Facing Grief: Whose Death and Whose Loss?

A Sunny September Day at DBG

This post is about naming the unrecognized grief and respecting the grief experience as an individual human experience.  How do we respond to loss?  I recently borrowed from my  local library “The Other Side of Sadness: What the New Science of Bereavement Tells Us About Life After Loss,” by George Bonanno.  I enjoyed looking at this book because it challenges the recognized notions of what is expected about one’s experience of grief and how the experience of many of us simply doesn’t conform to those recognized expectations.  Let’s face it, none of us likes to be told how to feel – but we so often do that to each other in our child-rearing and in our lack of listening skills.   The chapters of Bonanno’s book cover a range of grief of people who are very resilient and grieve in a relatively short space of time to those who experience an entrenched and seemingly intractable grief.  He writes about the sadness that is part of grief.  I have to marvel that it is no wonder that our happy and PMA (positive mental attitude) obsessed American culture has a hard time with grief’s sadness and despair.  We spend so much energy trying to avoid, to pull ourselves away from discomfort and out of any pain that we often simply become numb – to both joy and sorrow.  But sorrow, like grief, is also a teacher.

“We are never so defenseless against suffering as when we love.” 

Sigmund Freud

Bonanno writes about the “function of sadness” – which he came to consider in working with Dacher Keltner (author of “Born to be Good: The Science of a Meaningful Life” and like Bonanno a psychology professor).  Turns out, sadness helps us remember more accurately.  He notes that “sadness helps us focus and promotes deeper and more effective reflection.” (Bonanno at 31).

In many ways, grief is the proof that we have loved another and that we have engaged our heart in the activity of living.  In this way the grief and the sorrow in our lives, the evidence if you will of our aliveness and participation in the world, along with our own vulnerability – this is what makes us stronger.  Leo Tolstoy wrote “only people who are capable of loving strongly can also suffer great sorrow, but this same necessity of loving serves to counteract their grief and heals them.”  The human psyche, like that human body, has the innate ability to heal itself.

In a blog post from 11/8/12 I asked “Should Anyone Practice Grieving?”   I think I would open that question a bit wider here.   What is grief if we consider that every day of our lives we might lose something –  someone or something that we became accustomed to, counted on, held dear or loved deeply?  What if we looked at the continuum of grief as part of our life in an experiential way.  Starting with the more mundane expectations, the details around which we plan our day and extending to the devastating or catastrophic loss that some will experience.  If we consider that our lives are inherently fragile and subject to constant change – would this make us stronger or weaker as people?   To this question I can respond in a lawyerlike way . . .  “it depends.”

What we grieve and how we grieve may be determined largely by us or we can be at its mercy.  How do we respond to our own weakness?  This is where grief can be a very effective teacher.  A first step may be to honor one’s own feelings, even if they include pain, sorrow and loss of identity.  I often advise clients who are grieving to be more gentle on themselves.  This is especially important when we are dealing with grief that is complicated – such as when a person takes his or her own life, even if it was “expected” – because we just can’t ever gauge how we will respond to such an event.  And what about the grief that is not typically recognized, an “under the radar” kind of grief like when a former spouse dies or an estranged partner or friend passes away?  For a person who hasn’t been married to a former spouse for a number of years, the survivor, along with the decedent’s family and friends, may simply not recognize the feeling or the loss.  Until this type of grief is named, it can behave like an anonymous marauder.

Sometimes grief helps us remember where we came from, where we were at a particular time- fixing, however improbably, an ephemeral recollection with a kind of “date and time stamp.”  Perhaps our true nature as people is to remember, to simply remember who we are.  Isn’t that difficult enough?  What if the experience of grief and sorrow could help reveal that to us?  In fact it often does, sometimes in surprising ways.

A fish cannot drown in water.

A bird does not fall in air.

Each creature God made

must live in its own true nature.

   Mechthild of Magdeburg

Consider the Blackfoot saying: Life is not separate from death.  It only looks that way.

