The Importance of Solo and Small Firm Attorney Disability and Estate Planning- part 2

At the Denver Tea Room

At the Denver Tea Room

This is part two of the previous post about some of the obstacles as well as rewards of solo and small firm lawyers getting their disability and death plans in place.  In the first part I mentioned I was posting this due to my participation in the American Bankruptcy Institute’s Rocky Mountain regional conference.  Next month I will be putting on a similar program for the Aurora Bar Association.

Let’s dive in with (a review of) Kipling’s serving men –

I keep six honest serving-men

 (They taught me all I knew);

Their names are What and Why and When

 And How and Where and Who.

 . . .

The Elephant’s Child, by Rudyard Kipling.

We’ll begin where we left off, with the fourth serving man. . . .

 Here’s the fourth man, HOW . . .

Well, you can always start with a simple plan, which involves another person (the sixth man is “who”).  It’s best to start with a person in mind to help you (known in the appendix as the “assisting attorney”) because it’s often easier to get going with this plan if there are two of you who are holding each others’ feet to the fire, so to speak.  If you can’t think of another attorney with whom you can get started, try a request on the BR listserv or ask on the SSF listserv.

Don’t let the fear of confidentiality and conflicts (as in the CRPC variety) stop you in your tracks.  Any arrangement to manage or take over the lawyer’s practice must include appropriate protections for client confidentiality. The assisting lawyer taking over must beware of conflicts and must safeguard confidential information. The assisting lawyer should be introduced to or familiar with office staff. Staff or family members of an affected lawyer need to know how to contact the assisting lawyer in the event of disability or death.  They need to know where any agreements, powers of attorney, or other planning documents are located. Family members and the PRs should be advised of the arrangements so they know of their existence and any important provisions. Instruction letters could prove invaluable and of course an office procedure manual would be ideal to help locate and decode the affected lawyer’s system.

A more advanced plan and even the super deluxe plan aren’t rocket science as such (unless you have an engineering background).  Lloyd Cohen’s ABA book Being Prepared is very useful in this regard AND it’s available from the CBA’s lending library.

 Enter Kipling’s fifth, WHERE.

This one is up to you! Meet somewhere with your law partner, a trusted colleague, a family member or office staff at a place and time where you can get started on the difficult conversation that leads to . . .  the documents.  The documents need to be kept in a safe place where your assisting attorney  can have access to the documents in the event they must be used or held by a third person like an escrow holder.  At a minimum you will need an easily understood and complete filing system with access by someone who has some familiarity with the system.

   And last but not least, there is WHO.

This can be a very challenging detail – on whom can you rely for this type of assistance?  Will it be asking too much of the person? These are not easy questions to answer, but many of us deal with these questions regularly in representing our clients.  The arrangement you make with the assisting attorney should establish the scope of the assisting attorney’s duty. Will the assisting attorney be the personal attorney for the deceased or incapacitated lawyer? This can be an important distinction. If the assisting attorney personally represents the deceased or incapacitated lawyer, in the event he or she discovered malpractice or ethical violations in any matters, the assisting attorney would not be able to inform the clients and also the assisting attorney could not represent the clients. If it is intended that the assisting attorney take over representation, then he or she would not be the personal counsel for the deceased or incapacitated attorney and must obtain each client’s consent to representation.

The compensation of the assisting attorney should be addressed, as should the matter of staff support to assist the assisting attorney in performing his or her duties and arrangements to pay for these services.  If you are looking for more inspiration about the intersection of (1) what to avoid by planning and (2) how a community of lawyers came together to help one of its own, read this 2013 article from the ABA Journal.

