in a dementia directive between expression of a “freedom to”  in terms of what a person wants provided for them in the type of dementia care, and the right to express preferences which are a “freedom from” a statement of what is not wanted in advance of a time when we may no longer be able to object to such interventions planned or carried out “for our own good.”  How much can we describe and determine in advance and what will actually “stick” in terms of the two competing positive and negative statements?  Well, that’s a topic for my next post!

© Barbara E. Cashman and www.DenverElderLaw.org  2019. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Barbara E. Cashman and www.DenverElderLaw.org  with appropriate and specific direction to the original content.

Identifying the Inner Landscape of Elderhood

 

Italian Arch

Last week I went on a “spring break” trip of sorts. . .  to the Jung in Ireland seminar with the Monks of Glenstal Abbey. This year’s topic was shame and pride.  It was my third trip to Ireland for this seminar and this year’s topic resonated with me because I encounter these difficult emotions – particularly shame – in my elder law and probate practice.  Some of the issues I see, which have burgeoned into legal difficulties and which may necessitate legal proceedings – often resulting in extensive involvement by a court, might begin with these difficult emotions and play out badly in the family relationship context.

In my experience, one of the most difficult things for an elder parent to contend with is a squabble over how the elder’s health challenge or cognitive decline or other age-related malady will be managed by the adult children.  This can be a difficult place for a family as the elder parent just wants the kids to stop fighting, while the children often wage a pitched battle over who has the correct approach to helping the parent manage difficulties, as well as difficulties in identifying and upholding what each child perceives (often differently) as the best interests of a parent.  These adult children often cannot understand that each of them may be just as convinced as another sibling with an opposing point of view that they are uniquely equipped to handle the delicate issue of managing finances, helping secure appropriate housing or serving as a health care agent for their parent.

I offer these posts as a kind of alternative to an elder parent doing nothing – hoping not to cause world war III among their children.   Some parents hold to their firmly held belief that they “raised their kids right” and so naïvely want to believe that this thinking will somehow immunize them from conflict or worse, exploitation.  Many elders simply choose to wait, and simply hope for the best in the event a crisis occurs, to see how things might play out on a kind of wait and see basis.  There is an alternative to this denial!

This alternative I describe is about the kairos of elderhood. Kairos being the quality of time, the paying attention to the present and its opportunities to see what is in front of us and that which we have set before ourselves.  In our culture we focus almost exclusively on the quantitative aspect of time – chronos – as we simultaneously obsess over our longevity and puzzle over what to do with it.  In this post, I will identify the inner landscape as a determiner of what we see and perceive as the outside world – and how this might free us from some of our anxieties about aging and its deleterious effect on our human doing-ness.

What is the “inner landscape” to which I refer?  Well, the inner would refer here to the landscape which is inside us, how we see the world. I am reminded of Anais Nin’s keen observation that “we see the world not as it is but as we are.”  How can we remember this important detail in our “always on” world, where the disease of busy-ness is a chronic affliction and the pace of our lives offers few opportunities (much less encouragement) of staking out some reflective and contemplative time in our lives to consider an inner landscape?

In his book Mindsight, the psychiatrist Daniel Siegel offers an insightful description about personal transformation(s) that can lead to an integration of a self otherwise consisting of many disparate aspects.  I quote Mindsight at 238:

This drive for continuity and predictability [of a sense of self] runs head-on into our awareness of transience and uncertainty.  How we resolve the conflict between what is and what we strive for is the essence of temporal integration.

How many of us could remember by heart Blaise Pascal’s injunction “in difficult times carry something beautiful in your heart?”  If we can remember, perhaps that something beautiful is a feature of our inner landscape, made visible to us by an experience when we were outdoors in nature, in an interaction with another person or being, or perhaps by some sense of our identity relative to the “outside” world.  Our sense of permanence is illusory, and draws us again to the distinction between what we see and what we look for – the latter being where the Kairos quality of time resides.

That “something beautiful” is perhaps what Viktor Frankl describes in this quote from Man’s Search for Meaning, in which he describes the challenge of readjusting to life outside for the concentration camp survivors like himself:

What was really needed was a fundamental change in our attitude toward life. We had to learn ourselves and, furthermore, we had to teach the despairing men, that it did not really matter what we expected from life, but rather what life expected from us. We needed to stop asking about the meaning of life, and instead think of ourselves as those who were being questioned by life—daily and hourly. Our question must consist, not in talk and meditation, but in right action and in right conduct. Life ultimately means taking the responsibility to find the right answer to its problems and to fulfill the tasks which it constantly sets for each individual.

