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

 

Inherited IRAs in light of last week’s US Supreme Court decision (Clark v. Rameker)

Ralph Carr Justice Center Colorado Supreme Court Courtroom

Ralph Carr Justice Center Colorado Supreme Court Courtroom

Everyone knows what an IRA is – right?  We think IRAs have been around a really long time, but they only came into being in 1975 with ERISA legislation, and Roth IRAs came in 1997.  IRAs are classic nonprobate property that someone can pass to others without probate in many circumstances.

Q: What happens if I complete the beneficiary designation form?

A: Your beneficiaries will have much more flexibility and protections (especially on the tax front).

Q: What happens if I don’t bother with the beneficiary form?

A: Well, you won’t be around to find out – right?!  Here’s a link to a Colorado Business Magazine article about the importance of designating a beneficiary to maintain that flexibility.

Some handy IRA vocabulary words:

  • RBD – required beginning date (701/2 years of age), after which you are required to withdraw the
  • RMD – required minimum distribution, an annual distribution.

Here it is important to consider whether the decedent died after his or her RBD.  If she or he was already receiving RMDs, you will want to determine whether the distribution for that final year needs to be paid. Be sure to check with the account custodians to determine if the distribution was made before the date of death.  There are two basic types of IRAs that can be passed along to survivors:

Spousal IRA

This is generally the simplest to accomplish and a spouse will want to consider among several choices –  to roll them over into an IRA, start receiving benefits, have them paid out in a lump sum, or disclaim some portion to minimize estate taxes in the spouse’s estate.

Inherited IRA

There is an important distinction initially regarding whether the beneficiary designation was made out to the beneficiaries or left blank. . .  There is generally much more flexibility when the designations are completed.

So here’s a question . . . . Whether inherited IRAs are generally exempt from creditors depends on where you live! Are these funds still qualified and exempt, or are they just another inherited asset?

In an inherited IRA scenario, a beneficiary (often an adult child) will need to take out the RMD in the parent’s IRA every year and declare that as income.  In addition, the IRA cannot be added to by the inheritor.  You might be wondering what types of protections are afforded inherited IRAs from the creditors of the inheritor.  Well, I can say with all lawyerlike confidence . . .  it depends.  Under Colorado law, specifically Colo.Rev.Stat. §13-54-102(1)(s) there is an exemption from judgment creditors for certain types of retirement accounts and benefits.  The definition includes IRAs “as defined under Section 408 of the Code” (this would be 26 U.S.C. §408(d)(3)(C)(ii).  Under the Bankruptcy Abuse Preventive and Consumer Protection Act of 2005 (BAPCA), many states opted out of the federal bankruptcy exemptions in favor of state law exemptions.   Read more on this topic here from my learned colleague Laurie Hunter.

It is important to consider that there are at least three different layers to the inherited IRA treatment: federal tax law, state law relating to bankruptcy and what creditors can collect, and bankruptcy.  Until just a few days ago, when the U.S. Supreme Court ruled on a writ of certiorari on the U.S. Court of Appeals for the Seventh Circuit’s 2013 decision, In re Clark, there was a split among the federal circuit courts of appeal – you can read more about it here.

 The Federal Circuit Courts of Appeal Were Split Over the Meaning of the Phrase “Retirement Funds”

Two federal courts of appeal – the Fifth and Seventh Circuits (whose decisions were binding in the regions that they cover – Colorado is part of the Tenth Circuit) had come to opposite conclusions, while interpreting the meaning of the same term. In 2013, the Fifth Circuit decided that the phrase “retirement funds” in the bankruptcy exemption statute quoted above means any funds “set apart” in anticipation of “withdrawal from office, active service, or business” and that the statute does not limit “retirement funds” solely to funds of the bankrupt debtor, so long as the funds were originally “set apart” for someone’s retirement. In re Chilton, 674 F.3d 486 (5th Cir. 2012). Once the funds were set apart for retirement, they maintained that same character for bankruptcy exemption purposes. The court thereby permitted the debtor in Chilton to exempt all of a $170,000 IRA inherited from her mother.

