Denver probate mediation Archives - The Law Office of Barbara E. Cashman

The Grail Question Continued – What Ails Thee?

Date September 2, 2015

Comments0

A Garden Near Assisi

[Note – this post was published on August 19, but it didn’t make it into my migration to a new server. . . ]

This post is a continuation of my previous post about elder and probate mediation and obstacle identification. The first grail question I examined was “what ails thee?” and it is one which I would like to explore in depth a bit more in this post. What I am looking at in particular in this post is the larger function of seeing that is implied in the question above. What is it that we can see about another, understand about the other’s situation from seeing them and encountering them in a question such as this?

The question is simple and seemingly straightforward, but it certainly goes beyond the obvious and the superficial – but that begs the question. What is seeing, what is our ability to use our eyes, our sightedness, to encounter another person – especially one in distress? Sometimes, in this culture that distrusts anything that can’t be readily explained or measured or understood at some level, we mistake the act of using our eyes for the ability to see. What I mean by using our eyes is the sensory act of using our eyes, as sensory inputs to inform our understanding of the world. What often happens, on the “did you see that?” transactional level of human communication is the confusion of our visual sense of seeing for its sensory utility for its own sake, as if the sense was something generic, that anyone with eyes could see in the same manner. If this sounds farfetched, I will use the example of biomechanics, a popular idea of how the human “machine” works. Certainly, if we are all machines then our standard issue equipment functions in similar ways, right? Well, I’m afraid this is the dead end of the reductionists, and I’ve never been tempted to travel down that path.

So this sense of seeing, or rather more appropriately – the use of the eyes for navigating our environment, often amounts to an act of seeing which serves only to separate us from each other and our world. This is the seeing described above, that which is focused on the material, visible and the “objective” if you will. This is what is normally understood as the typical and usual way of seeing in our everyday world. But this is not so for all of us. There are other ways of seeing in addition to or beyond the use of the eyes.

Here I think of the late teacher, author and a leader of the French Resistance, Jacques Lusseyran and I thank Mark Patrick for telling me about his autobiography, And There Was Light. Lusseyran was left without sight in either of his eyes as the result of an accident at school. His autobiography tells the story of his work as a leader of the resistance in Paris, sought out because he was blind, as well as his time spent at Buchenwald. For my purposes here, in the context of the first grail question, I am looking at his posthumously published work Against the Pollution of the I (2006: Morning Light Press). In the chapter entitled “The Blind in Society” he writes: “Blindness has shown me a space other than the physical one, which only serves to separate me from them and them from me. This is the space where the stirrings of the soul and the spirit come into being . . . Thanks to blindness I learned to read many signs that came to me from others, and that usually escape the notice of the seeing.” Against the Pollution of the I, at 46-47. I find this observation most refreshing in the way it challenges the superficial nature of seeing things and mistaking them for what they appear to be on the surface. It also leads to a conclusion that many of us “sighted” persons are lazy in that we are accustomed to relying on our sight to inform us of certain things in a certain manner and we mistake this surface reality for “all there is.”

Lusseyran’s questioning of the conventional utility of the sense of sight goes further. In another chapter entitled “Blindness, A New Seeing of the World,” he refers to sight as a very useful tool and those who are deprived of it as suffering a heavy loss. But he looks at the senses in a holistic and integrating way, noting that the loss of one sense can allow for the development of another. Than he makes another observation: “But now we are faced with a great difficulty, for seeing is a superficial sense.” Id. At 54. He astutely observes that while the eyes can help us immensely, we should not mistake the tool of seeing with the eyes for its utility alone. He goes so far as to state that without a willingness to go beyond the superficiality of sight, the seeing beneath or beyond the outer surface, no true cognition is possible because we are locked into insisting that the tool itself is the purpose of sight. The beautiful metaphor he uses to illustrate this inadequacy of limiting sight and seeing to the act of visual collection of information is the act of naming, knowing and thereby seemingly knowing the unknowable because . . . we have seen it. He identifies this rightly as idol worship. Id. At 59.

What is our sight, our willingness to see another? What is our ability to know another person for? It strikes me that a function of seeing must be, as Lusseyran observes, the ability to clear away the noise, debris and clutter from our minds so that we can truly think about who we see and what they mean to us. “What ails thee?” can be a mirror for our own suffering and inadequacy to see ourselves reflected in another person.

There is more to us than our visible exterior, our “clay.” The late John O’Donohue has written beautiful poetry which speaks about our clay. Another writer has observed this about our clay:

. . . we are shaped and molded by what we once were and what we will become. As the ultimate spiritual treasure, the spark of knowledge that inspired human faith becomes an internalized knowledge that will erase temporal history and return us intact to the primordial self.

