Elder Abuse and the Mother-Child Relationship

Tree Mother

Tree Mother

 

Today I’m exploring the question of whether exploitation or neglect of an elder parent by an adult child presents differently due to the gender of the parent.  I will begin with a question:  is the elder parent – adult child relationship different between mothers and fathers?  What about when it “goes wrong” and results in neglect, exploitation or financial, physical or verbal/emotional abuse? I can say from my experience as an elder law attorney that elder mothers appear to be taken advantage of in ways that are often different from those means involving elder fathers.

This post crosses a lot of territory – spanning the abuse of a power of attorney by an adult child serving as agent, elder abuse resulting from neglect of an incapacitated elder, to the evolution of family conflict across many years of relationships.  Abuse in these contexts can take many varied forms and because it is part of a family relationship, a most intimate one of mother and child – it can express itself in subtle and slippery ways.

I have noticed in the estate planning portion of my work that fathers tend to have a much easier time with leaving disproportionate shares of an estate among adult children and also seem to be much more resolute about disinheriting a child.  One of the reasons might be that mothers tend to have a higher involvement and investment in the parent-child relationship, even as it evolves over the lifetime of the parent and the adult child(ren).  In my experience, mothers are more likely to hold out hope that a wayward child (whom a father might easily disinherit) will return to a more productive life path or that the filial relationship will otherwise be redeemed.

Some people might think that threatening one’s mother with putting her in a nursing home might amount to elder abuse.  I’m not saying that it wouldn’t constitute emotional abuse in some circumstances, which could be used by an adult child to further a strategy of dominating and controlling a parent for their own personal gain.  This threat could also stem from an adult child caregiver who is overstressed from his or her responsibilities to care for a (sometimes uncooperative or difficult) parent.  Sometimes what ends up as exploitation starts out as a willingness to assist the parent but perhaps due to the nature of the parent-child relationship or as a result of the buildup of resentment on the part of the child, the caregiving goes astray.  But what I’m talking about in this post goes a bit further.

As we all know, parents remain parents of children, with all of the emotional responsibility that entails – regardless of the age of the child.  The fact is that many elders are better off financially (or at least more secure) than their children and they may want to help their children financially, but there is a razor-thin edge between healthy nurturing and being subjected to emotional manipulation.  Here’s a link to an AARP article from 2013 which has some sad statistics.  Part of the problem is a sense of entitlement from the adult child or children.  Some of us in my field of practice use the term “impatient heir” to describe these adult children who seem to be biding their time until the parent dies and they can “collect.”

I don’t want to sound like a broken record here, but I have noted a number of times in previous posts that there is not very much current research documenting the prevalence of elder abuse.  There is some recent work on the sometimes toxic nature of filial relationships and elder abuse.  What is “taking care of” someone and what does it properly entail? Here’s a link to an abstract about the special significance of the adult daughter-elder mother relationship and the use of aggression. Underreporting is an obvious problem – particularly when the reason for underreporting is shame or embarrassment.  When an elder mother (or father) reaches out to me as a resource person to assist in remedying a situation, one of the first things I say involves the recognition of how brave the mother Is to contact someone outside the family to report on what is generally a highly embarrassing and sometimes shameful situation.  One elder mother I worked with recounted to me how her daughter told her that she was mean to her when she was a teenager and so the daughter’s control over her mother’s finances was part of a “payback.”  Another mother extended her home temporarily to a child from whom she had been estranged for many years, only to learn he had no intention of ever leaving.  The victim-victimizer narrative in these situations can get rather convoluted!

Dr. Judith Smith is a researcher in this field who is engaged in studying how family conflict plays out in the later years of the parent and she has focused on the parent’s feelings of ambivalence (e.g., a mother wanting to help her child versus the resentment of feeling the need to assist).  The National Adult Protective Services Association (NAPSA) recently added Dr. Smith’s research brief entitled “Elder Abuse, Mother Abuse and Parenting in later Life.  Here is a link to the power point training offered by Judith Smith, LCSW, PhD on Vimeo on which NAPSA based their report.

The ambivalence scale to which Dr. Smith’s training refers is described in more detail here by Karl Pillemer, in the article entitled “Ambivalence Toward Adult Children: Differences Between Mothers and Fathers,” and you can read the article on the National Institutes of Health website here.