In Clark, the Seventh Circuit expressly disagreed with the Fifth Circuit, adding that it “do[es] not think the question is close.” The Seventh Circuit observed that, while inherited IRAs do shelter money from taxes until it is withdrawn, they lack many of the other attributes of an IRA. That court noted in particular that the beneficiary of an Inherited IRA is prohibited from rolling those funds over into his or her own IRA and from adding her own funds to the Inherited IRA. The beneficiary must take distributions from the Inherited IRA within a year of the original owner’s death and complete those payouts over a defined period, often as little as five years, whatever the beneficiary’s age and whatever her employment status. In short, once the original owned died, “the money in the [I]nherited IRA did not represent anyone’s retirement funds.”   That court of appeals declined to extend the character of a decedent’s retirement funds into the inheritance context and therefore decedent’s daughter could not then use that money as her own retirement savings, and it became no different from an inherited certificate of deposit or money market account: non-exempt and available to distribute to the daughter’s creditors.  That was the essence of the split in the circuits.

 Just a few days ago, the Supreme Court ruled unanimously in Clark v. Rameker that inherited IRAs are not protected in bankruptcy.  Here’s a link to the SCOTUS blog coverage of the decision.  The USSC followed the line of reasoning of the bankruptcy court and of the Seventh Circuit, disallowing the attempt by petitioner in bankruptcy court, Hedi Heffron-Clark, to exclude the funds in the IRA from the bankruptcy estate using the “retirement funds” exemption under Section 522 of the Bankruptcy Code, which exempts tax-exempt retirement funds from a bankruptcy estate. Just in case you are an insomniac and want to read the entire decision, rendered June 12, 2014, here it is in pdf format.

I still think that, notwithstanding the USSC’s ruling, inherited IRAs are  an important legacy for a parent to leave an adult child, and it is important to not underestimate the “emotional” value of the money from a deceased parent’s retirement savings for the use of a child’s retirement.  But beware, they won’t be protected from an adult child’s creditors in a bankruptcy proceeding.  So please remember that an IRA and an inherited IRA are not really the same animal!

 ©Barbara Cashman  2014   www.DenverElderLaw.org

 

The Cultural, Social and Socioeconomic Aspects of Elder Law

14_04 blog pics 001

Harry Moody’s page about medical model for elders

 

In case you’re wondering about the origin of this post, it is the title of a continuing legal education panel I participated in last week which was sponsored by the Boulder County Bar Association.  Other participants were elder law attorneys of diverse backgrounds including Ayo Labode, Jodi Martin and Lorenzo Trujillo and the panel was moderated by Martha Ridgway.  A focus of our conversation was about the challenges in meeting our clients where they are now, and recognizing from where they have come.  Listening carefully is an important skill in this regard.  Each of us was asked to contribute a useful document for the materials.  I chose an old favorite of mine from the University of New Mexico – the Values History: A form to assist you in making health care choices in accordance with your values.  This important document is available online in pdf format for free download here.  There are other resources from the ABA that are also helpful to start the difficult conversation about end of life choices.

For today’s post, I will focus on the health care questions in the context of the cultural and socioeconomic factors that affect each of us – whether it is from our family of origin, our family of creation or our family of choice.  I’ll start with the history of informed consent.   Informed consent has simple and more nuanced definitions that are situation dependent.  I will quote from a good overview I found from the University of Washington School of Medicine, written by bioethicist Jessica de Bord:

What are the elements of full informed consent?

The most important goal of informed consent is that the patient has an opportunity to be an informed participant in her health care decisions. It is generally accepted that informed consent includes a discussion of the following elements:

  • The nature of the decision/procedure
  • Reasonable alternatives to the proposed intervention
  • The relevant risks, benefits, and uncertainties related to each alternative
  • Assessment of patient understanding
  • The acceptance of the intervention by the patient

I have previously blogged about the tragic history of “informed consent” in the context of World War II, the Nazi doctors and the Nuremberg trials.  In this country we have the recent and shameful legacy of the Tuskegee Study, which is a legacy of the disenfranchised that informs many African-Americans’ experience of our health care system and the allocation of its resources.  I thank my friend and colleague Ayo Labode for including reference to this study in her comments at the CLE.

