Denver estate planning terminal illness Archives - The Law Office of Barbara E. Cashman

Dreaming Into Dying: A Practice for Letting Go

Date October 12, 2017

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Patience

I thought since last week I wrote on the topic of dreaming into retirement, well – why not take it a step further and look at dreams of the dying or dreams of death?

Research Into Dreams of the Dying

Here’s an interesting article from the New York Times February 2, 2016. The story is about some work from a team of researchers led by Dr. Christopher Kerr at Hospice Buffalo. The study was conducted with fifty-nine terminally ill patients, nearly all of whom reported having dreams or visions, most of which were comforting. The article noted that

The dreams and visions loosely sorted into categories: opportunities to engage with the deceased; loved ones “waiting;” unfinished business. Themes of love, given or withheld, coursed through the dreams, as did the need for resolution and even forgiveness. In their dreams, patients were reassured that they had been good parents, children and workers. They packed boxes, preparing for journeys, and, like Mr. Majors, often traveled with dear companions as guides. Although many patients said they rarely remembered their dreams, these they could not forget.

Reading about “traveling companions” reminded me of a dream my father related to me some weeks before he passed away.

Dreams and Dying as Part of Life’s Process Toward Completion

The article and the research it discusses are remarkable because it addresses one of the taboo subjects around dying as a life process – is there preparation for it with our psyche’s assistance (through dreams or visions) and whether persons sometimes know in advance that death is imminent (notwithstanding the lack of knowledge of an illness). Our cause and effect, materialist-objectivist obsession with measuring what we can know (or pretend to know, if enough people are in agreement) generally simply denies outright the mystery of the end of life. But as more people die at home or with hospice and palliative care providers who are not leading a pitched against the “enemy” – collectively disease and death – it seems that we are gaining more personal experience with death and dying. It might represent a gradual questioning or moving away from the model of technocratic dying in hospitals, where expressions of our relationship with and compassion for dying loved ones generally had to be subjected to the intrusions of our medical-industrial establishment and its protocols administered by “experts.”

A Scientific American Mind article entitled “Vivid Dreams Comfort the Dying” also explored Dr. Kerr’s work, which was published in the American Journal of Hospice & Palliative Care. It seems that the conclusions are likely to be consistent with dreams of dying and deathbed visions and visitations recorded throughout history: that most of the time the person is comforted by the dream or vision of their impending demise, as if Psyche were assisting with the transitions as a kind of midwife.

The Experience Is More Likely to be Labelled a “Vision” if it is Comforting to the Dying Person

If the experience is upsetting to the person, typically a patient receiving hospice care, it might otherwise be termed a “hallucination” or “delirium.” But I like the unequivocal language of this post from Crossroads Hospice about end-of-life visions:

These visions are not hallucinations or a reaction to medication. The most important thing to do if your loved one is seeing visions or having visitation dreams is to acknowledge and support them. Do not argue with your loved one about the experience, correct them, or try to explain the vision. Do not panic as that can upset your loved one. Instead, take them at their word and encourage them to share the experience with you.

“As a caregiver, it is not our job to prove, disprove, or do experiments,” says Carolyn. “We are there to provide support and comfort.

In most cases, these end-of-life visions are indeed a source of great comfort to the person experiencing them.

It’s reassuring to know that as more people are able to die at home with support from hospice care provided, this aspect of the death taboo is losing more of its sting. A link to one last resource guide is in order, this one McGill University called “Nearing the End of Life: A Guide for Relatives and Friends of the Dying.”

Obstacles to Successful Elderhood: Skilled Nursing Care

Date September 22, 2016

Posted by Barb Cashman

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Dome of Aspiration

I’m returning to the theme I introduced a couple months back about successful elderhood and its obstacles. Today I’m looking at institutionalized care of American elders and in particular the costs versus care conundrum.

I recently came across two unrelated articles in the space of a single day and immediately saw a connection. The first was this article from the New York Times, about the privatization of InnovAge, formerly a not-for-profit (which used to be known as Total Longterm Care) in the Denver area and the second article from the ABA Journal, about how the imposition of routine fines having little or no impact on deterring abuses at skilled nursing facilities.

Keep in mind that skilled nursing facilities (nursing homes) are some of the most regulated business in this country – regulated by both the feds through Medicare and Medicaid, as well as by state licensing and regulatory authorities. Do these regulatory regimes lead to better outcomes? The ABA Journal article would tend to weigh in on the “no” side of this answer. . . That seems to be an open question, particularly in light of the shocking circumstances surrounding the death of a young mentally ill woman in SNF care – Letasha Mims, as described in the ABA Journal article above.