So what is grief then?  Love is attachment, as we know from human development – bonding is a crucial step in an infant’s brain development, and we each form attachments of love with others in our own unique ways.  Grief is like a tear of that fabric of attachment that we can experience in any number of ways.  A tragedy on the other side of the globe, a person whom you have never met, a community affected by violence, a child or a family member.  Grief comes in so many forms and we, as experiencers of grief in our life experiences are even more diverse in its expression.  Listening with one’s heart is a way of sharing grief.  If you haven’t yet lost a dear one or felt the pain of grief’s unmoored emptiness, perhaps you can listen with compassion to another’s story of their loss and their grief.  This –  in the hope that when you have an experience of that nature, someone will be there to listen to you.

©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!

Elder Law and Probate Conflicts: Looking at Some Sources of Conflict

I visited the Chalk Art Festival last weekend at Larimer Square in downtown Denver.  Once again, my cousin Marty Calomino  was an artist exhibitor.


This is a picture of his chalk detail from Red Horse’s pictographic account of the Battle of Little Bighorn.  I love looking at chalk art because it is so unabashedly temporary.  I think part of that distancing ourselves from art – that happens to most of us after about the third grade or so, is as a result of thinking of art as something big and permanent made by “artists.”  What is deemed art tends to fluctuate over time. . . .  that’s where I tie in chalk art with conflict and old age!

Let’s face it – for many of us, old age is “the enemy.”  I include here beloved poets such as William Butler Yeats who has described it as a time of regret.  For others of us, old age has a different meaning.  Resident in this camp are poets like Walt Whitman, who penned

Youth, Day, Old Age and Night:

Youth, large, lusty, loving–youth full of grace, force, fascination,

Do you know that Old Age may come after you with equal grace,

force, fascination?

Day full-blown and splendid-day of the immense sun, action,

ambition, laughter,

The Night follows close with millions of suns, and sleep and

restoring darkness.

The fact remains that old age simply scares many of us.  Death at the end of old age, after an illness – or anytime we can see its approach – well , this is more than many of us can bear.  Hence the conflict.  Conflict is a part of life, so it is natural.  What is it about how we deal with aging, frailty and health care challenges that make these particularly susceptible to conflict?  The answer to that is, as my late father used to say “autobiographical.”    Sometimes the conflict is barely detectable or it is underground.  At other times, open hostilities may feature verbal violence, threats and even physical violence.

So where can someone turn for help? Finding the right fit to get help to manage or resolve a conflict can be a very daunting task.  As an elder and probate mediator I often hear from people – often adult children and other family members – who are looking for assistance in resolving their dispute before they feel a need to resort to the court system.  Often there is at least one person ( a stakeholder ) and sometimes a bloc of persons who will simply not take any action to remedy a situation unless they themselves choose to originate the action.

So let’s take a look at conflict at the end of life – and identify a few of its more predictable sources:

  1. Health care choices – who makes them and how to decide, what to decide

I have written a few blog posts on the topic of conflict in the health care setting at the end of a person’s life.  But this kind of conflict is not limited to a hospital or even home hospice care, and the conflict can arise whenever there is interaction among people, often family members, who have differing expectations, beliefs and different coping strategies for facing another’s illness and the end of life.  In Issue 73 (March 2013)  of the Health Care Chaplaincy newsletter (to which I subscribe) one of my posts  was quoted by Rev. Jill Bowden, director of chaplaincy services for Memorial Sloan-Kettering Cancer Center for my observation in a blog post that “a  patient’s impending death ramps up emotionality…and often leads to emotional, verbal  and sometimes physical outbursts of violence among family members and loved ones.”

If the right people can agree to participate, mediation or family facilitation can help family members productively manage difficult situations.  Overcoming the inertia to contact a mediator or other third party neutral can be difficult, and it is often challenging to convene all the participants (also known as “disputants”) to a family meeting or mediation, but it can be done.