As we continue down the road of longevity, it might help us to think about our long term familial relationships and how they are challenged or compromised as a result of a parent’s longevity.  When this longevity involves physical frailty, emotional dependence, cognitive impairment or other factors diminishing an elder parent’s autonomy – what is an appropriate response?  This is of course an ongoing conversation and I will continue on this topic in the future.

© 2016 Barbara Cashman  www.DenverElderLaw.org

May is Elder Law Month!

May is Elder Law Month, so today’s post will commemorate this effort to draw the public’s attention to the legal problems of the elderly.  Because it serves the population of elders, elder law is a broad practice area and often overlaps or intersects other areas of law practice – like disability law, government benefits, discrimination and criminal law.

Elder law is also a niche practice area because it involves working with elders and an aging population in different areas of the law.  Many of us work with elders who have physical challenges, some cognitive impairments and other difficulties, and we are together charting a new course for extended longevity and engaged and dignified elderhood.  From my own perspective, working with elders gives me some unique and rewarding opportunities to work with people.  I often provide counseling – as many other types of lawyers do, but counseling in elder law typically involves a number of nonlegal considerations which factor into the mix of legal questions which must be addressed.  To my mind, the best description of this approach is “holistic.”  In short, elder law practice is pretty “touchy feely” and I wouldn’t have it any other way!  It demands well-honed listening skills from the attorney/counselor and requires a cultivated compassion for people and the situations in which we can find ourselves.  Yes, of course I must mention a requisite fluency with the legal concerns in this area . . .  which are frequently changing and evolving and while mostly based on state law, are often impacted by or driven by federal law as well.

The times have changed and many living arrangements of elders reflect this.  Legal challenges for elders and their attorneys are ever changing and developing.

Improvements to quality of life for elders abound, but many challenges remain.  Some of these include:

  • Employment issues and age discrimination
  • Housing availability, affordability and appropriateness
  • Longevity, retirement savings, social security and financial security
  • Health care and self-determination
  • Living longer and forging relationships with loved ones
  • Dignity and freedom from exploitation and abuse
  • Protective proceedings in probate court (in Colorado these are known as guardianship or conservatorship proceedings)

As a member of the National Academy of Elder Law Attorneys, I have access to helpful information on these topics in the form of NAELA brochures which I am happy to share with readers.  Just drop me an email!

On the more philosophical and artistic side, take a look at this ancient mosaic recently uncovered in Turkey which depicts a skeleton and reads “be cheerful and live your life.”  A timeless message to be sure – to be grateful to be alive and to have the opportunity to live one’s own life, and not that of another.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

 

Yours, Mine, Ours and Theirs – What Kind of Estate Plan?

denver elder law

A Waiting Bench

 

Last week I zeroed in on the importance of having in place health care advance directives for blended families and for this week’s fourth installment, I am going to go back to the big picture.  Part of the post-modern impatience which afflicts so many of us is to rush to a solution to a problem which is often not fully identified and consequently, many options which may have more comprehensively addressed the situation are never considered.  This is the old saying “don’t just do something, stand there!”  I offer that somewhat tongue-in-cheek because I know this is foreign to most of us, who are much more comfortable with our roles as “human doings” as opposed to “human beings!”

So let’s consider first the background for this big picture with a questions: what kind of family are you?

I recently executed a will for an elder client who mentioned to me that, besides providing for her five children, she considered in many ways as a son a man for whom she had served as a foster parent.  She had made provision for him with an insurance policy.

There are many different types of family just as there are many different types of families.  There are those “families of origin” which are usually those into which we are born and sometimes adopted.  Then there are “families of creation” – those which we choose by the relationships we have, be they biological children or other children, partners, spouses, extended family and friends.

So, back to the question posed above. . . the first obvious question is:

Are you married?

What kinds of joint or separate assets accounts do you own and how will those assets devolve (legal term for be inherited by) upon your surviving spouse, your children or stepchildren, and others for whom you wish to provide?

Do you have a marital agreement which often helps inform the disposition of property in the event of divorce and/or death?

And if you are not married . . .  then what?

Well, quite honestly – this is where things can get much more interesting.  Where the institution of marriage can provide much clarity as to whom will inherit a deceased person’s assets, a lack of a marriage can create many difficulties in long-term relationships if certain measures are not taken.  Many of marriage’s “protections” are evident in the law of intestacy, set forth in our probate code, which provide a myriad of extras available only to a spouse.  There are also protections which allow a surviving spouse to “take against the will” of the first to die spouse if the surviving spouse is qualified to do so.  (This is somewhat complicated, so I will not explain further at this time.)