Okay, we’re finished with Kipling’s serving men, and I hope they have helped demonstrate how simple this process can be (note: I did not say it was easy).  Just in case you need a little extra ethics ammo to get you motivated, take a look at the American Bar Association Standing Committee on Ethics and Professional Responsibility Formal Opinion 92-369, December 7, 1992, Disposition of Deceased Sole Practitioners’ Client Files and Property, which provides:

To fulfill the obligation to protect clients’ files and property, a lawyer should prepare a future plan providing for the maintenance and protection of those client interests in the event of the lawyer’s death. Such a plan should, at a minimum, include the designation of another lawyer who would have the authority to review client files and make determinations as to which files need immediate attention, and who should notify the clients of their lawyer’s death.

Many state bars require such plans of solos (our neighbor Wyoming, for example).  Colorado does not – let’s not give OARC a reason to require this of us – plan now!  If you are looking for more ideas by way of checklists, LDPOAs, casualty letters, and other documents associated with this planning, and you are a solo attorney and have a question about my forms, get in touch!

©Barbara Cashman  2015   www.DenverElderLaw.org

The Medical Power of Attorney and Medical Advocacy: Two Roles are Better than One

Centennial Estate Planning

Along the Banks of the South Platte

How can we help elders navigate the daunting medical system and help them make the best choices for their needs and values?  Last week I attended a lunchtime continuing legal education program sponsored by the Arapahoe County Bar Association and presented by Janine Guillen, an attorney and registered nurse.

Janine told of her personal experience with her mother’s health care issues toward the end of her life and how she advocated for her mother while her sister served as their mother’s health care agent.  Many of us come to be familiar with these matters based on our personal experience with elder parents and their health challenges.  Towards the end of their lives, I was health care agent for both of my now deceased parents.  I remain skeptical about a health care system (Medicare) that pays its provider for services per intervention, and the greater the number of interventions for elders, the higher the mortality.  This post will give a brief overview of the two roles along with some helpful organizational strategies that were proposed.

Yes, these jobs of health care agent and health care advocate can be split.  They are often assumed by a single person, but if it is often helpful and sometimes necessary to split up the roles for assisting an elder.  A result of this is that it can often facilitate good communication among siblings and allow adult children to share some of the challenges and burdens of helping an elder parent.

What your health care agent (agent under a medical durable power of attorney (MPOA) can do for you.

Your health care agent is the person named in a medical power of attorney to make medical decisions for you in the event you are not able.  The types of decision 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.  Also, 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 which might complicate matters.

I like simplicity and brevity in the medical power of attorney document.  Here’s a current pet peeve of mine relating to this document.  I am puzzled when I see certain language in a medical power of attorney form that specifically addresses the events in which the agent assumes authority to make decisions on behalf of the principal.  I don’t see this language often, but it usually addresses the effective date of the MPOA, offering two alternatives – effective immediately, or as a “springing power” that allows the agent to act only in the event that “my physician or other qualified medical professional has determined that I am unable to make or express my own decisions, and for long as I am unable to make or express my own decisions.”  This is set up as an alternative in a poorly worded form, but there is in reality only one situation in which a health care provider would consult an agent to make decisions regarding a principal.  The doctrine of informed consent requires a health care provider to get informed consent from the principal, and it is only in the event of the provider’s determination that the principal is unable to give informed consent that an agent would be consulted.  All MPOAs are by their very nature “springing” – meaning that an agent is only empowered to act in the event of principal’s incapacity as it relates to the provision of informed consent for health care services.

I cannot say why this confusing language appears in a couple forms I have seen, but it looks to be a relic from the bygone days of the general (financial) durable powers of attorney.  Since the adoption In Colorado of the Uniform Power of Attorney Act, which became effective in January 2010, all powers of attorney (nonmedical) executed after that date are (1) durable unless they state otherwise; and (2) are “standing” powers, meaning that the effective date is that date of signature by the principal and that the agent’s authority to act is not contingent on some event or determination (a/k/a a springing power) unless specified to the contrary.

What your health care or medical advocate can do for you.

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.