As an elder law attorney, I am aware of and often share the information collected by different state and local agencies about violations at nursing homes. In case you’re wondering about Colorado nursing homes, here is a link to the CDPHE’s page about licensing and deficiencies. Medicare has a handy tool to compare nursing homes here. You can enter a zip code and compare facilities quickly.

The story of Letasha Mims, however, makes me question the helpfulness and accuracy of that information collected by our regulatory agencies. But the lingering question is a difficult one: when an elder or disabled person lives in a SNF which is a for-profit business, there is a nagging question about the adequacy of staffing at those facilities. I am thinking of a recent book I came across – Elder Care Journey, (published in 2016 by SUNY Press) by Laura Katz Olson. What Olson confronted in managing her elderly her mother’s care is something that faces each of us who has ever had to make the difficult choice of arranging for the care of a family member, like an elder parent, in a skilled nursing facility.

Olson writes eloquently about the personal journey of getting the best care for her frail mother, but what is most relevant for this discussion is the penultimate chapter of the book entitled “Peeling the Onion.” In that chapter she looks at the system of care for elders including skilled nursing facilities (nursing homes). She writes that the 2012 statistics indicate that sixty-nine percent of SNFs are for-profit organizations (mostly chains), but she reports that there is a recent trend toward private equity firms (like the one which is reported to have purchased InnovAge above) buying SNFs. Olson notes that private equity firms have goals that include making quick profit so the business can be sold for a profit within five years; typically have protections against liability for substandard care which relate to the individual facility and not the chain which is the parent of the SNF; and private equity firms, unlike publicly traded companies, have little transparency about the inner workings of their assets, profits and ownership. These important details don’t just seem to be at odds with providing adequate care, and they will likely contribute to a burgeoning number of substandard care.

Olson quotes at 152 (a 2001 study in the American Journal of Public Health) that “rates of severe deficiencies in investor-owned facilities were 40.5 percent higher than at nonprofit homes and 35.8 percent higher than at public homes.” What will the numbers be for the present situation? This will likely be a topic of a later post. P Perhaps a relevant question for an adult child or anyone researching placement at a skilled nursing facility is the simple one of whether it is a for-profit facility and if it is, whether it is publicly-held or owned by a private equity firm. Profit maximization for investors does not seem to be consistent with providing good care for our frail elders.

I focus on the SNF because of the institutionalized nature of such a facility and the relatively high level of medical care which is supposed to be provided. And if you were hoping that Medicare was somehow an equalizer when it comes to insurance care for elders . . . think again! There is a growing shortage of doctors, particularly primary care physicians for elders, who take new Medicare patients. For those elders in hospitals who are suffering from terminal conditions, here is a recent article from Health News, which addresses the shortage in hospitals of palliative and hospice care medical teams who are trained to discuss end-of-life issues, effectively manage patients’ pain and otherwise address the emotional and spiritual needs of those at the end of their lives. There just isn’t enough money in providing palliative care under our Medicare program of incentivizing big intervention and the low-tech, high touch, human-fueled intervention of hospice and palliative care providers. This reminds me of Atul Gawande’s observations in Being Mortal and Katy Butler’s book about her father and his health crises, Knocking on Heaven’s Door.

And what about Medicaid, that government long term care program that many people are curious about for their elder family members . . . Some studies have demonstrated worse outcomes for those Medicaid patients – whose doctors receive only a fraction of what other better insured patients receive. Medicare patients didn’t seem to fare much better. In case you’re wondering whether this divide continues, here’s an article from last month about worse outcomes for Medicare and Medicaid myocardial infarction patients. We are spending money for these Medicare and Medicaid services, yet so many of the needs of the people receiving these services goes unmet . . . what gives?!

Sorry, this post appears to be largely about obstacles, but perhaps they are placed before us so as to clarify what it is we need to fix for our loved ones and for ourselves. Er, maybe this is an opportunity after all – but only if we make it one. One thing is certain – it will not be an easy fix.

Guardianship of an Elder – Some Important Considerations

Date August 17, 2016

Posted by Barb Cashman

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Delicate Flower

As the number of retirement age baby boomers continues to rise, we continue to grow our unprecedented proportion of old people in our population. What does this mean for our future? Well, lots of different things, but I’m focusing on an often neglected side-effect of our longevity: the likelihood of incapacity.