John Herlihy, “Profile of Unfinished Man” in Psychology and the Perennial Philosophy, at 122, Samuel B. Sotillos, ed. (2013: World Wisdom).

This examination of what constitutes “seeing” in the context of the first grail question just might be followed by a similar pondering of the second question. . . .

©Barbara Cashman 2015 www.DenverElderLaw.org

The Continuing Adventures of the Psychopomp: What is the Vocation of a Psychopomp?

Date July 1, 2015

Posted by Barb Cashman

Comments0

Inside the Rocca Maggiore

This is the first of a series of posts about our death-denying and death-phobic culture and the “usefulness” of a psychopomp as a means of understanding the meaning behind the denial and the denial of meaning. If using the psychopomp seems like an odd choice for such a journey, please bear with me and know that these posts will be concerned with the meaning that is behind the fear and the denial.

To review briefly, a psychopomp is a conductor or guide of the dead to the world beyond this place. In this respect, the purpose of the psychopomp is to accompany and sometimes convince a person who has died to let go of the familiar of this world – a person’s identity, expectations, possessions (physical and non-physical), status and many other types of “evidence” of our existence here in the life one has grown accustomed to living. Just as most of us can remember being afraid of the dark, many of us are also afraid of the light.

I would begin with the observation that questions about the meaning of life and the significance of death often seem strange and foreign to us. It strikes me that this is because these questions are part of the human condition but somehow – and quite effectively, according to our post-modern reductionist mainstream thinking, obsessed with the material world as the only “real world” – we have rejected such questions as impractical navel gazing. This notwithstanding the fact that for all of human history, the meaning of life and its significance, have been among the principal problems of philosophy. Only in our recent “scientific” post-modern era, have these questions and their meaning been declared to be meaningless. I think of Dostoevsky here:

Man needs the unfathomable and the infinite just as much as he does the small planet which he inhabits.

Denial of death is essentially the denial of any meaning in death. What is the consequential impact of such denial on any meaning of life? Can the psychopomp assist here or is s/he merely an enabler of our fear of death? Is death denial different from a belief that death is not “real?” What if it is all part of the same mish-mashy stew – as observed by one author that “the affirmation that death is not real, that man has a soul and that this is immortal, arises out of a deep need to deny personal destruction, a need which is not a psychological instinct but is determined by culture, by cooperation and by the growth of human sentiments.” Theodosius Dobzhansky, The Biology of Ultimate Concern, at 78 (1967).

I think there is an important distinction to be made here between first, the death denial as denial of the fear of the unknown, the incapacity of our post-modern mindset to come to grips with reality beyond the objective and measurable and therefore to dismiss its existence and any attendant meaning, to basically pretend it isn’t there. This is distinguished from the second kind of death denial in which the psychopomp may, if you will, play a role. This kind of death denial is qualitatively different as it lends meaning to death as a form of the unknown, giving significance and substance to the mysterious transitions of this life – birth, death and all the transformations of self in-between. Death here in the second type of fear/anxiety is simply part of life – accepted or not, it happens to all of us. But what of the meaning of our dying? Well, this is where I rely on psychopomp.

I think that one of the biggest problems we face, whether it is in the grips of illness, aging, disability or dying – is the meaning of our living and being here. I propose death is like a mirror or our transitory and impermanent existence in any particular form. Death denial is different from the fear of death (thanatophobia), and it in turn is distinguished from necrophobia – the fear of the dead. The former is really a kind of anxiety more than it is a fear. As a kind of fear, it is specifically a fear of the unknown, as none of us knows the manner of our death. What does the fear mean in itself and what does the existence of the fear mean?

I like what Vassily Kandinsky wrote about white and black:

[w]hite,although often considered as no color (a theory largely due to the Impressionists, who saw no white in nature as a symbol of a world from which all color as a definite attribute has disappeared) . . . This world is too far above us for its harmony to touch our souls. A great silence, like an impenetrable wall, shroud its life from our understanding. White, therefore, has this harmony of silence . . . like many pauses in music that break temporarily the melody. It is not a dead silence, but one pregnant with possibilities.

A totally dead silence, on the other hand, a silence of no possibilities, has the inner harmony of black. . . Black is something burnt out, like the ashes of a funeral pyre, something motionless like a corpse. The silence of black is the silence of death. . . . Not without reason is white taken as a symbolizing joy and d spotless purity, and black grief and death.