Here’s a bullet list of some of the tips that Janine provided:

  • Go to The Joint Commission website to perform a quality check on a health care organization (hospital or provider);
  • Use language and specific observations that your doctor can use to help diagnose a problem (use fact-specific observations and stay away from online self-diagnosis);
  • Make sure you have executed HIPAA releases for your agent, health care advocate and any others you want to have access to your medical information;
  • Keep an up-to-date list of all health care providers, their specialties and contact information;
  • Maintain a current health history and medications list so that it doesn’t have to be remembered and written down for each provider; and
  • Write down questions you have so that you don’t forget to ask them when you see the doctor.

Here is a link to a Forbes article about how to become a patient advocate.  Many of these advocates gain their skills and come to appreciate the need for such services as a result of coming to serve in that capacity for an elder parent or other relative.  I think it would not be controversial to make the observation that it is not simple for an elder to manage and effectively navigate through our medical industrial complex on their own.

©Barbara Cashman  2014   www.DenverElderLaw.org

Capacity and Incapacity: A Broad Context for Financial Abuse of Elders (part 1)

Fall Flowers at Hudson Gardens

Fall Flowers at Hudson Gardens

 

Aging is a process.  The fact is that most of us, especially my age cohort (the Baby Boomers), really don’t like to think about aging or incapacity or death.  Many of us think that if we eat right and exercise, we’ll just be able keep at it until we’re “done” at some appointed time, like an expiration date.  This post will give an overview of what is known in the law as capacity and incapacity and consider how these factor into financial abuse or exploitation of elders as it relates to this first installment – testamentary capacity (capacity required to make a will).

Lawyers who practice in the field of estate and elder law need to be prepared to make assessments regarding a potential client’s capacity.  The assessment are usually not so simple, but there are many different ways that the assessment can be made.  Most of my colleagues are not really happy about this, but the bottom line is our rules of professional conduct require us to get informed consent from our client, which necessitates a determination of (some level of) capacity on the part of the client.  A special ethics rule (read 1.14 here) applies where lawyers are dealing with a client with diminished capacity – and it is not an easy one to negotiate!

Let’s start with the basics . . . . We have to begin with a fundamental question when we take a look at the term “capacity” and ask ourselves “capacity to do what exactly?”  Sure, I’ve blogged about the importance of a lawyer determining client capacity in the context of elder law ethical issues before, but I’m focusing just on capacity in this post.

This is a fundamental question because like so many other legal questions, the answer begins with “it depends . . . !”  Some of the varying standards of capacity in elder and estate law can be demonstrated among these categories of capacity:

  1. To make a will (testamentary capacity) – including a will with a testamentary trust
  2. To designate a health care agent in a medical power of attorney
  3. To execute a general (durable) power of attorney
  4. To execute an advance directive (living will)
  5. To execute a revocable (or irrevocable) inter vivos (living) trust
  6. To make a gift to another person
  7. To make a gift of real estate to another person (via a deed)

Why should we be concerned about capacity anyway?  Isn’t there a legal presumption of capacity for any person eighteen or older?  Why yes, generally speaking, a person retains capacity unless a court adjudicates a person incapacitated (typically the result of a guardianship under the Colorado Probate Code, and there are guardianships under the Veteran’s Administration as well).  In fact, there is case law in Colorado which specifically states that a protected person (under either a guardianship or conservatorship or both) retains the capacity to make a will.  The appointment of a conservator or guardian is not a determination of testamentary incapacity of the protected person. Section 15-14-409(4), C.R.S. 2004.  In re Estate of Romero, 126 P.3d 228 at 231 (Colo.App. 2005).   See also In the Matter of the Estate of Gallavan, 89 P.3d 521 at 523 (Colo. App. 2004).  This court distinguished testamentary capacity from a protected person’s ability to make an inter vivos trust, which the Gallavan court held was a right vested in the protected person’s conservator. Id.