The Tuskegee Study took place in Macon County, Alabama, where 600 poor and illiterate African-American men were enrolled in the study.  The men were offered many things for their participation, including medical exams, meals on exam days and burial stipends.  The study was commissioned by the U.S. Public Health Service and it was called the “Tuskegee Study of Untreated Syphilis in the Negro Male.”  What the participants (and their families) didn’t know is that the study, begun in 1932 and concluded in 1972, was non-therapeutic.  This nontherapeutic study continued even after the introduction of penicillin as treatment for syphilis by 1947, but none of the participants were offered or given the treatment.  In 1972, an Associated Press journalist broke the story of the 40 year long nontherapeutic study.  In 1997, President Clinton gave an apology for the study.  Here is an excerpt from the President’s remarks that is particularly relevant to the topic of this post:

The legacy of the study at Tuskegee has reached far and deep, in ways that hurt our progress and divide our nation.  We cannot be one America when a whole segment of our nation has no trust in America.  An apology is the first step, and we take it with a commitment to rebuild that broken trust. We can begin by making sure there is never again another episode like this one.  We need to do more to ensure that medical research practices are sound and ethical, and that researchers work more closely with communities.

So in order for each of us, as people and as elder law attorneys working in a field with so much psycho-social and emotional content, to be able to respect each others’ differences – we first must recognize them.  Each of us, as adults, needs to confront the difficult questions of who we will choose to be our surrogate decision-maker (agent under a medical POA) in the event we are unable to decide, and we need to talk about what we want in end of life care.  If we are to honor our self-determination and autonomy in our dealings with the medical-industrial complex, we must take the necessary steps now.   This will be my final installment on the May is Elder Law Month theme for this year.

©Barbara Cashman 2014     www.DenverElderLaw.org

April 16, 2014 is National Healthcare Decisions Day!

Bridge on the Maigue at Adare Manor

Bridge on the Maigue at Adare Manor

What, you say you haven’t yet seen the greeting card celebrating this event?  Well, it might contain a warm greeting along the lines of “thank you” if someone you love has executed a health care power of attorney or other important medical decision-making document.  It could express this sentiment of gratitude for the peace of mind that comes from advance planning so as to preempt any emergencies that often give rise to stress and conflict.

Really – I don’t think the greeting card idea is that far-fetched . . . !

Okay, back to the title of this post.  You can visit the national site for the 7th Annual National Healthcare Decisions Day here.  You can also visit the Colorado local Life Quality Institute’s link to their very informative page about advance planning and that page has Colorado specific documents.  Keep in mind that each state has its own laws around advance planning and patient self-determination, so it’s good to have a state-appropriate document!

Some of you have heard about the Denver Death Café, a place to chat about end-of-life issues and mortality.

A good resource to help people get started in the often difficult conversation around end-of-life wishes is The Conversation Project, started by journalist Ellen Goodman.  The project recognizes the important fact that most people recognize that making sure family members aren’t burdened by difficult decisions around end-of-life care, but that not nearly as many of the folks who think the conversation is important have actually had that conversation.

Each of us knows our days are numbered, but like so many people, we get caught up in our daily life tasks and we often neglect the important tasks in favor of the urgent ones.  One easy way to get started in Colorado is to go on the DMV site and add an emergency contact to your driving record.  Once you do this, you might consider becoming an organ donor if you don’t already have that little heart on your driver’s license.  The next step is a conversation with family members about the “what if’s” and the “this is what I want when . . . “If you start small, it may not seem like such a daunting task.  Besides, there is lots of support available to you if you are inclined to have the conversation.

We are all familiar with the expression “carpe diem” the Latin term for seize the day.  Its origin (according to Wikipedia) traces back to Book 1, number 11 of the Odes, written (in Latin) by the poet Horace.  The expression has come to mean “embrace life” because how much time we have left is uncertain.  I think the broad usage of this expression, which appears on bumper sticker and T-shirts, is an important message but that it has perhaps become watered down to suit the purposes of advertising. . . .

So I will introduce a “new” ancient term for purposes of my blog post today about paying attention to opportunities: kairos.  Kairos is a definition of time.  We are all familiar with the English words based on its Greek counterpart chronos, but very few are aware of kairos, this other term for time.  I have to say at this point that I am grateful for having studied a few foreign languages in my life, as I have been able to develop a sense for how the world is viewed differently by the speakers of a particular language.  We so often mistake our world for what we call it and how we name it.  We often forget all the myriad ways of apprehending and encountering all the familiar as well as the unfamiliar.