Have you and your partner ever “held out” as spouses? Then common law marriage might be applicable.  Contrary to some modern folklore, there is no amount of time alone of cohabiting that is sufficient to support the existence of a common law marriage.

Are you and your partner clear about remaining unmarried to each other? This sounds odd, but there are many reasons couples do not wish to marry.  I know of one couple that chose for many years not to marry simply because they were afraid of (read – unfamiliar with) the legal consequences of marriage on their children’s rights relative to the step-spouse!

Couples will sometimes enter into agreements with each other to delineate the boundaries of their relationship.  Some of these might include: a nonmarital agreement; a living together contract; or perhaps a designated beneficiary agreement.  There are a number of ways in which an unmarried couple can solidify their relationship and many of the legal uncertainties surrounding it by simply executing such agreements.  Of course, before these agreements can be entered into, discussion must be had.

As we Americans are living longer than we ever have, perhaps it is time to think a bit more about our living arrangements and the relationships on which they are based.  More on this later!

© 2016 Barbara Cashman  www.DenverElderLaw.org

Another post about caregiving and living arrangements

Santa Fe sculpture

Santa Fe sculpture

In looking once again at aging in place, let’s look at whether you really need to know what a NORC is and how it is different from a CCRC.

Conventional wisdom dictates that most of us would want to stay where we are as we grow older, but this isn’t always the case.  It depends on the person’s unique circumstances.  Some of these factors include:

The kind of home or condo you own – does it require lots of maintenance and have stairs or other factors that require lots of physical attention?

Is it necessary to drive a car to get groceries, visit friends, or get to social activities, or can you carpool or use public transportation?

Many people don’t think about the social isolation factor of staying in their own familiar home, but if an elder doesn’t have friends or neighbors nearby that can check in on them, elders can become isolated in a solitary and repetitive routine that can be deleterious to their emotional and mental health!

Refining the balance of social engagement and doing your own thing is something that is often required for successful aging in place.  Change is the only constant, but many of us will voice concerns about maintaining our “independence” at all costs.  With so many baby boomers reaching elderhood now, it will be interesting to see the myriad and innovative ways that boomers meet this challenge.  Apart from their huge number, boomers have a relatively high proportion of divorce and remarriage (blended families) as well as co-habitation.  There really is no “norm” for the boomers in this regard!

I think the best advice for folks nearing retirement and hoping to age in place and otherwise stay put is to consider all relevant options and to make a plan.  I particularly like the Dwight Eisenhower quote in this context:

In preparing for battle I have always found that plans are useless, but planning is indispensable.
In my line of work, I find that people often think that sticking to a plan (or more likely, just some fixed idea about how things would turn out) is the most important thing.  As if life were something we could plan and force execution of the plan!  We are so checklist and task-obsessed in our busy world, we tend to forget that the planning process is the both the end as well as the means – not the fashioning of a solid plan which often must be adjusted and sometimes jettisoned.  This is one of the reasons I often refer to the work I do for clients as helping them identify a strategy.

If you want to think about this aging-in-place notion a bit more, here’s a post from Fidelity about success factors to consider in staying put as you grow older.

One of the factors that can help elders age in place is staying put in a place, a community, a neighborhood, that has plenty of supportive services which many elders will need as they age.  Enter the NORC, the naturally occurring retirement community!

The NORC, yes it’s legit, it’s in Wikipedia!  NORCs have been broadly defined as communities where individuals or couples either remain in or move to when they retire.

Of course what is “natural” in the naturally occurring retirement community is a rather broad and generous concept.  This could be as simple as an apartment complex for elders, a housing development or a neighborhood.  As to the neighborhood concept, this has been well-developed by the NORC Aging in Place Initiative, which is a program of the Jewish Federations of North America.  The full name of the initiative is the NORC-SSP, “SSP” being short for supportive services program, which considers the social services appropriate and necessary to foster independent living for elders.

Some of the important factors include financial considerations, which vary widely among those already retired the “semi-retired” and those still years away.  People are generally working longer, and this is probably a good thing for the majority of people, but some have no choice in the matter.