A person has testamentary capacity if he or she is an “individual eighteen or more years of age who is of sound mind.” Colo. Rev. Stat.  15-11-501.  So if the testamentary capacity standard seems to be the “basement” (the lowest level) as to what level of capacity is required, what measures can be taken to ensure that a will is reflective of the wishes of the deceased testator (will maker)?  First off, the attorney needs to be sensitive to capacity concerns of elder or ill clients, particularly to safeguard a later reasonably foreseeable challenge to capacity and also so as not to facilitate an at risk elder from being exploited by another person.  This is seldom an easy matter and it requires sensitivity based on information gathered by the attorney about the elder client’s situation, particularly when the elder is sick, in the hospital or otherwise unable to travel to the attorney’s office (elder law attorneys do typically make “house calls” for some clients).   And of course, the attorney will be considering what types of services are requested – like changing a living trust, disinheriting a child in a will or gifting real estate to a caregiver.

The evaluations of capacity employed by attorneys vary widely – as do those used by medical professionals.  The legal standard for evaluating a testator’s soundness of mind may be evaluated under either the test set forth in Cunningham v. Stender, 127 Colo. 293, 255 P.2d 977 (1953), or the insane delusion test as described in Breeden v. Stone, 992 P.2d 1167 (Colo. 2000).  The case law cited here is relevant in the will contest setting – after a testator has passed away and there is a challenge to the validity of the will.

So what is it that an attorney can do to make the will she has prepared as “water tight” as possible?  Colorado law no longer requires witnesses to the signing of a will (just a notarized signature), but for those of us who focus in this area of law, most agree that the best practice is to have an “execution ceremony.”  I often joke about this at my final meeting with estate planning clients – that my execution garb (hooded black robe, blindfold, etc.) is at the dry cleaners . . . !   Inappropriate humor aside, an execution ceremony with witnesses is helpful because it converts the will to a “self-proving” will.  The questions I ask the testator in front of the two witnesses are based on the Cunningham test referred to above, to demonstrate  a person has testamentary capacity when the person (1) understands the nature of the act they are performing (making a will), (2) knows the extent of his or her property, (3) understands the proposed disposition of the property in the will, and (4) knows the natural objects of his or her bounty, and (5) the will represents the person’s wishes.  Making a will “self-proving” helps because once a proponent of a will has offered prima facie proof that the will was duly executed, any contestant has the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation by a preponderance of the evidence. In re Estate of Romero, 126 P.3d at 231.  Section 15-12-407, C.R.S. 2004; Breeden, supra, 992 P.2d at 1170.

There is scant Colorado case law detailing what specific knowledge is required for a testator to be deemed to know the extent of his or her property. However, the cases which touch upon this issue, including the Cunningham decision itself, indicate that it is sufficient that a testator comprehend the “kind and character of his [or her] property” or understand, generally, the nature and extent of the property to be bequeathed. Cunningham, supra, 127 Colo. at 300, 255 P.2d at 981; see also Columbia Sav. & Loan Ass’n v. Carpenter, 33 Colo.App. 360, 368, 521 P.2d 1299, 1303 (1974), rev’d on other grounds sub nom. Judkins v. Carpenter, 189 Colo. 95, 537 P.2d 737 (1975).  The amount or value of the assets tends to be merely a detail.  In other words, “A perfect memory is not an element of testamentary capacity. A testator may forget the existence of part of his estate … and yet make a valid will.”  1 Page on Wills § 12.22 (rev. 2003).  In another installment I will continue this discussion about capacity.

To be continued . . . .

©Barbara Cashman  2014   www.DenverElderLaw.org

The High Price of Death Denial

Highlands Ranch probate

Fall Colors near Pine

My best friend in Sacramento sent me a link yesterday morning about (Dr.) Atul Gawande’s latest book:  Being Mortal: Medicine and What Matters in the End.  Thanks Liz!   This title is also inspired by a couple other occurrences too – Halloween and Day of the Dead are approaching soon and this weekend I will be going up for a training flight in a spiffy Cirrus SR22.