I am reminded also of “Against the Pollution of the I,” by another concentration camp survivor (the blind French resistance leader), Jacques Lusseyran, where he describes “seeing” (remember he lost his sight as a child) …

It is often said that seeing brings us closer to things.  Seeing certainly permits orientation, the possibility of finding our way in space.  But with what part of an object dies it acquaint us?  It establishes a relationship with the surface of things.  With the eyes we pass over furniture, trees, people.  This moving along, this gliding, is sufficient for us.  We call it cognition.  And here, I believe, lies a great danger.  The true nature of things is not revealed by their first appearance.

Against the Pollution of the I, at 54 (2006: Morning Light Press).

I will end this post with another question, akin to the kairos-chronos distinction: If we as individuals and as persons in relationship with loved ones valued our time (how we spend it) as much as we do our space (how we fill it with stuff) – could this change our relationships for the better?

© Barbara E. Cashman 2017   www.DenverElderLaw.org

August 6th Interactive Gathering on The Conversation Project

 

denver elder law

DBG Japanese Garden Stream

 

I recently received an invitation for an event at The Denver Hospice (at their corporate headquarters) and wanted to share it with the community.  I have blogged previously about the importance of having a conversation about end of life wishes (and also the need for documents based on that conversation – like a health care power of attorney and advance directives) as well as The Conversation Project and so this cause is near and dear to me.  I won’t be able to attend this event, but know it will be well facilitated by Laurel Okasaki-Cardos, community educator at the Life Quality Institute.  If you are interested in participating, please email Laurel at lokasaki@lifequalityinstitute.org to get more information or RSVP.  You can also call her at 303-398-6259.

In case you can’t attend the gathering at the Denver Hospice on the 6th, Laurel offers these interactive gatherings for groups of seven or more people – free of charge – if you are interested in organizing one for your community.  Be sure to get in touch with her if you want more information.

©Barbara Cashman 2014     www.DenverElderLaw.org

The Durable Power of Attorney and Financial Abuse of Elders

Four Generations of Family

Four Generations of Family

I’d like to start at the beginning with some terms. I’ve written about them before. . . .

A general durable power of attorney (POA) is an arrangement where one person (the principal) appoints another person (the agent) to act on behalf of the principal regarding matters specified within the scope of the POA.   Under The Uniform Power of Attorney Act, which is Colorado law, powers of attorney executed after Jan. 1, 2010 are by default “durable”  meaning it can survive the disability or incapacity of a principal.  A POA is an important tool people can use to allow others to assist them in the event they need help managing finances.  Another important detail of note is that the POA is also by default a “standing” power.  “Standing” means that the POA can be used as soon as the document is executed by the principal.  This doesn’t mean people rush out to use them.  I usually tell my clients that I hope they never have to use these documents (or more accurately, that their agents will never have to use them) but they are ready to go if needed.  Remember that one of the primary purposes for a durable POA is to keep people out of having to go to probate court for a protective proceeding like a conservatorship. One of my more important questions to a client when considering the use of a POA and who to name as agent concerns trust and accountability.

What is financial abuse of elders?  It can occur on different levels, including; Inadvertent or careless behavior; negligent misuse of a position of responsibility (like agent under a POA); and intentional misuse or conversion of an elder’s money or property.  Colorado’s new law will soon require certain persons to be mandatory reporters of elder abuse.  In Colorado we have AARP ElderWatch, which is a partnership between the Colorado Attorney General’s office and the AARP foundation.  You can get more information about that here.

What are Some Steps toward Prevention?

The National Criminal Justice Reference Service has a good and fairly up to date listing of resources about fraud and financial abuse of the elderly.

It is important to distinguish between types of elder financial abuse: by those scammers who are strangers looking  for easy prey in the form of isolated, lonely, physically or mentally challenged or disabled elders; by adult children, grandchildren or other family members or friends who may be “impatient heirs” who may not be willing to wait until the elder dies to inherit from them.  Temptation is simply too much for many people!