As Wikipedia points out:

The ancient Greeks had two words for time, chronos and kairos. While the former refers to chronological or sequential time, the latter signifies a time lapse, a moment of indeterminate time in which everything happens. What is happening when referring to kairos depends on who is using the word. While chronos is quantitative, kairos has a qualitative, permanent nature. Kairos also means weather in both ancient and modern Greek. The plural, καιροί (kairoi (Ancient Gk. and Mod. Gk.)) means the times.

This idea of time is a new concept for most of us – that there is a notion of time that is non-linear, and of a quality as opposed to quantity.  Most of us live by chronos, chronological time, but there are other aspects and qualities of time.  English does not carry the distinctions that are implicit in other languages.  In this respect of counting, of numbered days, chronos (NOT to be confused with Kronos or Cronus for you mythology lovers) may be a harbinger of death, as it is finite for each of us in this life.

But what about kairos, what kind of time, the quality of our existence, not its measure?  For many of us, this simply doesn’t count because it doesn’t “add up” and we can’t readily exchange it as the reducible currency of so much of our modern existence.  How many instances of “right now” are there in an hour? What is the present as something measurable if we are always counting the past and measuring the future?  Kairos represents the quality of time as immeasurable, an eternal right now that is the only time that we really have.  The chronological time is what we count, not what we experienced or will experience.

I have written about kairos in a previous blog post and will undoubtedly write more about it in the future.  In the meantime, take this opportunity to live in kairos and have the difficult conversation on this day!

©Barbara Cashman 2013     www.DenverElderLaw.org

When Death is Not Death: a Reprise

 

Waterton Waters

Waterton Waters

Perhaps a more appropriate title would be “when dying is not dying.”  This is a follow up to an earlier post about “brain death” for organ donation purposes and how the use of medical technology can ethically complicate a person’s dying.  The Boston Globe had a good article about a source of interference for a terminally ill person’s otherwise natural dying process: the implantable cardioverter defibrillator.  Turns out that prolonging life for someone with a chronic disease can have repercussions when the person is dying of a terminal illness or other natural causes.  Read the article “Lifesaving implants complicate end-of-life care” here.  Another troubling issue which is broader than that of the ICD deactivation is when a pacemaker-dependent patient is terminally ill and requests deactivation of the device.  Doctors distinguish between the ethical decisions of these two actions.  You can read a medical journal article about the 2008 Guidelines for Device-Based Therapy of Cardiac Rhythm Abnormalities here.

The implants are basically small, internal versions of the paddles that emergency rooms use to shock patients’ malfunctioning hearts – and these are saving many lives. But in some cases they also are making the act of dying, the process of letting go and saying goodbye much harder, because they are forcing terminally ill patients and families to make wrenching decisions about turning them off. The devices subject some dying patients to painful jolts and can prolong their suffering.  These jolts to a person’s otherwise dying body are also traumatizing to loved ones and can make the dying process more difficult in unanticipated ways.

Implants aren’t the only complications for end of life issues facing an individual or family.  TPN or total parenteral nutrition has served to extend many lives which would have been shortened due to short bowel syndrome or intestinal failure.  As a medical means of extending life for these conditions, this type of intravenous feeding can also complicate end of life care when a person is suffering the effects of another disease process.  Dialysis can stave off renal failure for many years for those with failing kidneys.  What used to be fatal heart attacks and strokes can be more effectively treated in many elders, but the interventions may result in chronic complications or cognitive decline.

Health care POAs and advance directives are much more important for persons with these implants.  Prolonging life and not impeding dying – how do we separate out the two? Is aging and death a natural part of life or is it something that should be opposed as some would argue, essentially that we should be pursuing a “cure” for aging?

I have previously written a post (or two) about the medical definition of “a good death,” and will avoid a discussion of the difficult distinction between quantity versus quality in end of life care.  These issues affect individuals and family members of elders in a much larger proportion, but the issues surrounding medical intervention at the end of a life are issues for all ages of people, children and young adults on life support are much more challenging to us in many ways because these deaths go against the “natural order” of a parent dying before a child.

How to determine what would be a good death is a very individual choice which doctors and medical providers can help facilitate, but they are not the ones properly in charge of making such a determination for a patient or a patient’s family.  Thinking about these difficult questions now and discussing feelings about these scenarios with family members can lighten a potential burden immeasurably.    So what can you do now to start the difficult conversation?  I still like the American Bar Association’s Consumer’s Toolkit for Health Care Advance Planning because it has great topics to break down the process into manageable conversations around issues like Are Some Conditions Worse than Death? and Personal Priorities and Spiritual Values Important to Your Medical Decisions.