In my last post, I looked at the importance of having this conversation about aging and caregiving arrangements before there is any crisis.  I often work with people (and their loved ones) who suffer from progressive diseases which practically demand such conversations – those with multiple sclerosis, Parkinson’s disease, ALS, as well as other neurodegenerative conditions which have both a physical and cognitive or mental health component.  Some of these folks will do the planning and have the financial ability to choose a continuing care retirement community (CCRC) which is also a kind of NORC.

As I am often reminded. . . . Aging is not for sissies!  It is, of course, best done with a plan including effective durable powers of attorney and other means to choose in the event of incapacity.

I’ll close with a quote from Ralph Waldo Emerson, who reminds us that human growth is always a possibility, no matter where we find ourselves:

Always do what you are afraid to do.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

 

The Grail of Elder and Probate Mediation: Identifying Obstacles

denver elder law

Ancient Chalice Painting

I have included this painting of a chalice because of its powerful symbolism.  I will put aside the well-recognized religious symbolism (especially among the Abrahamic religions “of the book”) and employ its metaphorical meaning for my purposes here:

A thing that is being earnestly pursued or sought after

The word appears to originate in the Medieval Latin gradalis, meaning “dish” and our English term comes from the Old French graal.  Thinking of the term as a dish, and considering the Latin from which it originates, it’s not a stretch to consider it as in the courses of a meal (our stages of life).  If we think of our life as a long meal, and the dish, bowl or cup as what we have come to think of in our mind as our life and perhaps even its meaning or significance, the grail can serve as a good metaphor for pondering what it is we think or feel we are lacking in this life, as the grail of what has been sought but not yet achieved or attained.

In the context of elder and probate mediation, this grail, this missing part of an elder’s long life or a family’s story, can be harmonious or respectful family relationships.  In my experience, the single biggest hurdle to making the space for a productive engagement to have a conversation about family conflict lies in identifying the sources of conflict.  The conflict may have been careening out of control for years but it has finally crashed, landed somewhere and gotten stuck as a result of a variety of circumstances.  What to do now?

Well, it depends on who is asking and who is willing to “own” the conflict.  There are invariably a number of different perspectives on what went wrong and how to “fix it.” This is the often insurmountable threshold to getting close to any room in which a grail might be found (to use a building metaphor).

Family members typically operate under ground rules for engagement that were established in childhood and people often carry these unspoken rules and assumptions forward into the future.  In fact, this informs many of us about our “life story” and we adopt it as part of our identity, for better or for worse.  So how does that play out in the context of an elder’s health crisis or end of life scenario, when “the chickens come home to roost?”

I have previously blogged about sources of such conflict here, as well as what to look for in a mediator, but I don’t believe I have ever addressed the topic of getting past the “hand wringing” to proceed to mediation.  It strikes me as odd that I haven’t done this before because I have probably had a dozen such conversations over the years with potential clients about what is involved in convening an elder mediation.  This can be distinguished from probate mediation, where there is already some underlying legal proceeding which has at least crudely identified what is at stake and in which a judge may have ordered or strongly suggested to disputing parties that resolution of all or some of the issues should be done in a mediation.  I have been engaged as a mediator in several of these types of disputes (guardianship, estate administration, trust administration).

Speaking is usually a function of thinking, but our chosen words, what they say and convey to others has a multi-layered meaning in the elder and family conflict context.  The grail story, the myth of Perceval or Parsifal, depending on the land or time period of recounting of the story, is essentially about speaking as a function of thinking and interacting with the world and others.  I find it particularly useful in this context of elder mediation and family disputes involving an elder.  If you would like to read more, consider The Speech of the Grail, by Linda Sussman (1995: Lindisfarne Books).

There are two important questions asked by the protagonist of the story.  Both questions are asked from a position of freedom, not bondage flowing from a sense of obligation.  The first question “what ails thee?” is about the power of observation, from an action of paying attention to another’s plight from different perspectives beyond one’s owned limited and perhaps comfortable perspective.    The second question, “how can I help?” recognized the relationship involved and might also be phrased “how can I help myself in helping you?”  This is the initiation of the thinking/habitual speech into the realm of the heart-space.  This is true listening that is usually very difficult, uncomfortable, sometimes painful and often cannot be controlled, leaving us feeling vulnerable.

This posing of these two grail questions is the hurdle, the threshold that prevents most individuals and families from getting to productive conversation about a crisis stemming from the elder family member’s life.  Here is a poem from the eighth century poet Rabia al-Basri about the heart:

In love, nothing exists between heart and heart.