I tend to equate thinking about death and practicing dying a little every day (letting go of attachments to what appears to be the status quo) with being alive.  Some folks would question my orientation, but I believe thinking about our mortality is far from morose and gloomy, rather it reminds us that our time here is limited and precious!  Death denial has all kinds of costs associated with it.  Because I am a lawyer, I am more familiar with the legal aspects of denying death (it won’t happen to me, you can’t make me decide what I want, etc.) but there are manifold aspects.

So, I’ll get back on track with Dr. Gawande’s latest book.  No, I haven’t ordered it yet, but I did watch the clip from his interview by Jon Stewart on The Daily Show.  I liked the interview, which was a great overview of the present-day dilemma of aging Americans.

What I found refreshing was that Dr. Gawande was looking carefully at how doctors ask their patients questions about health care values, medical wishes and end-of-life choices.  One might think this is common for doctors, but it is sadly quite uncommon, unless you are talking about the palliative or hospice care docs.  Dr. Gawande had personal experience to draw on for his writing – with his mother-in-law and also his father, who went to hospice care.  But there is still much resistance among doctors (even those who would choose hospice care for themselves) to discuss hospice and palliative care with a patient.

A few things came to mind after watching the short clip.  First, I will continue my policy of pressing further when a client states “my son is a doctor, so he can make these difficult choices for me” – with my response that medical know-how does not translate into emotional capacity to make difficult decisions on another’s behalf.  Next, his observation that it is anxiety about our death which cripples us and leads us to bad decisions.  This cries out for attention in the form of a readily available fix . . . .  click here for helpful materials in pdf format from The Conversation Project (I’ve already run out of them at my office)!  Lastly, the importance of advance planning – at minimum a medical durable power of attorney along with a discussion of wishes with the selected agent – is best done when someone is healthy and well, before the scary subject of end of life care is actually on one’s medical radar.  If we can somehow “normalize” this conversation about dying, we can neutralize much of the anxiety around this topic.

Beyond the emotional costs are also the financial and ethical costs.  In the past we sometimes called these measures heroic, but the connotation was misleading at best.  The term used now is “futile.”  What is the definition of “futility” in medical terms?  Here’s a helpful article from the Mayo Clinic with some contextual definitions of the term.  Over the past several years, much has been made of a perceived government agenda concerning “rationing” of care, but is it the government’s responsibility to decide how much or what kind of heath care we receive?  Is it our doctor’s responsibility to decide if we aren’t prepared to make a decision? No and no! It is our own responsibility to decide, for ourselves and to our loved ones, especially when we do not wish either to be a burden or to be tortured.

How do we make those difficult decisions when we are incapable? Well, if we have a medical power of attorney, that is best place to start. We can also execute advance directives to help solidify the wishes we have communicated to our agent and other loved ones.  Our collective inability to have “the conversation” about health care and end of life wishes costs us dearly – both the patient who didn’t choose in advance and our community, which must collectively bear the cost of such care.

So I will close this post with the theme of festivals and holidays honoring the dead, here are a few of them:

  1. Halloween
  2. Memorial Day (originally known as Decoration Day)
  3. El Dia de los Muertos (Day of the Dead) (the Mexican version of #4)
  4. All Saints’ Day and All Souls’ Day (Catholic)
  5. Bon Festival (Japan)
  6. Chuseok (South Korea)
  7. Gaijatra (Nepal)
  8. Qingming Festival (China)
  9. Pitru Paksha (Hindu)

This list is neither authoritative nor exhaustive.  Bottom line here for purposes of this list – remember the dead by honoring life in the here and know and by expressing love to those you care about while you are able (including having “the conversation” and getting documents in place to memorialize it)!