Transparency is another important safeguard for a principal and to help the agent understand there is both assistance and oversight available when needed.  If the agent knows there is likely to be someone “looking over their shoulder” – whether it is another sibling, a professional, or a reporting requirement, this can encourage good habits on the part of the agent that benefit the principal. Other considerations include:

having another set of eyes watching bank and investment accounts

using a professional fiduciary as agent or for bill paying purposes

What makes financial abuse or exploitation of elders difficult to detect?

  • Shame or embarrassment on the part of the elder, particularly when the abuser is a child;
  • Elders often feel a loss of autonomy and have discomfort with vulnerability;
  • Manipulation and Domestic violence type behaviors by person in control of the money; and
  • The fragility of elder’s emotional and physical health.

Elder law attorneys typically have a network of people and both public and private resources that can assist an elder victim of exploitation or abuse.  In a follow up to this post I will talk about the agent’s “job description” and fiduciary duties, along with some ways of detecting elder financial abuse.

 ©Barbara Cashman   2014    www.DenverElderLaw.org

Digital Assets in the Estate and Elder Law Context – Evolving Law in a State of Uncertainty: Part II

In this post, I look particularly at a couple topics that touch on issues that relate to both the agent/conservator (while a person is still living) context (what we elder law types refer to as disabled or incapacitated) as well as the post-mortem (decedent’s estate) context.

Fall Colors at DBG

After reading last week’s post, one of my readers expressed to  me that he thought it was perhaps a bit too much of the big picture and didn’t see how the post hung together.  So, with that helpful observation in mind, I write today’s post with the intent for a slightly more concrete approach. . . .

Today I will focus on two major aspects of digital assets and our thinking about them.  First, I will look at the historical distinction between tangible versus intangible property and how digital assets extend this historical distinction in a new context.  Second, I will briefly examine the intersection of laws that apply to and are involved in our online activities, specifically I’ll take a look at which law applies and in what context-  the federal law and state law sources for internet regulation.

I recently spoke with a colleague who has been practicing for over forty years.  He has a tax law background and I am lucky to consider him part of my “brain trust.”  I liked his comments to me about digital assets, that they are basically just intangible property of different stripes and that this management issue for the decedent estate context can be managed in a way similar to the historical use of a “literary executor” that many writers have employed over the course of history.  I plan to revisit this prospect of “digital executor” in future posts.  Okay, I promised I was going to get more literal in this post, so here goes.

Black’s Law Dictionary (my embossed office copy was published in 1979) gives three useful definitions:

It defines “intangible asset” as: Such values as accrue to a going business as goodwill, trademarks, copyrights, franchises or the like.  A nonphysical, noncurrent asset which exists only in connection with something else, as the goodwill of a business.  For “intangible property” is the following: As used chiefly in the law of taxation, this term means such property as has no intrinsic and marketable value, but is merely the representative or evidence of value, such as certificates of stock, bonds, promissory notes, and franchises.  And so if you’re still scratching your head over this legal term for je ne sais quoi, Black’s offers this final shot under “intangibles:”  property that is a “right” rather than a physical object.  . . This sounds pretty well on point so far, doesn’t it?  So, let’s take a look at the second topic – the fuss about how to regulate the internet.

The Supremacy clause, conflict of laws, etc.  One astute commentator (Jim Lamm, who edits the very astute blog digital passing) has discussed the issue of federal preemption in the digital asset context. Federal preemption derives from the Supremacy Clause of the U.S. Constitution, which makes the U.S. Constitution the supreme law of the land.  Remember that under our federal system each state has its own constitution which is free to provide and protect rights more vigorously than the US Constitution, but below which no state constitution can fall, at the  …. There are two basic types of federal preemption, express and implied.  Express is explicit, when the federal law says “this is the law or federal regulatory regime that applies to a particular are of law.  I am thinking back to a case I was familiar with from federal court.  A good example of this is the Federal Insecticide and Fungicide and Rodenticide Act (FIFRA) which confers exclusive regulatory control of labeling of pesticides on the Environmental Protection Agency.  The states have no authority to regulate labeling under this type of federal preemption.