2. Financial matters – who is in charge and who has the authority to manage a person’s affairs?

You might be wondering why I distinguish here between who is in charge and who has to authority to manage another’s finances.  The person “in charge” may be the person who is getting assistance from another with organizing and managing paying their bills.  More than once, in durable power of attorney scenarios where an agent has taken over a principal’s affairs, I have heard the agent describe themselves  as a person having “power of attorney over” the principal.  That really reverses the purpose of the POA and turns the tables on who works for whom.  The agent works for the principal and serves the principal’s interests.  Sometimes agents are ignorant of or forget this important detail.  On several occasions I have seen an agent who has been acting under a power of attorney and the agent has not educated him- or herself about how to behave and transact business for the principal as the principal’s agent.  Also, in a situation where there is one adult child “in charge” and another with the legal authority to act on behalf of the principal, this can be a another source of conflict.

3.Conflict in a decedent’s estate administration – after someone has died

If the illness and death of a loved one has produced conflict among family members, and if the conflict is still simmering or about to boil over, opening an estate can be the match in the tinderbox.  Sometimes the person who was in charge of or presided over a deceased person’s finances will have their authority revoked or rescinded by the disapproval of others.  The level of misunderstanding in this context of grief can increase exponentially.  Many families and blended families with adult siblings can figure out ways to weather this storm while others cannot.  The glue that held the family together, the deceased parent – on whose behalf the warring siblings were once able to rally together, is now gone.  Sometimes the wishes of a parent and their memory are insufficient to overcome their difficulties in getting along.  This adds to the individual’s and the collective grief.

In a later installment, I will talk about how these disputes can be aired and productively managed in a family meeting or, if the conflict is protracted – in mediation.

©Barbara Cashman     www.DenverElderLaw.org

Dementia, Capacity and Old Age: part II

Part I of this post began: In our death-denying and youth-glorifying culture, how does dementia figure as a disease? Is there a cause? Is there a cure?  What pills can be prescribed?  We might choose to view dementia is a dark side of longevity.  Where we have unprecedented longevity due to medical advances, isn’t it right to wonder about what our lives are for – especially if we have more length of days to ponder the meaning.   As I frequently comment to clients, we have never had so many old people on the face of the earth before.  Many of the challenges we face in supporting  elders and caring for them – the legal, financial, medical, social and emotional challenges – are new problems and require new thinking. 

How is it decided who gets to go back home, back to their independent living arrangements, after a discharge from a hospital or rehab facility?  Long term living arrangements for elders in institutions have been becoming more rare – but is this trend likely to continue as more of the baby boomers reach retirement age?  In the institutional setting, a major issue presented in this context of dementia and capacity is the “choice between” autonomy and restraint.  This is a recurrent dilemma for many elders living in facilities and the staff members charged with managing their care in these institutionalized settings.  This is “big brother” in the context of the growing number of elders.

What is it that matters about old age – why do so many people want to live longer?  When we focus on the do-ing part of our lives, extending that “active adulthood” indefinitely, or at least valuing that part of our lives as the only part worth maintaining and carrying on, we do disservice to the be-ing part of our lives.  I recognize that the vast majority of our culture is focused on the doing, the active (not contemplative), the choosing (not reflective) and the control, and that these are the hallmarks of a culture that holds choice and self-determination in high regard.  However, there is also the more fundamental backdrop of human dignity that often gets overlooked when we get caught up in our rights-bearing choice-making mindset.  This is the challenge of dementia and and other end-of-life scenarios and why we need to rethink our thinking in some fundamental ways.  For an institutionalized person with advanced dementia, that person is entitled to dignity and respect as a person, simply by reference to their being alive, and without reference to a focus on all the capacity that a person has lost.  How many times have we heard comments like “look at him now, he used to be a university professor.”  I think these comments are symptomatic of our unbalanced focus on the do-ing part of our adult lives, (which undoubtedly helps many of us maintain our sense of control over our lives) at the expense of the be-ing aspect of our lives.    We exist as people  as long as we are alive, as human beings.

Below I quote the entire poem “Tithonus,” by Alfred Lord Tennyson, a  poem about aging as told by the lover of the goddess Eos, whose immortality was granted by Zeus – but Eos forgot to ask Zeus for his eternal youth and he was thereby left in an eternal prison of old age.