Capacity itself is a broad topic in the law. In my area of practice – we typically follow the question whether someone has (or had) capacity with the focusing query – capacity to do what? Execute a power of attorney, sign a will, direct one’s medical care? Here’s a link to a document from the American Geriatrics Society about medical capacity that is an excellent Q&A on the topic of capacity in the medical decision-making context.

There are often many ways to enhance someone’s capacity if they are facing cognitive challenges. Some of these enhancements can assist greatly where the deficit in capacity is of a more temporary nature, such as confusion. Confusion can have a wide array of sources including alcohol or substance intoxication; poor heart or lung function (resulting in e.g., hypoxia); malnutrition or dehydration; blood sugar too low or too high; medications not managed effectively or withdrawal of medication; head injury or other bodily trauma; infection. Insomnia; and a number of other diseases and conditions. I mention these to contrast them with a kind of capacity that is typically not temporary and likely to diminish further as the underlying disease progresses or as the condition worsens. The kind of incapacity I am considering is not the temporary or reversible kind.

There are a number of medical conditions or diseases which can affect capacity as well. For example, there are several types of dementia including Alzheimer’s disease, alcoholic dementia, vascular dementia, frontotemporal dementia (Pick’s disease is one example) and Diffuse Lewy Body dementia which can occur with Parkinson’s disease. For our purposes in Colorado, one relevant statutory reference is to C.R.S. 15-14-102(5), which concerns the definitions for protective proceedings:

“Incapacitated person” means an individual other than a minor, who is unable to effectively receive or evaluate information or both or make or communicate decisions to such an extent that the individual lacks the ability to satisfy essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance.

In the context of the medical conditions and diseases which cause dementia, a major goal of a capacity determination is to not just identify the disease, condition or injury which is the cause of the ongoing dementia (and which often progressively worsens over time), but to identify and promote the AIP’s self-determination and other rights to the extent possible. Planning for the future can typically be accomplished even after a diagnosis or dementia such as Alzheimer’s. The Alzheimer’s Association has a helpful brochure here.

While a person with dementia faces a host of challenges to their autonomy and self-management of activities of daily living (ADL), appointment of a guardian for an alleged incapacitated person need not necessarily be a self-fulfilling prophecy in that taking the AIP’s rights away makes them less competent.

Here is a link to the Colorado Judicial Branch’s website which contains helpful information about adult guardianship in Colorado and the probate court process known as “protective proceedings.” The Guardianship Alliance of Colorado also has helpful resources, particularly pertaining to the expectations and duties of a guardian for an adult. Finally, here’s a link to the 2016 Senior Law Handbook, published by the Colorado Bar Association. Chapter 26 is devoted to guardianship of adults.

So what is the overall nature of an adult guardianship proceeding? It is called a protective proceeding because its underlying aim is to protect the well-being of vulnerable adults. This protection comes at a steep price however, the near complete stripping of civil rights of the AIP. The ward will retain the right to vote, however. So what is the task of a petitioner (the person seeking a guardianship) and what is the court’s role? Within the context of protecting a vulnerable individual and based on all the cognitive and other deficits which prevent the person from functioning at an autonomous level, there are many losses sustained. Amidst these losses, however, is the person’s ongoing right to self-determination. Self-determination is an ancient right as far as the law goes, part of the inviolable rights which set apart humankind from other beings in the animal kingdom.

Self-determination is something not often discussed except in the most desperate of circumstances, hence its relevance to this discussion. A basic precept of international human rights law (particularly in the post-colonial era), in our country’s history, it has been relevant to American Indian peoples, the disabled and other marginalized groups in our legal history and is enshrined in many countries’ constitutions.

In the future, I will be taking a further look at how the self-determination of a ward (after judicial determination of incapacity) can be supported by a guardian.

The Importance of Solo and Small Firm Attorney Disability and Estate Planning- part 1

Date January 21, 2015

Posted by Barb Cashman

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My Old Girl

Well, it seems my Solo Attorney Estate Plan posts are few and far between! Strange when I consider that I have usually presented on the topic at continuing legal education (CLE) programs at least a couple times a year. I’m always updating my materials (and looking for more cartoons about death and dying) and am particularly grateful to my colleague Mark Masters, a community resource for trust and estate lawyers who is of counsel at Glatstein & O’Brien. Mark was kind enough in December to take a close look at my forms that I use in my CLE presentations to get the planning going. Though I have shared these forms over the years with dozens of attorneys, I am always looking for comments and suggestions. I will be presenting on Friday at the ABI Rocky Mountain Bankruptcy Conference, January 23, 2015 as a panel member of Consumer Workshop III: Practical and Ethical Issues in Succession Planning.