As you might imagine, even  express preemption gets an occasional workout in the U.S. Supreme Court.  So what about this issue in the context of digital assets?  There is arguably no  federal law that states it (the federal government) is the supreme regulatory scheme for the internet, even if there are in place a number of laws, including criminal statutes, regulating use of the internet.  Here is where we look at implied preemption, and the flavor of this type applicable to the digital assets and internet context is “occupation of the field” preemption, basically where the federal law takes up so much of the “regulatory room” if you will, that there is really nothing substantive left for the states to regulate.  It is a far stretch to consider the federal statutes concerning the use of the internet use as concerning a federal interest (as opposed to state interest) that is entrenched in a federal regulatory and enforcement scheme that is all-embracing in such a way as to leave no room for the individual  states to regulate in any meaningful way.

I will forge ahead with this discussion as it develops and as the Uniform Law Commissioners hone their model act.  This will potentially apply to our probate code in Colorado in several contexts  – for agents and other fiduciaries, for guardians and conservators, trustees, as well as personal representatives.  So, once again, we are left with more questions than answers.  This is one of the primary reasons I love practicing estate and elder law – it is constantly evolving.  So, if I might cast my net out on that far shore as I close this post, let me quote a favorite poet – Rainer Maria Rilke – who had a very insightful comment about the importance of questions in a human life:

..I would like to beg you dear Sir, as well as I can, to have patience with everything unresolved in your heart and to try to love the questions themselves as if they were locked rooms or books written in a very foreign language. Don’t search for the answers, which could not be given to you now, because you would not be able to live them. And the point is to live everything. Live the questions now. Perhaps then, someday far in the future, you will gradually, without even noticing it, live your way into the answer.

       Letters to a Young Poet , by Rainer Maria Rilke, 1903.

 ©Barbara Cashman 2013     www.DenverElderLaw.org

 

 

Digital Assets in the Estate and Elder Law Context – Evolving Law in a State of Uncertainty part I

October clouds in Deer Creek Canyon

 

In this first post, I will explore some of the unsettled and unsettling legal aspects of digital assets.  I am going big picture here.  Digital assets are a new kind of property, coming into existence as such by virtue of the technological and communication advancements that are part of our networked online world.  Like any other property, digital assets – an emerging “digital divide” if you will, have both the power to unite people and to distance us from each other.  Flash mobs, crowd sourcing, playbor and lots of other connections are all new ways of collective communication and concerted action which can be used to usher in positive changes, more democratic participation in previously closed institutions, and many other efforts.  Here’s a good recent example in an 11/5/13 post on the CBA/CLE Legal Connection blogpost about “crowdfunding” securities under the federal Crowdfund Act.   The new federal statute allows crowdfunding, a previously prohibited type of sales of unregistered securities over the internet.  Here’s a link to the new proposed regulations – the SEC wants to hear from you about them!

So back to the people and property connection.  I think that a basic question, as Howard Rheingold writes in his excellent 2012 book “Netsmart” is a question of the degree to which each of us embraces change and participation on an individual level so as to become part of something bigger.  Rheingold’s taxonomy of online collective work includes: (1) networking, (2) coordination, (3) cooperation, and (4) collaboration.  (Netsmart at 153-54.)   Some of this work involves hanging out, messing around, geeking out, networking, collaborating, participating – these are just some of the activities that the digital commons can provide participants.  I think conceptualizing digital assets requires a whole new way of thinking about property in this regard.  This virtual message board, marketplace, library, playground or laboratory – however you characterize it – typically defines the “property” by how it is used.  This is a break from tradition, and while this may not be a time for nostalgia really, but there is a looming sense of challenge for many of us when it can become difficult to disengage.   Unless you can bring yourself to shut off your Smartphone while you are with a loved one, on vacation or the like, and otherwise resist the urge to be plugged in 24/7, it can become a huge challenge  even if you don’t “have to.”  Theories regarding the implication s of networked technologies and its implications for human interaction, our sometimes compromised ability to engage in reflective, contemplative and deep thought, and so to an extent, even human consciousness abound.  Last summer I posted on GriefLink’s blog about  the simple power of listening and simple human presence (a/k/a the heart’s ancient technology).   But wait, this post isn’t about the internet as social experiment, it is about digital assets . . . .  there is a distinction, right?