Speech is born out of longing,

True description from the real taste.

The one who tastes, knows;

The one who explains, lies.

How can you describe the true form of Something

In whose presence you are blotted out?

And in whose being you still exist?

And who lives as a sign for your journey?

 

I will close with a question she raises: Can we muster the strength to be signs for the other’s journey?

©Barbara Cashman  2015   www.DenverElderLaw.org

 

The Revised Uniform Fiduciary Access to Digital Assets Act

denver elder law

Siennese Door

This is an important development regarding the Uniform Law Commission’s Uniform Fiduciary Access to Digital Assets Act (UFADAA).  I learned that there is a new and revised version of the uniform law which has in the last few days been approved by the ULC.  It is known as the Revised Uniform Fiduciary Access to Digital Assets Act (2015).  In my last post on this topic in May, I described the short-lived history of HB 15-1189, the UFADAA in the Colorado legislature.

In June, yours truly was interviewed, along with Connie Smith of Fairfield & Woods, for the article “Assembling the Digital Legacy” which appeared in Law Week Colorado.  The article, written by Doug Chartier (sorry, no link as it is paid subscription only), described the ever changing landscape of identifying and managing digital assets for the living (as agent, conservator or trustee) or for the deceased (as personal representative).  The article reads a bit like an obituary for the UFADAA, which was enthusiastically presented in nearly two dozen state legislatures but met stiff opposition from diverse groups including (in Colorado) the Colorado Bankers Association and the ACLU.  Only one state has adopted the UFADAA so far and in most states where the legislation was introduced the UFADAA has already been rejected. This over what is broadly termed as “third party privacy concerns.”  The basic concern would be, to give one example, for those with whom the digital asset owner would have communicated – say via email, and whose private and protected information would be disclosed to a fiduciary acting on behalf of another (as defined in the UFADAA, but generally an agent under a POA, a personal representative of an estate and so forth) without the third party’s knowledge or consent.  It isn’t just about reading mail anymore, or emails for that matter!

Here’s a recent article in Forbes magazine about how forgetting to make plans about digital assets like social media can create post-mortem lawsuits.  One of the spot-on observations made in the article was about the difficulties in transferring digital assets and its potential to create unplanned business succession challenges as well as ongoing estate planning difficulties.  Getting back to the Law Week article, both Connie Smith and I agreed that online services for storage of passwords, usernames and other credentials for online accounts (digital assets, broadly defined) are problematic because of the concentration of personal data.  I give my estate planning clients an organizational “letter of instruction” which has a page for these online accounts and other digital assets. At this time I think the best way to maintain this information is in paper format, which can be easily updated on a personal computer and printed out periodically.  And no, you shouldn’t call the document “my online accounts and how to access them,” but maybe come up with something more creative!

In the meantime, don’t forget about making plans for those digital assets.  Here’s a helpful article from the American Bar Association on this topic.  Unfortunately, I wasn’t able to link to the revised version of the UFADAA on the Uniform Law Commisioner’s website – it does not yet appear to be available there.  I have a word version of the revised UFADAA, but haven’t had the chance to read it while comparing its previous version.  I’m sure that will be a topic of a future blog post. . . . !

©Barbara Cashman  2015   www.DenverElderLaw.org

Longevity, Caregiving and the Need for Advance Planning

Springtime in Italy

Springtime in Italy

This Friday (April 24, 2015), I will be speaking at the AARP Colorado Caregiving Symposium at the Arvada Center for Performing Arts.  For that event, I’m looking forward to a “talk show” kind of interactive format designed to engage the audience.  One of the topics I will be focusing on which is obviously relevant to caregiving – is about how we can better navigate our longevity.  A portion of that will look at some of the important conversations to have and documents to have in place.

      What is Health Care Self-Determination?

All of us will die someday, but the majority of us will be disabled or incapacitated (temporarily or longer) before we die. This is but one of the “side effects” of increased longevity.  Having the difficult conversation now – with your family members, loved ones, even your health care providers – can make a huge difference in the type of care you receive and the stress and strain placed on your family in the event of an incapacitating health crisis.   Information is key to maintaining one’s ability to decide.  Here’s a link to a recent article in Forbes with Dr. Atul Gawande (author of the recently released book Being Mortal) about how paying more for doing more health care isn’t such a great deal.