The other panel members include Charles “Chip” Mortimer, Jr. from the Office of Attorney Regulation Counsel, Colorado Supreme Court, Mark Dennis, of Dennis & Co., P.C. and our moderator, Nancy Miller, of Nemirow Perez.

As an estate and elder law attorney, I am familiar with detour, dissolution, disability and death. I am one of a small number (as far as I can tell) of attorneys who has a plan of some sort in place. Fact is, most people put off thinking about these things and making plans. I think it proves that lawyers are people too. What are the barriers to making a plan? Well, there are many. There is the first hurdle of the emotional issues we face in coming to terms with uncertain certainties (death) and certain uncertainties (some catastrophe or a disability of a physical or cognitive variety). This freezes many of us right in our tracks. It may be the biggest reason that most people die without any estate plan in place. Perhaps you have heard the estate planners’ adage about the people most in need of estate planning (people with young children and small business owners) being the least likely to have it? Many of us, especially the solo and small firm types, have kids or family members who depend on us and our law practice as a source of income. We need to make our own plans.

I don’t like to scare people, and so that is one of the reasons I share my forms – it’s kind of a “hey kids, try this at home” approach. For this post I will begin with the end in mind – yes, the plan itself, and a few documents that are must haves. Where to start? Well, I recommend Rudyard Kipling’s six honest serving men to help overcome that most potent physical and psychological force – inertia:

I keep six honest serving-men

(They taught me all I knew);

Their names are What and Why and When

And How and Where and Who.

. . .

The Elephant’s Child, by Rudyard Kipling.

Let’s start at the beginning with WHAT. . . this is the most important part to begin with. What do you want to happen in the event of your disability, incapacity or death? You as the person making the plan will sometimes be referred to as the planning attorney or the affected lawyer. I know, the second moniker doesn’t sound so nice. The person you have selected to help you will be known as the assisting lawyer. Here are a few questions to get the ball rolling.

What will happen if you become disabled? Begin with a conversation with another lawyer or perhaps a staff member about how to make arrangements for you, a/k/a your law firm, as an affected lawyer or law firm to continue, close, or transfer your practice on your behalf.
What can you put in place to cover your disability? Have appropriate powers of attorney in place so that your assisting lawyer(s) can step in if needed to run your practice. They will need to be able to sign checks, handle the COLTAF accounts, manage employees, and generally conduct your law practice business on your behalf.
What will happen to your law practice upon your death? Consider naming at least one personal representative in your will who is a lawyer to be charged with the responsibility of selling or closing the practice.
What can you do now that could help your assisting attorney? Maintain an easily understandable system of client records to help the assisting or successor lawyer to carry out his or her responsibilities.

Sure, there’s the detail of how your assisting attorney will get paid, but don’t let that detail hold you back!

The second serving man is WHY.

Think of this planning as putting in place a management plan. Even if you don’t have a business plan, let alone a management plan for your current practice, it is imperative that you get one for these “if” and the “when” scenarios. Think of the plan as putting together a management team. They will manage according to the plan you have put in place.

Whether you have a plan [or not] should be a conscious choice. I know this sounds familiar to all of you reading this because, well . . . many of us do this planning for a living and some of us do litigation when there wasn’t a plan or a badly constructed plan. So, at the risk of singling you out as your own cautionary tale, wouldn’t you rather make a conscious and deliberate decision? It doesn’t have to be perfect and it can be changed and updated as needed. What it is that fits your goals, personality, your business plan and your longevity and estate planning goals? Most of us would rather be in charge of deciding this and not leaving it to be a burden on someone else. Here are a few “why” things to consider – just in case you forgot that you have to think about the same things as your clients:

Longevity planning (for incapacity or disability to avoid guardianship, conservatorship or OARC appointment of inventory counsel)
Making a will or trust that addresses or has provision relating to your law practice
Tax issues
Providing for some financial management in the event the firm can go on without you
Caring for and protecting beneficiaries with a stream of income or other benefit they might be depending on
Considering carefully and choosing your key people: agents, assisting lawyers, personal representatives, trustees, etc.
Maintaining privacy and confidentiality during times of uncertainty or transition
Ensuring there is no breach of fiduciary duty owed to clients by the lawyer or law firm

Kipling’s third serving man is WHEN.