Before I abandon this foray, let me go down one last philosophical path.  What if we consider the networked society and a means to advance the evolution of humans and our civilization (and yes, I am deliberately choosing to ignore that immense sleazy side of the internet)?   Here I will openly borrow from the final post in a series I wrote for the CBA’s SOLOinCOLO  blog:   Interesting to note in this context is “The Evolution of Cooperation: Competition is Not the Only Force that Shaped Life on Earth,” from the July 2012 issue of Scientific American,  and the article by Martin Nowak, “Why We Help.”  Nowak’s article describes a public goods game (inspired by the “tragedy of the commons” of the late 1960s)  that found that people were more altruistic when: (1) they are convinced (educated) that sacrifices for the common good are needed; (2) they are allowed to make contributions publicly (to enhance reputation); and (3)  they feel they are being watched.  Sorry – but this last one sounds positively theological to me, so I have to mention Pierre Teilhard de Chardin, who also had some very forward-looking ideas about the evolution of humanity and consciousness.

Nowak’s final observation is that “the altruistic spirit always seems to rebuild itself; our moral compasses realign.”  I liked this last comment about evolutionary simulations because it looks to be consistent with Teilhard de Chardin’s observations on the drawing together of noospheric effects and offers much promise for realizing the potential of social networks within the Internet.  I love this connection between Nowak, the mathematical biologist at Harvard; Teilhard, the late Jesuit paleontologist/theologian; and … social media.   That’s a glimpse of the “special world” that is all around us today – at least from my point of view.

The power of connection, of collective action made possible by the internet is indeed a force to be reckoned with, and we need also to account for the ways in which people and relationships are subjected to harm.  This is where the networked age is like a death, the demise of the old “information society” – and we cannot ever go back, or return to who we were before it.  This new place, however, is one of wonder.  It reminds me of a favorite poem by Hafiz, the medieval Persian poet, this excerpt is from “Deepening the Wonder” and is from Daniel Ladinsky’s 1996 book “The Subject Tonight is Love,” a translation of many poems written by Hafiz:

Death is a favor to us,

but our scales have lost their balance.

The impermanence of the body

should give us great clarity,

Deepening the wonder in our senses and eyes

Of this mysterious existence we share

and are surely just traveling through.

                …..

excerpted from The Subject Tonight is Love at 55.

At this point, I will conclude with the theme for the next few posts on this topic, what is digital property, how do we use it (or how is it used by others, sometimes in ways that we do not intend) and how do we manage and protect it?  What do I consider digital property?  The only way to answer this is in the big picture context that is really the only effective way to encompass, intellectually, what is a constantly developing universe: it is any online account you may own or any file that is stored in the cloud.  To be continued . . . .

©Barbara Cashman 2013     www.DenverElderLaw.org

Don’t Miss the 2013 Denver Senior Law Day on Saturday, July 27th!

The Colorado Bar Association, of which I am a proud member, and Continuing Legal Education in Colorado, Inc. and the Denver Bar Association will be hosting the 15th Annual Senior Law Day in Denver on July 27 at the Denver Mart (formerly Denver Merchandise Mart).  Senior Law Day is a huge draw for the public, with lots of informative presentations and booths and plenty of coffee for early risers.  For this year’s event, there are more than thirty informational workshops offered for the public and each person attending will take home a 2013 Senior Law Handbook.  You can register for this event here.

If you can’t make it to the event, you will be able to read chapters to the Senior Law Handbook online at www.seniorlawday.org .  I am a legal sponsor of this event, which is an important public service for seniors and their families.  Sean Bell, Esq., is once again the editor of the well written and informative Senior Law Handbook.  In addition to the sponsors, there will be many exhibitors in attendance.

A new feature of this year’s event will be an “Ask a Lawyer” opportunity during the event that is sponsored by Metro Volunteer Lawyers (MVL).   MVL is an important community resource for people with low incomes.  Its mission is: “To bridge the gap in access to justice by coordinating the provision of pro bono legal services by volunteer lawyers within the Denver Metro Area to people who could not otherwise afford legal services for their civil legal issues.”  Over the years I have provided my services to people through this important and worthwhile program.  As a new feature of Senior Law Day, attendees can sign up for a 15-Minute Ask a Lawyer Session with an attorney that will be limited to Trust and Estate and Elder Law issues.

Don’t miss this informative and accessible way to find out more about legal issues and related matters facing seniors in Colorado!