Identifying your surrogate decision maker (a/k/a agent under a medical durable POA) is the most important first step. Before you name this person and a successor agent, you must have a conversation with them to make sure they are willing and able to perform this important job in the even the need arises.  For them to perform this job, the person giving the MDPOA, the principal, must give some important instructions to the named agent and successor agent. Medical Durable POAs, along with other documents, are effective ways to manage uncertainty, to identify the people you want to make health care and other personal decisions for you if you are unable and to give them instruction about what to do.

       What About a Medical Durable POA?

An MDPOA is a simple, inexpensive, and reliable way to arrange for someone to make health care decisions for another (i.e., give informed consent) in the event the principal is, in the opinion of the health care provider, unable to give informed consent.

The types of decisions an agent can make can be broad or narrow, general or specific and the agent’s authority is typically set for the power of attorney document.  I am in favor of powers that confer broad authority on an agent.  This is for two reasons: it requires the principal have a conversation with the agent about what the principal wants (a conversation about these matters is necessary); and there is little likelihood for confusion about what an agent can do.  I tend to think that a short document is best, given the amount of time that health care providers spend with their patients, it is not a great idea to draft a long and complicated document for this purpose.

       Why Do I Need to Have This Conversation? I Really Don’t Want To!

The cost of death denial in our culture is high.  End-of-life situations involving elders are often fraught with emotionality and conflict, and death’s finality does not often bring peace or resolution to a conflict that involves death and grief for a loved one.  Beyond the emotional costs are also the financial, psychological and ethical costs.  If you haven’t named an agent or made any advance directive or other statement of your wishes at the end of your life (when you are not able to decide for yourself), someone else will be charged with making decisions for you, and this is where we have seen much tragedy and conflict result.  In the past we sometimes called these measures heroic, but the connotation was misleading at best.  The term used now is “futile.”   In addition, having the conversation helps ensure that others know of the existence of any advance directive you have.  That is an extremely important detail if one becomes incapacitated.  Here’s a good New York Times article about this topic.

       Tell Me More About These Health Care Documents. . .

If you want to avoid this medical care and personal care related kind of stress and strain on your loved ones, consider the following documents:

  • Medical (Health Care) Power of Attorney
  • Advance Directive
  • CPR Directive (DNR, a medical document which must be signed by a doctor)
  • MOST Form (recently updated in CO, for elderly, chronically or seriously ill persons)

The Colorado Medical Treatment Decision Act is found at Colo.Rev.Stat. 15-18-101 et seq.  The statute allows any adult with “decisional capacity” to execute a declaration.  “Decisional capacity” is defined in the statute at 15-18-103(6) as follows: the ability to provide informed consent to or refusal medical treatment or the ability to make an informed care benefit decision.  Note that the statute speaks about medical treatment decisions and also health care benefit decisions. Yes, our Colorado statutes cover all the bases here.  Colo.Rev.Stat. § 15-18.5-102 and 103 relate to the health care power of attorney for medical treatment, §15-18.5-104 and 105 (the statutory form for naming the surrogate) allows for appointment of a surrogate decision maker for health care benefits.  Why are these documents so important to have in place?  So that you can name a person in charge and know they will be able to perform an important job for you if you need their assistance.  If you don’t name anyone, there is a vacuum, which can result in a decision or lack of one, by a “committee” of family members.  If there is no MDPOA or the MDPOA does not work as intended, instituting guardianship proceedings in probate court may be necessary.

What If I Need Help With My Doctor Visits to Keep Track of All the Information?

In our fee-for-service based health care system, many patients can be overwhelmed by the choices, decisions and amount of information which must be managed effectively to exercise one’s self-determination in medical care. This is often the case with elders who have suffered a health crisis or have an illness which will affect their mobility or ability to live independently.  Consider enlisting the support of another set of eyes and ears for this purpose, in the form of a health care advocate.  A health care advocate is not only another set of eyes, ears and brain focused on medical decisions, the advocate can provide reassurance and companionship to help ensure an elder gets appropriate care, gets answers to questions and otherwise ensure understanding concerning health care services that are recommended.  If you are thinking about getting a health care advocate, make sure it is someone whose judgment you trust and is someone who is not afraid to ask questions or stand up to authority in unfamiliar or stressful situations.

Now that I’ve returned from my spring pilgrimage, I’m back on schedule for weekly blogposts.  Please stay tuned.