The woods decay, the woods decay and fall,

The vapours weep their burthen to the ground,

Man comes and tills the field and lies beneath,

And after many a summer dies the swan.

Me only cruel immortality

Consumes; I wither slowly in thine arms,

Here at the quiet limit of the world,

A white-hair’d shadow roaming like a dream

The ever-silent spaces of the East,

Far-folded mists, and gleaming halls of morn.

Alas! for this gray shadow, once a man–

So glorious in his beauty and thy choice,

Who madest him thy chosen, that he seem’d

To his great heart none other than a God!

I ask’d thee, “Give me immortality.”

Then didst thou grant mine asking with a smile,

Like wealthy men who care not how they give.

But thy strong Hours indignant work’d their wills,

And beat me down and marr’d and wasted me,

And tho’ they could not end me, left me maim’d

To dwell in presence of immortal youth,

Immortal age beside immortal youth,

And all I was in ashes. Can thy love

Thy beauty, make amends, tho’ even now,

Close over us, the silver star, thy guide,

Shines in those tremulous eyes that fill with tears

To hear me? Let me go: take back thy gift:

Why should a man desire in any way

To vary from the kindly race of men,

Or pass beyond the goal of ordinance

Where all should pause, as is most meet for all?

A soft air fans the cloud apart; there comes

A glimpse of that dark world where I was born.

Once more the old mysterious glimmer steals

From any pure brows, and from thy shoulders pure,

And bosom beating with a heart renew’d.

Thy cheek begins to redden thro’ the gloom,

Thy sweet eyes brighten slowly close to mine,

Ere yet they blind the stars, and the wild team

Which love thee, yearning for thy yoke, arise,

And shake the darkness from their loosen’d manes,

And beat the twilight into flakes of fire.

Lo! ever thus thou growest beautiful

In silence, then before thine answer given

Departest, and thy tears are on my cheek.

Why wilt thou ever scare me with thy tears,

And make me tremble lest a saying learnt,

In days far-off, on that dark earth, be true?

“The Gods themselves cannot recall their gifts.”

Ay me! ay me! with what another heart

In days far-off, and with what other eyes

I used to watch if I be he that watch’d

The lucid outline forming round thee; saw

The dim curls kindle into sunny rings;

Changed with thy mystic change, and felt my blood

Glow with the glow that slowly crimson’d all

Thy presence and thy portals, while I lay,

Mouth, forehead, eyelids, growing dewy-warm

With kisses balmier than half-opening buds

Of April, and could hear the lips that kiss’d

Whispering I knew not what of wild and sweet,

Like that strange song I heard Apollo sing,

While Ilion like a mist rose into towers.

Yet hold me not for ever in thine East;

How can my nature longer mix with thine?

Coldly thy rosy shadows bathe me, cold

Are all thy lights, and cold my wrinkled feet

Upon thy glimmering thresholds, when the steam

Floats up from those dim fields about the homes

Of happy men that have the power to die,

And grassy barrows of the happier dead.

Release me, and restore me to the ground;

Thou seest all things, thou wilt see my grave:

Thou wilt renew thy beauty morn by morn;

I earth in earth forget these empty courts,

And thee returning on thy silver wheels.

Alfred Lord Tennyson

Does our culture’s denial of death as part of life, our glorification of youth at all costs condemn us to Tithonus’ fate?

If we cannot stop to think about the purpose of our lives during our adult years, can we abandon to hope that such meaning will somehow arrive at our doorstep, unbeckoned?  If this were to happen to us, would we even recognize its meaning?   I think not.  Elderhood is an extension of adulthood, and growing up is – quite simply – optional in our culture.

©Barbara Cashman     www.DenverElderLaw.org

May 1st is Law Day – Happy Law Day!

Law Day – what is that about. . . .? I haven’t seen the greeting cards to mark the occasion! The theme for Law Day 2013 is Realizing the Dream: Equality for All. This year’s commemoration is all about civil and human rights, the American Bar Association has some great resources available here.