June 15 is World Elder Abuse Awareness Day

The National Center on Elder Abuse of the Administration on Aging has declared June 15 World Elder Abuse Awareness Day.  Go to this link to find a local activity.   Yes, since this is a “World” day, there is also a United Nations declaration and such commemorations started in 2006 – in case you’re wondering.  The U.S. HHS Administration on Aging suggests three ways to be involved:

(1) Developing an educational program or press conference;

(2) Volunteering to call or visit an isolated senior; or

(3) Submitting an editorial or press release to your local newspaper to create awareness of elder abuse, neglect, and exploitation.

I hope this blog post meets the third criterion!

You can find excellent resources and stay posted on Colorado developments by going to the website of the Colorado Coalition for Elder Rights & Abuse Prevention  and you can sign up for their e-newsletter there.  In my recent visit to the site there was a link to a page entitled “culture change” which addresses person-centered care.  You can click here  for my blog post refresher on that topic and its originator, Tom Kitwood.  The culture change that the CCERAP site describes is about focusing on the needs of the individuals requiring care and those working closely with them.  This challenge is one we face on personal, community, national and global levels with the ever-growing number of elders in our communities.  It forces us to think about how we would want to be treated in similar circumstances.

So on the topic of elder abuse and the vulnerability of a particular group of elders – those experiencing cognitive decline associated with a dementia disease process, I will take a look at Alzheimer’s Disease and Recent Observations from Biophysics.

Okay, I don’t think I’ve ever typed the word “biophysics” but there it is. I subscribe to Scientific American’s email news and there was featured a guest blog post by Frank Ferrone entitled “Dangerous Braids that Tangle in Brains and Veins.”  You can read it here.   This article is about the importance of research, the accumulation of scientific knowledge and connections that can be made at a later date when more research is accomplished or perhaps investigatory techniques, often technological, allow more thorough information to be gathered.  Alzheimer’s Disease is a very particular type of dementia and it is only conclusively diagnosed post-mortem of those who had the disease.  Its calling card is the beta-amyloid protein molecule  which causes the plaques and tangles associated with the shrinkage of brain function. It turns out that these braided molecules share a lethal trait with the deadly molecules associated with sickle-cell disease, which allows both of these molecules to quickly build their housing (polymers) and spread their disease to a wider area.  What Ferrone concludes, hence the biophysics moniker – is that the two diseases [Alzheimer’s and sickle cell], disparate in manifestation, obey the same fundamental rules.  This is what Biophysics is all about, the discovery of fundamental physical laws that govern the behavior of diverse biological systems.   Ferrone’s discovery (made with others), published back in 1985,  was relied upon by Alzheimer’s researchers at Cambridge University for their new discovery.

Biophysics and biochemistry figure prominently in research in dementia – its proper diagnosis, treatment and of course prevention. Interested in the aging process in terms of entropy, mitochondrial decay? Read this excerpt.

All this overlap reminds me of a blog post I did for SoloinColo on The Hero’s Journey, in the Facebook for Lawyers context. . . .  where I described our networked society in the mythological term “special world.” That post (part of a twelve part series) can be read here  and referred to an article by a mathematical biologist.  Perhaps Alzheimer’s research will continue to be a cooperative proving ground in helpful ways.  If research on the disease can promote cooperation in substantial and significant ways and our ideas about identity and functioning are challenged with an ever-growing number of elder-boomers – then perhaps there is hope for us!

Yes, I could publish this post without a poem, but with no shortage of beautiful sources . . .  why would I?  This one (known as II,16) is by Rainer Maria Rilke (yes, he is one of my favorites):

How surely gravity’s law,

strong as an ocean current,

takes hold of even the strongest thing

and pulls it toward the heart of the world.

Each thing –

each stone, blossom, child –

is held in place.

Only we, in our arrogance,

push out beyond what we belong to

for some empty freedom.

If we surrendered

to earth’s intelligence

we could rise up rooted, like trees.

Instead we entangle ourselves

in knots of our own making

and struggle, lonely and confused.

So, like children, we begin again

to learn from the things,

because they are in God’s heart;

they have never left him.

This is what the things can teach us:

to fall,

patiently to trust our heaviness.

Even a bird has to do that

before he can fly.

     From Rilke’s Book of Hours: Love Poems to God, translated by Anita Barrows and Joanna Macy.