 ©Barbara Cashman  2015   www.DenverElderLaw.org

 

 

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

Mount Hope Cemetery, Rochester NY

Mount Hope Cemetery, Rochester NY

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

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

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

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

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

Hillman, The Force of Character at 93.

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

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

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

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

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

To be continued . . . .

©Barbara Cashman  2014   www.DenverElderLaw.org

Aging, Meaning and Memory

Medicine Bow National Forest

Medicine Bow National Forest

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

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

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

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

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

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

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

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

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

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

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

©Barbara Cashman  2014   www.DenverElderLaw.org

Have You Had the Conversation Yet?

Shadow Selfie

Shadow Selfie

Yesterday morning I attended an informative program put on by the Colorado Guardianship Alliance (of which I am a member) which featured palliative care specialist Dr. Hillary Lum, speaking on Advance Care Planning, Palliative Care and Hospice.  I recently posted a short blog which featured an interactive meeting put on by the Life Quality Institute which featured The Conversation Project.  I returned from the meeting with a helpful booklet that is loaded with end-of-life facts and which can be used to facilitate the conversation which most of us say is really important to have (about end-of-life wishes) but that the majority of us have not yet had with a loved one.  I met with new clients this afternoon and was able to give one of the booklets to them, so I will be able to hear how it may help them have the conversation and communicate wishes with their adult children.  I’ll keep you posted.

By the time you get to be “a certain age” (okay, I’m celebrating a 50-something birthday next week, so please pardon attention), you have most likely had some experience with a chronic or terminal illness of a loved one or a death of a family member that did not die a good death.  Yes, I said good death.  Death is part of life, is contained within life and so I think if we can talk about quality of life we can also talk about quality of death.

Palliative care and hospice care focus on the still much misunderstood concept of quality of life medical care.  Remember the “death panels?!”  I don’t know where people come up with this stuff, but there are folks who think they exist . . .  maybe we’ve watched too many B movies of the sci-fi genre! Here’s a great post by a palliative care doc about those nonexistent faceless federal bureaucrats.  Dr. Lum (getting back to my original topic now) spoke succinctly about the distinctions between palliative care and hospice care.  She shared a great resource called “fast facts” – you can google eperc fast facts and get the Medical College of Wisconsin’s really informative website.  Fast Facts and Concepts provides concise, practical, peer-reviewed, and evidence-based summaries on key topics important to clinicians and trainees caring for patients facing life-limiting illnesses.  It has straightforward descriptions and answers a lot of questions you may not have known to ask about palliative and hospice care and the medical issues attendant to things you might ask your doctor about.

So while I’m on the topic of resources relating to advance planning, the ABA just published its August issue of Bifocal which features as its lead article “Advance Care Planning in a Nutshell.”  Sabatino focuses on the two most basic question we need to tackle early on in the process: (1) Who do you select as a capable, competent and conscientious health care agent (a/k/a surrogate decision-maker); and (2) What kind of information and guidance can I provide to that person and perhaps other loved ones about what I want and what I don’t want in this context.  For some of us, these questions are not so difficult, we may think “my kids already know what I want” or “my spouse is a good mind reader” – but then there is the rest of us!  We may think it’s not good enough to be general and not so detailed about our wishes, that this kind of conversation or documentation requires a fine-tooth comb.  Not so!  While it’s true I recently purchased a crystal ball, I have yet to perfect my skills at predicting the manner and circumstances of a client’s death (hey, wasn’t that an X-Files episode, back a few years?).

One of the reasons that lots of details about end-of-life wishes aren’t really helpful or required – even if we have a chronic illness that limits our life, is that we cannot know all the details around how we would want another to choose in the event we were unable to choose or couldn’t communicate.  Hence, the focus on values and priorities, to let the big picture of what is important to you guide the conversation – and not let it get bogged down in details that will probably never apply.  I think you’re getting my drift now, that it’s a good idea to inform your health care agent about those three aspects of making informed health care decisions: consider the risk, the burden along with the benefit – and how they play out in the context of your values about health care.

I will close with this – while our culture and the American medical-industrial complex has a ways to travel in terms of getting more folks educated about quality of life focused care at the end of life, the Project on Death in America is helping make serious headway in getting better attunement toward compassionate care for the dying.

 ©Barbara Cashman 2014   www.DenverElderLaw.org