 ©Barbara Cashman  2014   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

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

 

August 6th Interactive Gathering on The Conversation Project

 

denver elder law

DBG Japanese Garden Stream

 

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

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

©Barbara Cashman 2014     www.DenverElderLaw.org

Baby Boomers, Longevity and . . . Marital Agreements

 

La Mia Famiglia - Gava e Fornelli

La Mia Famiglia – Gava e Fornelli

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

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

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

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

If you sign this agreement, you may be:

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

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

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

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

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

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

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

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

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

 ©Barbara Cashman  2014   www.DenverElderLaw.org

Conscious Living and Dying: Death and Depth – part 1

an empty bench

What is death?  Who dies? What if the fear of death is a simple reaction to our lifelong fear of the unknown or our indifference to immortality?

In my work as an attorney, I have many types of conversations with clients and others about life and death matters.  I wouldn’t have it any other way! For many of us, these conversations and topics about human mortality, the value and essence of a life, and other such topics, often have no other venue for discussion.  While many people may think that such topics are the more appropriate domain of medical professionals and the clergy, I know from my experience that this is the exception and certainly not the rule.  Our compartmentalization of modern life has resulted in so many walls erected in our daily existence that it is often difficult to imagine our lives without those dividers.  But make no mistake, those dividers are of our own making and while they may serve us in many respects, they tend to make us myopic, nearsighted in our assessment what our life is for.

Those dividers are sometimes like the rope floats in a swimming pool, marking the shallow end of the pool from the end of the pool that gets progressively deeper and darker.  The shallow end is the safe, visible, transparent and – surely with so many people splashing around in it – the “place to be.”  We often think of the noise and din of that shallow end as just how things are, even if we might question what all the commotion is about.  Certainly some of the noise must be resulting from happiness and joy, right. . . .?

I like the late theologian Paul Tillich’s two meanings of “deep” here: that it means either the opposite of shallow, or the opposite of high.  He also insightfully observed that there can be no depth without a way to that depth.

What is this place, this world in which we find ourselves?  When we surround ourselves with noise and busyness, it is difficult to remember that silence and repose are also part of our world.  These things are unfamiliar to us and often uncomfortable, painful even, when we are so accustomed to the hustle and bustle of the shallow end.  When we encounter the silence and the repose, we might also encounter unfamiliar questions.  What is our place in the world? Where do we find right relationship to our own imperfections?  Here the shallow end, with its easily recognizable surroundings, forms a barrier to us seeing beyond.  Many of us have seen a glimpse of that deep end and we know it’s “out there” somewhere.  Some of us even venture into it, but in order to experience it, we must shed the trappings of the familiar, the armor around which we have encased ourselves, the known and the identifiable of the shallow end must be abandoned in order to move toward the depth.

Death, the process of dying to be more precise, can be regarded as a letting go.  It is the one certainty of our lives and paradoxically the thing we seem to know the least about, hence the “mortal fear.”  If we think about the millions of people who have preceded us, oops, I mean billions – according to demographer Carl Haub the number is 108 billion.  Read the blog post on the Discover magazine site here.   Different wisdom traditions have many similar teachings about what happens during this process of letting go.  The late professor Mircea Eliade has written extensively about common aspects and themes in this regard. The theme “liberation and letting go” is the title of the latest issue of Parabola magazine.  In that issue I especially liked Andrew Holocek’s article “Preparing to Die,” in which he observes “in many ways, the entire spiritual path is about letting go.  It’s death in slow motion.”  This is what many folks would consider mindful living, mindful of our present attention and the detail that everything changes and that, of course, we will die someday.

Holocek examines the Buddhist notions of bardos, the “spaces in-between” that include the spiritual stages of dying, noting there is a body that dies and then there is another body, the very subtle body, which does not die.  I won’t go into the geography or cartography of soul migration here, but I have cited to Stephen and Ondrea Levine’s “Who Dies?” and Kathleen Dowling Singh’s book “The Grace in Dying: How We Are Transformed Spiritually As We Die” in an October post  about my father’s death.   The topic here is about depth, and why we are so afraid of it. . . .