This year’s Law Day is a fairly patriotic event in that it marks our nation’s long history in the struggle to honor and promote people’s civil and human rights. This year is the 150th anniversary (or sesquicentennial if you prefer that) of the Emancipation Proclamation. In Denver, our local and state bar associations are co-sponsoring a screening of the 2012 film Lincoln.  The event even has a CLE (continuing legal education for lawyers) component.
On the civil rights theme, I would like to have linked to a youtube showing the historic “I Have a Dream” speech by the Rev. Dr. Martin Luther King, but there is a bit of an intellectual property right issue there.
Sometimes lawyers forget why they went to law school and what the struggle for justice, still ongoing, is about. Law day seems to be an observance primarily for lawyers and bar associations, but it also has an important component of education about our legal system as well. Our system of justice cannot effectively function when people are not educated about their rights. In most of Europe and many parts of the world, May Day is not law day but is a commemoration of workers’ rights.
I looked up the history of Law Day in the US and discovered it was the idea of Charles S. Rhyne, President Eisenhower’s legal counsel and also president (the youngest person to serve in that capacity) of the American Bar Association. My connection with Charlie Rhyne? He started the World Peace Through Law effort. I attended the 1987 Seoul Conference on the Law of the World and served as rapporteur for one if its committee meetings. The organization is now known as the World Jurist Association.  International law is grounded upon the recognition of the rule of law among nations.
So, Law day and civil rights – where’s the elder law connection? I have previously blogged about the Universal Declaration of Human Rights in the context of elders’ rights.  For their part NAELA, the National Academy of Elder Law Attorneys (of which I am a proud member) has a press release here about their efforts and elder and special needs law attorneys’ efforts to educate their community about legal options. They observe the entire month of May as Elder Law Month.
So, you may not be thinking about the civil rights and the elderly and incapacitated when you consider civil right. But make no mistake – elder law is a hotbed for civil rights – why? Guardianship proceedings (as they are known in Colorado, in most state jurisdictions protective proceedings are known as guardianship of the person and guardianship of the property – for what is known as conservatorship in Colorado). As the number of elders continues to increase, we will need to develop more appropriate legal mechanisms to manage the gray area of defining incapacity. This is where the law evolves to meet the needs (that’s the goal at any rate) of a changing demographic and society.
How will I spend law day? I will be grateful for being a citizen of this great country where the rule of law is well respected. What is “the rule of law?” Okay, I skipped the definition in my trusty Black’s law dictionary – too stuffy sounding and like the Wikipedia one better: it refers to the authority and influence of law in a society, especially as a constraint upon behavior, including behavior of government officials.  When I was studying international law back in my law school days, this was a revolutionary concept in many legal institutions. In fact, it still is in many parts of the world. One of the best parts about being a lawyer is staying on top of developments and figuring out how to tailor these to meet a particular client’s needs. Estate and elder law provide me a wonderful opportunity to advise people about their legal options and counsel them in the context of what works best from their own legal, financial, medical and emotional point of view. I am grateful for my clients and I love being a lawyer. . I wouldn’t have it any other way.
I think it’s a fitting way to observe Law Day – even if it is spent with lots of boxes and the movers who will be moving my office from southeast Denver to Centennial, two miles south of my current office.
              My new address is 7955 East Arapahoe Court, Suite 3000, Centennial, CO 80112. My new direct line is (720) 242-8133.

©Barbara Cashman www.DenverElderLaw.org

Attack of the Zombie Lawyers!




In a recent blogpost, I had a link to an adverstisement for an insurance company selling coverage for retirees interested in buying protection against robot attacks. . . .  Who knew I would be writing a post about zombie lawyers a few short weeks later! You may not recognize these zombies because, well, they’re not the Hollywood stylized ones popularized by the movie Zombieland and that whole genre of too-many-B-movies-to-name (with all due respect to George Romero and Shaun of the Dead. . . . ). Yes, they’re missing the makeup and the flashy zombie attire, but don’t be fooled – they’re real!