There is no time like the present! Some would argue that there is no other time besides the present, that the rest of it is . . . theoretical. So get busy and start now.

That’s all I can fit in this post for now. . . . stay tuned for the continuation!

©Barbara Cashman 2015 www.DenverElderLaw.org

Denial of Aging and Death as Source of Conflict

Date October 8, 2014

Posted by Barb Cashman

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Centranthus or Jupiter’s Beard

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

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

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

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

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

The contemporary view of conflict styles lists five basic styles:

Avoidance (a/k/a denial)

Accommodation

Compromise

Competition

Collaboration

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

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

Yellow birds, flocked to the earth,

fluttering to light, leaving to the air

her emptiness, as wind gives you leave

to land, brothers and sisters singing,

to the great green reception,

your welcome home.

Great space brings such joy, the

opening of the thick and heavy, the

beauty whose richness obscured, now

cleared—outbreath of the inbreath—to

breathe in without restriction, with

the freedom of the letting go.

So our angel unfurls her wings,

exultant in the wild air, beating as

breathing, lifting into the morning light—

soaring as walking, wide and wild, our

arms swinging, above and below

joined, one body beloved.

So I pick my way through the

Garden paths, past empty vines, under

the frosted purple grapes, hearing the

hawk’s cry, seeing his wings soar,

knowing as my feet trod every color’s

leaves, here I am in heaven.

By Richard Wehrman (with gracious permission from the author)

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

©Barbara Cashman 2014 www.DenverElderLaw.org

Jefferson County Senior Law Day is Saturday, June 7, 2014.

Date June 4, 2014

Posted by Barb Cashman

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Wyoming Cowgirls circa 1943

The 4^th Annual Jefferson County Senior Law Day will be held at Faith Bible Chapel, located at 63^rd and Ward Road, Arvada, Colorado, beginning in the Worship Center at 8:00 a.m. The opening session is from 8:00 a.m. to 8:45 a.m. and will feature First Judicial District Attorney Peter Weir, Channel 9 investigative reporter Chris Vanderveen, and Jefferson County Commissioner Faye Griffin.

This public service announcement does have a bit of self-promotion as I am presenting on financial powers of attorney and conservatorships . . . !

Session 1 workshops will be held from 9:00 to 9:45, Session 2 workshops will be held from 10:00 to 10:45, and Session 3 workshops will be held from 11:00 to 11:45. Session four has three different presentations from 1:00 – 1:45.

Here’s a sneak peek at the presentations for the first session:

Probate: Perspective from the Bench The Honorable Chief Judge Stephen M. Munsinger

Jefferson County District Court

Estate Planning Basics: Wills and Trusts Lisa Eastin, Esq.

Maintaining Your Independence at Home Michele M. Lawonn, Esq.

Prevention and Mandatory Reporting of Elder Abuse Candace K. Werth, Esq.

Jennifer Clark

Joan Stein

District Attorney’s Office

Elder Abuse Unit

When Someone Dies: Medical and Legal Issues Carl A. Blesch, M.M.S., P.A.,

District Attorney’s Office

And the second session features:

Planning Ahead for Serious Illness and Beyond: Conversations, Decisions, and Advanced Directives Susan Fox, Esq. and

Jennifer Ballentine, MA

Role of Public Administrator and Probate Administration Virginia Frazer-Abel, Esq.

Jefferson County Public Administrator

A Consumer’s Guide to Choosing Nursing Homes and Assisted Living Facilities Mary Catherine Rabbitt, Esq.

Ayo Labode, Esq.

Fighting Back Against Identity Theft Cary S. Johnson

Director: Crime Prevention

District Attorney’s Office

Later Life Relationships Christine J. Law, Esq.

Julia Griffith McVey, Esq

And the third session:

Medicare Update William B. Kistler, EMBA

Financial Power-of-Attorney & Conservatorship Barbara Cashman, Esq.

Prevention of Fraud and Scams Jessica Beren

Detective

Westminster Police Department

Social Security Dawn R. Hewitt, Esq.

Lunch is from 12:00 to 12:45 in the gymnasium on the lower level. Finally, there are a few sessions after lunch:

Lifelong Learning and the Aging Brain Zane Robertson

End of Life Planning Catherine A. Silburn, Esq.

Medicaid Update Claire E. Dineen, Esq.