V. Kandinsky, Concerning the Spiritual in Art, (M.T.H. Sadler, transl). at 48-49 (2013).

We navigate the world of the unknown every morning when we arise from sleep. But yet, the unknown of death and dying seem insurmountable to many of us. What if we draw on something familiar for our psychopomp, say . . . the family dog? In her book “Women Who Run With the Wolves,” Clarissa Pinkola-Estes observed that “[t]his little dog (in the Manawee saga) as psychopomp represents the instinctive psyche. It hears and sees differently than a human. It travels to levels the ego would never think of by itself. It hears words and instructions that the ego cannot hear. And it follows what it hears.” C. Pinkola-Estes, Women Who Run With the Wolves at 131 (1992).

I will conclude this introduction to the series on the work of the psychopomp here with something hopeful perhaps – that the fear of death is essentially the fear of life, that our fears of being separate and distinct from others and our human need to belong derive meaning only from engaging in relationship. That relationship can make possible the broader and deeper meaning and give meaningful context to the mysterious purpose of our existence. I like Richard Rohr’s description of “life as mutual participation” (from his book “Eager to Love” at 234 (2014)) and I wonder why this participation would cease with one’s physical existence. But that’s in another post. . . . !

©Barbara Cashman 2015 www.DenverElderLaw.org

You’re only old once or. . . mindful aging as spiritual practice?!

Date April 1, 2014

Posted by Barb Cashman

Comments2

Swan at Lough Gur

In case you’re wondering, yes, I have a copy of the Dr. Seuss book “You’re Only Old Once!” in my office waiting room. What, you say your kids have never read that one to you? In case you’re wondering, yes Dr. S was OLD when he wrote it, and it was released in 1986 on Mr. Geisel’s 82^nd birthday. It is a fanciful “day in the life” of an elder American. I wouldn’t say it has the same level of incisive social commentary as my Dr. S. faves including The Sneetches (about the stupidity of racial discrimination), The Zax (about the wisdom of integrative negotiation) or The Butter Battle Book (about the craziness of MAD – mutually assured destruction, that Cold War relic we somehow managed to survive). But that might just be because I haven’t read this book to my kids at least fifty times. (Maybe they can read it to me in a couple more years, if I haven’t misplaced it by then.) My other Seuss favorites are numerous – oh, I don’t have the space for a discussion of Yertle the Turtle or Horton Hears a Who. Maybe in another blog post though.

If you’d rather listen to someone else reading the book (with the pictures of course) check out this youtube video of it. Okay, back to the aging and April Fool’s theme . . . I am always [as a baby-boomer] struggling with coining a term for the special form of forgetfulness, cognitive compromise, dementia, whatever[!] that affects those of us who are elder law attorneys of a certain age. I think I remember writing a blog post once about dementia being contagious.. . . So here goes. A colleague and I were recently discussing our experiences with mental health challenges. I thought this topic would make a great blog post topic, particularly for April Fool’s. Here are a few suggested additions I propose for the DSM-VII:

Attention Surplus Disorder (ASD) – sometimes mistaken for OCD and often referred to as “nervous Nellie” syndrome, this occurs when a person’s quality of life is threatened when their sleep is interrupted by the looming prospect of overdue library books, and their vision is impaired by hyperfocus on the physical meaning of the dark circles under the eyes or formation of crow’s feet on the face of their partner.

De-mentation – this condition is practically reaching epic proportions as nearly all Americans have “smart phones” which means that as our phones become progressively smarter with the latest technology, we, the operators of our smart phones, get dumber all the time. For example, when was the last time you actually remembered someone’s mobile phone number (without having to look it up on your smart phone)????

Displasia – pronounced “dis-place-yeah.” This behavior is characteristic of the opposing spectrum of the obsessive-compulsive disorder, basically it is evidenced by a person spending exponentially more than the average forty-five minutes per day looking for a particular paper on their desk or some place in their office.

Paranoid Cybercosis — is a 20^th century and present day phenomenon, the disorder based on a vaguely formed conspiracy theory that yes, just like in all the great sci-fi movies of the last millennium, the machines are out to get us.

Reduplicative paramnesia – the belief, delusional at least 50% of the time, that a location or place has been duplicated and exists in another place at the same time. For older adults, this can sometimes involve time travel that is otherwise known as “déjà vieux” and sometimes confused with “déjà vu.”

Stendhal syndrome (I remember him from my French class in college) is a psychosomatic illness that can strike when a person is exposed to a large amount of beautiful things or breathtaking scenery in a short time. If we have spent our entire lives merely surviving and tolerating our existence, beauty can be quite upsetting!

Trichotillomania – this is exceedingly rare in those of us of a certain age, because as my grandmother once explained to me, when you get old, there isn’t as great a need to shave anymore. This one is the urge to pull one’s hair out, basically from any area of the body that still manages to grow hair.