Life is uncertain and old age – even more so.  Perhaps old age and its inward pulling-ness is a kind of gravity, a force that we all share but one that isn’t easily recognized or understood.  Is this because we each live our own lives, separately and pulling away, or perhaps as a result of that long-term denial.  How difficult would it be to trust that gravity, that heaviness that we can look at things – our lives and our relationships – in new ways . . .  even in our oldness (or perhaps only as a result of it).

©Barbara Cashman     www.DenverElderLaw.org

Business Succession Planning for Breakfast

 

 

Last Thursday morning I attended a breakfast program hosted by The Denver Foundation at the J.W. Marriott.  The program was entitled “Beyond Tax Law: Non-tax Aspect of Business Succession Planning” and was presented by Stephan Leimberg.  I have been going to these breakfast programs for several years now and they always feature excellent speakers and timely topics.  The Denver Foundation also hosts the monthly meetings of The Women’s Estate Planning Council of which I am a member.

So – what about Leimberg’s presentation?  It was pretty snappy and hit home the focus that attorneys and other professional advisors need to consider and take to heart when dealing with small businesses – especially family businesses: focus on the tax and other technical aspects of business succession and exclude family and relationship dynamics at your (and the family business) peril!

In his materials, Leimberg presented some eye-opening facts – for example that one-third of the Fortune 500 is family-owned and that family businesses purchase more than $1 Trillion of goods and services annually.  Part of the presentation was about identifying the traits of the family businesses (about 55% of business are family controlled) that have been successful and how they managed and successfully manage to bridge the family/business divide.

In a family business context, there is not only the business future at stake but also the functioning of the relationships of the family members – both inside and outside the business context.  Part of Leimberg’s presentation focused on the reality-based aspects of a business:

will a business die with its owner?

should the family risk running the business?

on what is the success of the business dependent?

is there a strategy in place to overcome inertia?

What about all those different hats?  I will make reference here to “hats” thinking of DeBono’s six hat parallel thinking….

    • WHITE: facts and information
    • RED: feelings and emotions
    • BLACK: critical analysis of logical flaws
    • YELLOW: positive logic applied to seek harmony or benefits
    • GREEN: new idea or perspective, creativity
    • BLUE: the big picture

Edward  DeBono, Six Thinking Hats: An Essential Approach to Business Management (1985: Little, Brown) His idea for parallel thinking is that the brain can be “sensitized” to think in broader ways.   Okay, what also comes to mind is a kid lit fave of mine: Caps for Sale, by Esphyr Slobodkina  (remember the cap peddler and the mischievous monkeys?).

I thought Leimberg’s numbers about how many family businesses have done succession planning were a bit high.  Perhaps this is because of the relative size of the family business he was looking at.  When I presented at the CBA/CLE program “Advising Small Companies” in February  I looked at figures for small businesses that were akin to estate planning numbers for parents of young children – the vast majority of both groups, who are in greatest need of succession or estate planning – have nothing in place.  The Small Business Administration has some helpful resources available here.   What I covered in my February CLE presentation were “the four D’s”:

          • Detour
          • Dissolution
          • Disability
          • Death

Things don’t always go as planned!

“I feel as if I were a piece in a game of chess, when my opponent says of it: That piece cannot be moved.” 

Soren Kierkegaard

My main focus at that CLE  presentation was on discussing techniques to motivate clients who are focused on the success of their businesses to think beyond survival mode and make a plan for the unplanned and the inevitable.  For a definition of business succession planning, I used Louis Mezzullo’s (American College of Trust and Estate Counsel President) definition: “Planning for the orderly transfer of the management and the ownership of a business to new managers and new owners to avoid a liquidation of the business as well as unnecessary taxes and other expenses, and in a manner that carries out the family’s nontax objectives.”

Bottom line for my takeaway of Leimberg’s presentation – the importance of getting family business clients to really start thinking about succession planning (estate planning for a business) and its importance from a strategic point of view.  I liked this approach, which emphasizes relationship dynamics in the success or failure of a business – whether it is a family business or a small business that is not family owned.  Following a course according to a strategy is always preferable to reacting to an unforeseen event or an emergency.