Kathleen A. Negri, Esq

But wait . . . . there’s more! There will be two sessions of “Ask-an-Attorney” – the first from 9:00 -10:30 and the second from 10:30 – 12:00 where around eight attorneys will be available for short consultations. Ask –an-Elder Law Attorney is a regular feature at the Jefferson County courthouse in Golden. Several colleagues and I take turns with making ourselves available for these sessions in Golden. Friendly and helpful court staff are also available to answer questions about guardianships and conservatorships as an extension of the self-help center in the courthouse for probate matters. Please attend this informative event if you can!

Baby Boomers, Longevity and . . . Marital Agreements

Date February 19, 2014

Posted by Barb Cashman

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La Mia Famiglia – Gava e Fornelli

You might be puzzling over my title – but rest assured that with the divorce boom among baby boomers, there will undoubtedly be more marital agreements being written for middle class or moderate income couples. Most marital agreements (a/k/a “prenups”) are relevant for estate planning purposes and so most of them tend to be drafted by estate planning attorneys and not so many by family law attorneys. And in case you’re wondering, there is no “standard form” for such an arrangement as the circumstances are as varied as the couple entering into the agreement.

Historically, marital agreements were more along the lines of blueprints for divorce. Some still retain that character, but well-drafted agreements tend to address the marital arrangement as it progresses through time, what a divorcing spouse will be entitled to after five years, ten years of marriage and of course – what those inheritance rights are. The interesting fact about these agreements is that many couples will get them prior to the marriage or soon into their marriage and then will simply forget about the document and often draft other legal arrangements or take actions inconsistent with the agreement. A will’s provisions can have interesting effects on the marital agreement and marital agreements that are not well-maintained can be problematic on a number of levels.

Last week Jim Bailey, a Denver attorney who litigates marital agreements, presented to the Women’s Estate Planning Council an insightful overview of the new Colorado legislation regarding marital agreements. You can read the House Bill (13-1204) concerning the Uniform Premarital and Marital Agreement Act here.

In a nutshell, one of the more interesting details for the new law is the specificity of the waiver provision, which states:

If you sign this agreement, you may be:

Giving up your right to be supported by the person you are marrying or to whom you are married.
Giving up your right to ownership or control of money and property.
Agreeing to pay bills and debts of the person you are marrying or to whom you are married.
Giving up your right to money and property if your marriage ends or the person to whom you are married dies.
Giving up your right to have your legal fees paid.

Colo. Rev. Stat. Ann. § 14-2-309 (West).

Interesting to think about the focus of marital agreements on financial matters as differences over finances is often cited as a major or contributing factor to divorce. There was also a comment by Jim Bailey about men tending to focus on the assets while women tend to focus on the relationship….

Bottom line to keep in mind is that in the dissolution of marriage context, the domestic relations court will often very carefully review a marital agreement – so if you’re thinking about one, make it good.

And what about those pesky non-legal considerations for divorcing boomers. . . . ?

Who you gonna call? Who will a divorced person name as their health care agent or agent under a financial power of attorney after they have divorced? Divorce is a death of the marital relationship and while many of us can have amicable breakups and positive relationships, we are made “legal strangers” to a former spouse. These decisions are important but difficult to consider – who we will choose to help us out in case of emergency? We will all die someday, but the fact is with increasing longevity, a majority of people – including those youth-glorifying baby boomers – will be disabled or incapacitated for some period during life. This is one of the biggest reasons to have durable powers of attorney in place – in case you need them. Estate planning for blended families can be complicated – not the least of which is figuring out what are your individual and common goals and values. Sometimes the finances are the easy part!

When older adults merge households, there can be a fruitful mix of traditions, with a few challenges mixed in. If we think of later life as a time of harvest in the autumn, this can assist in imagining what the harvest may hold for us. I quote from Anam Cara, the late John O’Donohue’s beautiful book:

when it is autumn in your life, the things that happened in the past, or the experiences that were sown in the clay of your heart, almost unknown to you, now yield their fruit. Autumntime in a person’s life can be a time of great gathering. It is a time for harvesting the fruits of your experiences.

Anam Cara: A Book of Celtic Wisdom (2008: HarperCollins) at 167. Bringing in the fruits of harvest, the intended and unintended, the sweet and perhaps the less sweet, can help us understand the aging process not just as the wearing down of the physical being but as the ripening of the soul, as O’Donohue describes so poetically. Marital agreements and other important documents can help blended families forge a path toward better understanding and maintaining peace.