In case you are doubting the veracity of this post, here’s another picture – this one of bar association employees – who knew they too were zombies?! – gathered for a snack in their lunchroom.


Okay, really these zombies are obviously having too much fun to be the menacing, drooling Hollywood types! So what gives with the zombie lawyer theme? Is there any redeeming part of this whole April Fools blogpost you ask? Well . . .  hold on. . . .

I was also thinking of another variation of a “zombie lawyer” – I’m thinking of the DIY online document services  and legal information available over the internet  – both the free and the fee-based kind.  Why – you might wonder – would I consider this a kind of “zombie lawyer?”  Well, many folks who have legal questions or difficulties often have questions about the law, or how it applies to them – and they don’t know where to start.  The internet is an amazing but often overwhelming source of information, and some of the information that is available is legal in nature.  So there is plenty of information out there, but how to filter out the wheat from the chaff?  And what about figuring out how it might apply to your particular situation? If you aren’t sure whether you are asking the right question or think your situation is unique, or that your scenario might be complicated -and  not something that is readily answerable in an “FAQ” type information source – sifting through the information can be overwhelming.  How do you decide which is “good” information that applies to your circumstances?  Well, the “zombie lawyer” or more accurately “zombie legal advice” you can cobble together from a variety of internet sources may be problematic in several ways:

  • it may not be state (Colorado) specific, but based on another state’s law (how do you know?)
  • it may be designed to apply to a one-size-fits-all category and you’re not sure what your size is. . . .
  • you might zero in on a known problem and not consider its relationship to other issues
  • you might end up “fixing” one problem only to create a difficulty in another area
  • how will you know if you’re asking the right question or getting a sound answer?
  • can you accurately consider the cost of the “downside” for doing nothing, or addressing the situation by handling it yourself?

When you contact a lawyer, you get the benefit of talking with an actual human, not a zombie that looks like a source of legal information or advice! A lawyer is not someone who is just trained in the law in terms of finding information, we go to law school to learn to look at things and analyze issues and situations in terms of legal analysis.  Sometimes the most important task in finding an answer for a client is in identifying the right question.   Here I would also offer an insight from  a favorite book of mine – Daniel Pink’s “A Whole New Mind,”  and in terms of work in my field of estate and elder law, it takes me and my colleagues from being otherwise pigeonholed by some as mere document preparers to a job more along the lines of being a symphony conductor:  We provide the forum to ask the right questions, to hear the concerns of the client and to coordinate the legal issues, analysis and practical application to a synthesis or symphony. . . .   In my opinion, this is the best part of being a lawyer. And that is no April Fool’s joke!


©Barbara Cashman     www.DenverElderLaw.org


Health Care Power of Attorney, HIPAA and Hospice


When someone asks me what a health care power of attorney or MDPOA (medical durable power of attorney) is for, it usually takes a bit of an explanation.  Sometimes I will talk about the roots of “informed consent” in medical treatment deriving from the Nuremberg trials.   World War II tragically produced many sound principles of international law.    In our country, we sometimes speak about rights and autonomy in the context of medical care, but longevity and medical advances have provided a new proving ground for patient autonomy.  We have the right to decide alongside the right to not decide.  Beyond the advance directive, which seems to have its own well-run PR department, few people are aware of the MDPOA and its significance and utility in today’s world of medicine.  Making treatment choices in advance becomes particularly important when a frail elder and family members face difficult decisions about treatment choices.  These matters are often made more difficult by the way our health care “system” works in this context, the Medicare context, where doctors are paid per intervention, often leading to worse outcomes for patients  those patients who tend to be over treated.  Indeed, when people make their wishes known to family member and empower another to decide for them in a MDPOA , that empowerment alone can often lead to better outcomes.    So empowerment about health care decisions, considering the “what happens if. . . “ along with the “what happens when. . . . “ can help give our lives meaning by considering the end of our lives – not just as a cessation of life but in the context of its meaning.