So, you’re maybe wondering . . . what’s this link between humor and spirituality? I haven’t read this book, and I didn’t know the Jesuits had a lock on this, but in 1989 James Martin, SJ, published Between Heaven and Mirth: Why Joy, Humor and Laughter Are at the Heart of the Spiritual Life. On a similar note, here’s a link to a PBS Frontline interview with Rev. Jennifer Brower, a Unitarian minister. Her premise is that the aging process affects spiritual life as a result of the developmental process of aging. I discovered there is even a Journal of Religion, Spirituality and Aging! Who knew?

So let’s hear it for April Fool’s Day and the glorious and pervasive myth of the fool, Loki, trickster, clown, and all those other wise fool names, mythological and archetypal. Here’s to Coyote’s medicine, may it lighten our hearts, increase our wisdom and bring us clarity of sight.

©Barbara Cashman 2014 www.DenverElderLaw.org

What Should I Look for in an Elder/Probate Mediator?

Date May 29, 2012

Posted by Barb Cashman

Comments2

If you are at the point of looking for an elder or probate mediator for a dispute that relates to:

• Health or medical care decisions

• Housing Concerns, Assisted Living or Long-Term Care

• Powers of Attorney – Health Care and Financial

• Dementia or other cognitive, physical or emotional decline

• Advance Directives and End-of-Life Decisions

• Respite care and Support for Caregivers

• Independence and self-determination vs. safety issues

• Suspected abuse, neglect or self-neglect

If you are in the midst of a legal proceeding and are exploring alternatives, either with or without legal counsel, such as:

• Estate or Trust administration and Distribution conflicts

• Guardianship or Conservatorship proceedings in probate court

You may be interested in speaking to an elder/probate mediator about resolving your dispute in mediation. The major benefits of mediation include:

• A confidential and safe setting to discuss private family issues

• Ability to retain control of the outcome of the process, as opposed to litigation – where a judge decides

• Creative outcomes can be crafted after brainstorming and evaluating various options with a mediator

• Participation of family members and others in mediation sessions

• Mediation is less expensive and much faster than going to court

But one of the concerns you may have is about what to “look for” in an elder/probate mediator. First a detail – I refer to this type of mediation as “elder/probate” or “elder and probate” as distinguished from “elder and guardianship” which is more common in other parts of the country, because the term “elder and probate” includes guardianship, conservatorship, estate and trust administration. In January 2012, the Canadian Centre for Elder Law (British Columbia) published a 195 page report entitled “Elder and Guardianship Mediation.” Unfortunately, it appears that the report is no longer available online as it was in January 2012. I liked the report because it is carefully researched (599 footnotes) and has useful appendices include reference materials.

What I find helpful from a consumer’s perspective are the parts of the report that zero in on ethical issues elder and probate mediators face as well as some of the standards of practice recognized by mediation organizations. These are particularly useful in Colorado, because the State of Colorado does not certify, license or otherwise regulate mediators.

It gives a background of mediation’s core ethical standards: voluntariness of participation (this notwithstanding the fact that a judge may order parties to mediation); confidentiality of process; and impartiality and neutrality of the mediator. The universe of elder law issues which are appropriate for mediation are outlined above, but generally concern most types of inter-generational or multigenerational family disputes. These include any matters which are referred to mediation by a judge in probate court.

According to the report (at 36-48) some ethical issues that elder/probate mediators and participants may encounter include:

• Power imbalances among disputing parties that may need to be identified before mediation is determined to be appropriate

• Mediator’s ability to remain impartial (this is important in mediation because it does not have the “checks and balances” of procedural fairness that is built into litigation process)

• Self-determination and capacity to participate in mediation (here an elder adult may or may not be present at the mediation and may be supported by another person)

• Accommodation of participants and ability to support parties’ participation in process

• Confidentiality – this is one of the key benefits of mediation, and in a multi-party mediation or where health care or support professionals may be involved, this can be challenging

• Suspected abuse or neglect – keep in mind that Colorado, unlike most states, does not have a mandatory elder abuse reporting statute – this issue in the mediation context is controversial and should be handled with care

• Mediator competence – as stated above, Colorado doesn’t certify or license mediators, so this can be challenging to identify what “mediator competence” looks like in the elder/probate context. Helpful here is the ACR Section on Elder Decision-Making & Conflict Resolution’s “Elder Care and Elder Family Decision Making Mediation Training Objectives” from 2011, available here

This information is provided as a number of suggested questions to ask when you are interviewing a mediator. Feel free to ask questions!