©Barbara Cashman     www.DenverElderLaw.org

The Music of Family Relationships

It’s springtime somewhere, but definitely not in Denver this morning where the snow from Monday’s storm has melted only a little.  I got a blizzard alert on my iPhone at about 7:30 this morning!  It’s coming down right now.  We do need the moisture and I, for one, am not anxious to get started on the lawn mowing anytime soon. . . .  So here’s a picture of spring that I took last week in Ireland.

For all of you skeptics (or people who have been to Ireland before) the weather was beautiful and I took many pictures with visible blue sky! I took this picture on the grounds of Glenstal Abbey, where I was lucky enough to spend several days in a warm and welcoming Benedictine community.  I took this picture after walking back from a visit to Mass Rock.  There Irish soprano Noirin Ni Riain told our group about the history of the Mass Rock. She alo sang to us and finished by leading us in song.  She has an amazing voice and her music not only speaks to the soul, but moves it.  I purchased three of her CD’s when I was there and they are all available from Sounds True in Boulder.  Her songs are sung in Irish, but I find that the most moving music is not in my mother tongue of English.  I’m also thinking of Gorecki’s Third Symphony which you can listen to part of it (with beautiful visual accompaniment) here .  My favorite is the original million-seller with soprano Dawn Upshaw.

Music and spring and travel. . . .  That leads me also to an experience I had some years ago when I was visiting a local nursing home in my capacity as JFS para-chaplain.  I was there to lead a service and because I was lucky enough to be accompanied by a guitarist, I sang an old Yiddish song called Oif’n Prippitchik.  About midway into the song something very interesting happened.  One of the residents who attended was a woman with very advanced dementia who, it was reported to me later, had not spoken in over a year.  She started first to hum and then sing along with the song.  She spoke about her grandmother.  The song had transported her right back to a happy memory of childhood, when her grandmother had sung that song to her.  By the means of music, hearing that melody – she was moved in a sort of time travel.  I was most certainly moved witnessing that event.  Another story of music as a means of transport for the spirit comes to mind, it is from Megory Anderson’s book Sacred Dying.

So this post is about connections I suppose, and the beauty of writing blog posts is that I can incorporate things like . . . . a bumper sticker that I saw this morning on my way to work.  It read “love lasts longer than life.”  I nodded in agreement.  This post is also about new varieties of living arrangements in this country, which hearken back to some very old traditional arrangements.  I thought about the post after reading an article about it in the April 2013 AARP bulletin.

The title of the April Bulletin’s article is “Saving Money by Living Together,” and it is about money saving, but I suspect that the approximately 51 million Americans who live in a house with at least two generations in a single home, and many of these most likely have three generations, are enjoying more than just money savings from the arrangement.  The money savings factor in substantially for caring for an elder parent, and the arrangement also give an adult child or children the opportunity to give back to the aging parent some of the care they received from childhood.  This can be a beautiful way of modeling productive multigenerational relationships for young children.   I think it also can foster a productive stage of elderhood for many grandparents, a topic I’ve blogged about previously.

One of the biggest challenges that we face as a society is how to take care of the burgeoning number of elders, some of whom have meager savings and many whose savings have simply run out over the course of a long number of years of paying for health care not covered by Medicare and costs of living in retirement.  I sometimes hear the offhand lament “we don’t take care of our elders in this country,” to which I often quickly respond with the numbers of elders and the fact that the vast majority of those elders needing care receive some or all of their care from unpaid family members.  One of the side effects of longevity is reworking family relationships to support elders in their later years.  As an estate planning and elder law attorney, there are a number of legal arrangements that an individual and family can put in place to manage the legal aspects of these often complicated financial, medical and emotional considerations.  In a multigenerational housing arrangement, it is good to start with a plan.  I liked this article’s list of tips for making such an arrangement work which include:  discuss expectations and responsibilities like financial and privacy issues; talk about parental and filial (adult child to parent) responsibilities; check zoning restrictions about renovations for attached dwellings; and share the responsibilities.  I would also add that it might be wise to have a regular place for the family members to meet all together to ensure things are working and so any conflict can be managed productively and not allowed to proliferate.   Some of my clients have made such arrangements and they are usually mutually beneficial.  It is interesting to note the change in structure that economic and age-related considerations can have for families – for so many of us, it brings our dear ones closer to us.

©Barbara Cashman     www.DenverElderLaw.org