I’ll quote Ralph Waldo Emerson here

“The purpose of life is not to be happy. It is to be useful, to be honorable, to be compassionate, to have it make some difference that you have lived and lived well.”
Whatever your purpose is, make sure that you have the difficult conversation in advance.  It will ease your mind and the minds of your dear ones.  They will know what you want and will be much less inclined to select by default the heroic and futile medical interventions that are so often based on guilt, guilt flowing from the lack of knowledge of what the person would have wanted for themselves.

On the less philosophical and more practical front, whatever the documentary source of your MDPOA, you will want to ensure that it contains an effective HIPAA release.  Learn more about the Health Insurance Portability and Accountability Act of 1996 here.    Otherwise, your appointed agent may have all the authority to make decisions for you but effectively no access to your federally protected health care information.  I was reminded of this a few years ago when I visited a client in the hospital.  I asked one of the nurses at the desk if they had a MDPOA form available and they gladly supplied one to me.  It did not contain any HIPAA release. . . .

Just because you are a family member doesn’t mean you have HIPAA authorization.  You might be familiar with the codes that many hospitals now use regarding access to information.  The best policy is to have a MDPOA with a HIPAA release.  An interesting detail on the HIPAA front. . . . .  This is a recent development that is interesting as it involves digital health information, also known as “electronic protected health information” or ePHI.  It is the first settlement on record of a breach involving a provider with fewer than 500 patients.   The hospice involved was fined as a result of the theft of a laptop containing ePHI on which it had not adequately adopted or implemented security measures to ensure confidentiality of ePHI it created, maintained and transmitted using portable devices.  You can read the entire Resolution Agreement here .   Hospice providers generally make home visits to their patients and this is a cautionary tale about the threats of portable medical care and home visits.

A couple helpful resources for Coloradoans looking for more education about MDPOAs and advance directives include pamphlets available from The Colorado Bar Association at www.cobar.org and information from the  Colorado Advance Directives Consortium at www.coloradoadvancedirectives.com

©Barbara Cashman     www.DenverElderLaw.org


Funerals and the Meaning of Life

I went to my Uncle Frank’s inurnment today at Fort Logan.  A Korean War veteran of the Navy, he served for many years as commander of the Wilmore-Richter American Legion Post 161 in Arvada.  The Legion is an amazing community and the turnout was huge.  I commented to my cousin that all of them are also his family, they were his community for so many years.

So what is a funeral anyway?  It is a rite of passage of course, that others make possible for the deceased.  In Jewish tradition , it is an honor to shovel the earth over a casket because the person for whom one does the shoveling cannot so to speak “return the favor.”  This is a reminder that there are many things in life we do for others that they perhaps could not do for themselves.  Sometimes we are motivated by compassion or empathy, thinking “I would want someone to do the same for me if I were in that situation.”   Other times we just do things for no reason except that it is the right thing to do, and we most likely feel good about doing it.

This takes to me the essence of community in the funeral context – going beyond the transactional aspect of life, or a social bargain based on a tit-for-tat, scorekeeping or checklist sort of assessment of a person’s life.  How often do we hear about a bucket list . . .  whose bucket list is it anyway?    When a person dies and survivors grieve and mourners mourn, we feel the loss of that person as an individual and as a member of our community.   This love that causes the grieving is proof of the existence of life and relationship, I think this is the real proof that someone lived and was loved.  Whether you have a belief or disbelief in an afterlife, grieving is proof of love, proof that someone touched your life in a way that can be felt and reckoned only by the heart.  The love never dies, it most definitely has an afterlife.

A funeral, memorial or celebration of life causes us to slow down and reflect on that person’s life and our own lives as well and to look for meanings in our lives as we construct meaning for the life of the deceased.  This aspect of funerals is the same across the globe.   Okay Barb, but The Meaning of Life? Surely I’m referring to the Monty Python film . . .  I am after all a ” huge fan of their work.”  I was thinking about the three family members whose cremains are at Ft. Logan and also about all those baby boomers reaching a “certain age.”  What will the meaning of the passing of the huge numbers of baby boomers mean for our children and grandchildren.  Will it be any different from that of the Greatest Generation or the Silent Generation.  Undoubtedly it will.  Is up to the deceased to make meaning of their own life?  I think not, that is the task of the living.  It does give the living, the surviving community and family members an invaluable opportunity for reflection.  This reflection can operate on many levels: It reminds us of our own mortality and the fragility of life; it can focus our attention on the time we have now and not leaving unsaid those things we might regret leaving unsaid (there are Dr. Byock’s four things I have previously blogged about, among other conversations); we have an opportunity to adjust our self-identity and to “be” in ways that are new and sometimes challenging indeed.