©Barbara Cashman 2013     www.DenverElderLaw.org

Dying With Grace, Dying With Dignity, part I

September in Marble

This post, along with one for next week,  is about dying – the process of dying to be precise.  I liked this quote from a PubMed.gov  article  I found about dying with dignity:

The definition of dignity in dying identifies not only an intrinsic, unconditional quality of human worth, but also the external qualities of physical comfort, autonomy, meaningfulness, usefulness, preparedness, and interpersonal connection. For many elderly individuals, death is a process, rather than a moment in time, resting on a need for balance between the technology of science and the transcendence of spirituality.

I have been working my way up to writing this post since losing both of my parents in the space of thirteen months – March 2010 for my dad and April 2011 for my mom.  Both were hospice patients at the time of their deaths.

As I quoted the Blackfeet saying in a previous post: Life is not separate from death.  It only looks that way.

What do we really know about death?  It has always been with us, but in our modern culture we are often estranged from it, treating it as some intruder.  I recently checked out Kathleen Dowling Singh’s book “The Grace in Dying: How We Are Transformed Spiritually As We Die.”  I found especially interesting her chapter on the Psychospiritual Stages of Dying.  She describes three basic phases of the final journey: chaos, surrender and transcendence.  For many of us who don’t have any real experience – personal or professional – with dying or death, I think this can seem like a bit of a stretch to describe a process that is as unique as our lives but that looks to be a fairly universal phenomenon – at least among those who go through a process of dying, as opposed to a sudden or unexpected death.

There is a wide variety of how we face death in our individual lives.  Much of it is informed by our culture, which is why I write about grief and death and dying in these posts.  There is much death denial in our country and I think this robs us of important opportunities to honor someone at the end of a life.  This isn’t just an American phenomenon, this estrangement from death.  Here is a link to a German website on the psycho-spiritual aspects of dying.    Denial isn’t always the case of course – I think of an extended family member who planned the menu for the catered meal after her funeral.  But then there was another who refused to speak about her terminal illness, treating that part of her life as some aberration perhaps, disowning it even.

So back to the stages of dying, there is much we can learn about this and it can inform the conduct of our lives in such meaningful ways.  In hindsight, I can see the onslaught of the first stage as my father grappled with the ravages of illness and age.  It comes with a realization that we are perhaps not (as we may have believed all of our lives)  the identity we have come to think of as ourselves, that our separate and personal sense of self is perhaps not all that we are after all.  This is the beginning of the transformative journey to the end of this life.

Chaos.   I remember a dream that my father described to me some months before he died.  He was residing in a nursing home while getting physical therapy every day and trying to regain the strength to return home.  I was pretty sensitive to his difficult situation and I wanted to be able to understand what was going on without asking too many questions.  I certainly didn’t want to ask him any questions he wasn’t ready to answer or consider.  He described the dream to me as follows.  He was on a moving train, travelling in a boxcar for some reason (my dad had worked for the railroad as a switchman during the summer and winter breaks in college).  In this boxcar were some unsavory characters, and for reasons unknown to him they roughed him up pretty badly.  I listened to his description, not really having any idea at that time what it might have meant.  He stayed at this facility for a couple months until he was able to return home, after some modifications were made to the house for his challenges with mobility.

On a couple of my visits to him at the nursing home he expressed concern over leaving my mother as his survivor.  He was concerned about how she would get along, whether there would be enough money.  I tried to reassure him.  These were cherished conversations we had.

After he returned home, his complications increased and then he was placed in hospice care.  His terminal pain needed to be managed better at that point, so he stayed for several days in a hospice care facility.

Surrender.  I learned from the chaplain at the hospice facility that his bags were packed and he was ready for the final journey.  After his terminal pain was under better control, he returned home.  This was a very difficult time for my mother.

to be continued. . . . .

©Barbara Cashman 2013     www.DenverElderLaw.org