Conscious Living and Dying: Death and Depth – part 2

Date December 24, 2013

Posted by Barb Cashman

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Japanese Garden at DBG

The first part of this post was about death and depth, depth as in “deep end” of something (yes, I likened it to the familiar swimming pool, with those rope float dividers) that is distant from us, unfamiliar, unknown and just plain scary. So now I will continue the analogy with a different topography, but along the same theme of that invisible mystery which spooks many of us. . .

For those of us who have experienced earthquakes, we have a different sense of the relationship between what is the visible ground that appears to be solid and the deeper ground where stirrings can cause a shearing away of that surface, revealing new ground, new possibilities, even amidst massive destruction.

Of course there is a choice about how to react when the ground breaks open. We can be careful to try and repair it, admiring the petrified crust and not wanting to upset any apparent order or appearances. Or we can break through the crust, willing to fall hard and break through the known into the unknown.

Into the depth of a center. Symbolically and mythologically speaking, there can be many places which can serve as a deep center, a mountain or a tree, which one could ascend or which can be reached only after a descent, the undoing of the apparent, exterior, the superficial. Where is the center? Well, that depends of course. Often we simply fail to slow down and consider the obvious question because we are so accustomed to looking past it, well beyond where we are at the moment. What is it that we know or we think that we know? I’m thinking of a quote from the poet and essayist Wendell Berry here (this from his collection of essay Standing By Words at 50) about the shortcomings of language – “It is not knowledge that enforces this realization [that you cannot act in your own best interest unless you espouse or serve a higher interest] but the humbling awareness of the insufficiency of knowledge, of mystery.”

Perhaps that mystery is the center for which we long and the voyage to which we dread. Again there is a choice – to do our won spiritual excavation to uncover truth, the meaning in our won life . . . . or we can admire the relics of another’s questioning or their excavation, from the comfort of an armchair. What does it take to move into uncertainty and “go with it?” Sometimes we don’t have a choice. This is the dying process. I’ll include another quote, this one by Vladimir Maximov:

All is mere ashes and dust-

All except the Temple within us.

It is ours and with us forever.

(From Henry Corbin’s 1986 book Temple and Contemplation.)

So if that movement, that moving away from and toward something, is in terms of a center, it is a place where we may realize that we are no longer separate from it but rather identify it as part of a larger whole of existence. In this way conscious living, along with conscious death, can be our final act of creation in this life. If death is a transcendence, of words or being, the question follows “to where?” I had the pleasure of reading “Creation and Recreation” by the late University of Toronto professor Northrop Frye, who observed: “Every unit is a whole to which various parts are subordinate, and every unit is in turn part of a larger whole.” [Creation and Recreation at 73.]

If death is a return, a remembering, a completion, then many of us may feel stranded by a sense of things undone, words left unspoken during a now-deceased dear one’s lifetime. Guilt, resentment, helplessness, remorse are common feelings here. These may arise from a denial of death, that we will indeed have time to finish our life to our own satisfaction. I have seen this approach in more than a few people. Many of us have never lived liked this before, so how can we be expected to change all this in preparation for a death that is most certainly not desired? It is difficult to determine when the time of sickness transitions to the time of dying, but an inability to accept one’s life seems to ensure that it will be much more difficult to accept impending death. Death is a final act, unknown and mysterious, yet it happens every day, all over the world. It is a final act, an ending, that realization that someone is “over and done with,” but our experience of course tells us otherwise. In one of the chapters of “Who Dies?” Stephen and Ondrea Levine look at how to finish business with someone who is no longer around? They note that the answer is always the same – one need not see that person in order to send them love, in order to finish business the other person doesn’t even need to acknowledge your presence, much less the process you are sharing. Like other types of forgiveness, this type of work is done for its own sake and is not dependent on any “results.”

To conclude this, I will loop back around to that idea of the deep center – which we can travel a path to in our lifetime if we choose, as part of our conscious living, or which we can travel to as part of the final destination in our physical body. The Levines attribute the following quote from Albert Einstein:

A human being is a part of a whole, called by us “universe,” a part limited in time and space. He experiences himself, his thoughts and feelings, as something separate from the rest – a kind of optical delusion of consciousness. This delusion is a kind of prison for us, restricting us to our personal desires and affection for a few persons nearest to us. Our task must be to free ourselves from this prison by widening our circle of compassion to embrace all living creatures and the whole of nature in its beauty.

Levine at 183. Just a gentle reminder that Einstein spent his life searching for a unified field. . .

Depending on how we look at it, we have been practicing dying all of our lives. When we get stuck on or attached to particular outcomes based on our expectations or who we think we are – we suffer. Perhaps we can practice this living and dying mindfully, so we can look beyond those prison walls and lessen our suffering in this life. At the very least, practicing it will make our dying and most likely the acceptance of our loved ones’ dying, much easier for us.