A funeral is a rite of passage for everyone, all the survivors – if we simply stop to take some time to reflect and ask some questions.  For most people, these are not easy questions to discuss, but in my work as an estate planning attorney, one of the questions I ask concerns funeral arrangements.

End of Year Lists: Don’t Forget the Digital Assets!

Okay, it’s December – and it might even snow soon here in Denver . . .

End of year planning means list-making, right? So here’s a follow up to a post I published on April 30th about passing on in a wired world.

        1. Make a list of all your digital “stuff”

        2. Tell someone you trust where to find it

        3. Don’t forget to update it regularly (new information and changes to existing)

These are the top three things I suggest doing – even if  my use of the term “stuff” is vague.  Why would I use such a vague term here?  Well, there are more than a few types of digital “property,” some of which may look like property but not be property (e.g., a license).   This area is relatively new, evolving and fraught with uncertainty.  This is why I think the better policy is to include all property on a list and have it “sorted out” later on if need be.

Relating to (2), you could consider someone taking care of your online identity/footprint/stuff as your “digital executor.”  I’m thinking  historically, back to the many writers who entrusted their unfinished works or compilations to their named “literary executors.”  In one case with which I’m familiar, a friend of a decedent was previously instructed to “wipe” the hard drive and all storage devices on the decedent’s computer and smartphone.  Not all of us want to live forever digitally or leave a trail for other’s to track.  It’s best to decide these things in advance.

You will want to regularly update the list, which could include ownership interests (like a domain name or a bank account for example), licenses or uses (subject to terms of use contracts), access information for accounts, communication and devices (including computers, external storage, cloud and smartphone).

Only a handful of states have enacted legislation relating to digital assets of a decedent and Colorado has not yet done so.  What is the state of the law applicable to these matters?  Evolving!  There is federal legislation regarding the internet, contract law pertaining to terms of use which govern access to most online accounts, and then there is the unsettled area relating to the application of agency law and decedent’s estates (powers of agents under durable powers of attorney and a personal representative of an estate).   Suffice it to say there are some very interesting legal scenarios about the nexus of these three sources of law . . .   Many estate planning attorneys now regularly ask their clients about digital assets, and some (myself included) have drafted powers of attorney regarding digital access and assets.

There are many nuanced issues relating to digital versions of the familiar world (at least to those of us like me, a “digital immigrant”)  – a good example is the book.  Let’s say Decedent leaves his library of Mark Twain works (published in 1903) to his son, and the impressive digital collection of the same complete works to his daughter.  Whoa! The first bequest is simple and straightforward, but in the bequest to daughter of the digitized versions of the works (which may include versions of audio, video, CD, eBook, etc.) each of the assets would need to be considered according to federal copyright law, any terms of use or terms of service the decedent agreed to when the purchase was made, and whether any kind of intellectual property protection may additionally apply (like under the federal Digital Millenium Copyright Act of 1988).

Okay, what about your Facebook account – maybe you’ve heard there are memorial pages available . . . .  This access depends on many factors as well.  For example, a coroner investigating a suspected suicide may not be able to access the deceased person’s Facebook account to help with the investigation.  Read Jim Lamm’s Oct. 11, 2012 blog post that discusses this very issue in the context of the Stored Wire and Communications Act (part of the Electronic Communications Privacy Act of 1986).

This area of law, like the rest of life – is uncertain.  If you want to ensure that everything is accounted for (or erased) – be sure to provide some instructions and make that list of your digital assets.

©Barbara Cashman     www.DenverElderLaw.org