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

Date November 13, 2013

Posted by Barb Cashman

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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.

Why Are We So Afraid of Alzheimer’s and Other Forms of Dementia?

Date July 2, 2013

Posted by Barb Cashman

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I thought this recent post especially telling – that Stephen King’s biggest fear is Alzheimer’s. Many of us know the basic facts about Alzheimer’s and other forms of dementia – and they are scary. But to look at the fear more closely, is it the basic, elemental fear of losing control, of losing who we are, who we have become, that a disease that could bring our death could do so in a way that is impersonal in its robbing of identities? Dementia disregards all conventions of what might be recognized as a “good death:” a death that the dying person and the survivors can accept and “live with;” a death with some kind of meaning; an instantaneous death without fear. But what about the dignified death that is perhaps accepted and welcomed when it enters the room? Is this possible? From time to time I represent people who have lost a loved one to Alzheimer’s or some other form of dementia. It is often a long and protracted grief because so much of it is anticipatory, a grief for someone who is “gone” but has not yet died.

If dying is a process of letting go, then dementia can be a very long version of that letting go. The letting go in an explicitly public way, as it affects one’s interactions with others and the ability to care for oneself. If the fear of Alzheimer’s is about disintegration of the ordered self that we have come to think of as who we “are,” then it is a most potent fear because we haven’t determined either a cause or a cure for Alzheimer’s or other forms of dementia. All our advances in medicine, technology and drug therapies – and we are still largely helpless in the face of this disease.

So back to the fear of this disease. . . . Do we fear it because it is a threat to civilization? Freud’s view of civilization is essentially a defense against the soul world, the forces of nature and her elements: earth, water, air and fire. The elements are subject to constant change and so contain inherent creative, generative as well as destructive powers – powers that are largely beyond our control. What to do about this? If our view of civilization is of a defense against the chaos of nature, and the ego development is a tacit rejection of nature and the soul world, then perhaps one way of making sense of dementia is to look at what is the person who is afflicted with dementia. Some of us remark “he’s just not the same person anymore” and we focus on all the losses sustained as the person with dementia becomes less and less capable of caring for themselves, managing their affairs or otherwise being able to maintain their grip on “reality.” We focus on the medical aspects of the disease, diagnosis, prognosis and what drugs can be prescribed, the rising tide of incapacity. We look at disease and death as the enemy, something to be fought against. I am in no way suggesting of course that we give up on or diminish all the neuroscientific advances that shed light and offer a more complete understanding of our brain circuitry, but I am suggesting that our fascination with science and the material world can distract us from the bigger question – who are we are what are we here to do?

Nature and the soul are part of the mystery that we cannot control and struggle to make sense of. The medical field is divided about how to address devastation of Alzhemier’s. Dr. Jerome Groopman had an article in The New Yorker entitled “Before Night Falls” about this and there is controversy that goes much deeper than that. I’m thinking of a recent post from The Myth of Alzheimers.

I found this article in my latest SciAm Mind intriguing: Can Caresses Protect the Brain From Stroke? which is essentially about the power of human touch and how essential it is to our neurocircuitry. In case you have forgotten about this story, which has played out over many years in different hospital NICU units, it is about the “rescuing hug” of a premature twin newborn that saved her struggling sibling by being placed in the incubator next to her and then extending her arm around her twin.

Is part of the fear of the disease and its progression based on this battle we have with nature – our own nature and nature itself? In some ways, dementia is a peeling back, a withering away of all the personality and identity that has accumulated from all the doing of a life and it is a return to that fundamental nonverbal, preverbal means of communicating based on being, and not the constructs of doing. People with dementia often become frustrated due to their difficulty or inability to communicate or organize their thought or mobility processes. Human touch, as nonverbal communication can help calm persons with dementia and can also provide important benefits for the person giving the calming touch – particularly if they are a family caregiver. It is important to remember that much can be done to prepare for the disease and its progression, and important wishes can be expressed about end of life care and about what is important to individuals and family members. It is of utmost importance to have a health care power of attorney executed and, if desired, advance directives as well.

I agree with the late Tom Kitwood, that people with dementia have much to teach us. You can read more about his alternative theory of dementia , not as a medical model but rather as a dialectic between the personal, social and neurological aspects of a person.

A bigger question might be to consider whether our life is a long remembering or a long forgetting.

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