These questions are best discussed by family members in advance of a crisis.  The discussion can avert or greatly diminish potential conflict among family members with differing opinions.  Don’t put this opportunity off until it’s too late, especially when so many helpful resources exist to help you get started.

©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

Estate Planning and other Fearsome Topics: part I

des Beaux Arbres en Marbre

You might be wondering about the topic of this post, I’ve written about estate planning in the therapeutic jurisprudence context before, so what is this one about?  It is about  . . .  the dark side, or fear-based estate planning.   Is someone or something – perhaps working together and typically referred to as “they“ – out to get you?  Perhaps to rob your heirs of the rightful proceeds of your estate . . .  !   Who is this nefarious individual or entity?

If you read some of the newspaper ads, are you surprised to learn about all the bad things that could happen to you that you didn’t know about?  “Fear based” estate planning is taking the “nightly news” gloom and doom approach to a very individual and personal situation, creating a problem that may or may not exist, but is something that strikes fear, and offering a solution in a tidy little package with a typically rather large price tag.  Estate planning is too individualized, too personalized to an individual or family’s unique circumstances to leave to a fear-based reaction mode of decision making.  Perhaps this is where I transition to myth buster mode, so let’s proceed.

Myth #1: You Need to Avoid Probate (as in probating a will) at All Costs

Many people have been trained to fear probate, but if you asked them why, it would often be difficult to get a straight answer.  Lawyers, like doctors, must obtain informed consent for their legal services. Informed consent requires that a person’s consent to be competent, voluntary, and informed.   Clients need to be informed of alternatives so that they can make their own informed decisions about how they wish their attorney to proceed.  Fear-based estate planning often threatens this basic requirement.  There may indeed be good reasons for a person or a family to avoid probate, but they ought to be considered in a calm and rational manner.

Since 1973, Colorado has had a version of the Uniform Probate Code.  Probate in Colorado is simplified and the vast majority of it requires no judicial involvement.  Our financial lives in today’s world are seldom simple. Even those of us who are certain that we have updated and appropriate beneficiary designations on our accounts (like a beneficiary designation for an IRA, or a pay-on-death provision for a bank account) can drop the ball over the course of years.

When a person dies without a will, the law that applies to the disposition of the decedent’s estate is known as the law of intestacy.  It is part of our probate code.  Intestacy is designed to approximate what most people would provide in their will, but with some important details left out.  Intestacy can apply in a fairly straightforward manner where there is a “Leave it to Beaver” style family, which is no longer the “typical” scenario.  Modern complications include: married with no children; unmarried committed couple; remarried couple with stepchildren; divorced with minor or adult children; married with assets in a community property state; and a host of other life circumstances that seem to affect the majority of us.

Another option for Colorado probate is to collect an estate via affidavit.  This affidavit can be used where there is no real property involved and (for 2013) the assets do not exceed $63,000.

If there is real property or are probate assets which may include “surprise” probate assets (nonprobate assets which they lack an effective beneficiary designation and which exceed $63,000) then a probate will generally need to be opened.  If you can’t afford an attorney, many judicial districts have assistance available at “self-help” centers.    Many of my colleagues and I assist at these clinics.

At the present time, the statutory filing fee for opening a decedent’s estate is $164.00. Colorado, unlike some other states, does not require judicial supervision of decedent estates (except where there is a will contest or other contested matters which require juridical intervention) and there is no percentage valuation of an estate that goes to either a lawyer probating the estate or the state by virtue of some appraisal of the estate’s value.  Colorado has no estate tax.  The federal estate tax is currently around $5.25 million, so this is not a concern for most people.

Myth #2: Getting a Trust Will Protect Your Assets from Nursing Home Costs and Medicaid Recovery

Medicaid is a federal program for providing health care coverage to aid to indigent persons including children, pregnant women, people with disabilities and older persons.  It is a program for which one must be eligible.  For older persons, one must be sick enough and poor enough to qualify for benefits.   Medicaid is not Medicare.

In Colorado, Medicaid is administered through the Department of Health Care Policy and Financing (HCPF).  This agency really doesn’t care for trusts that some people have created and to which they have transferred title to their residence.  For example, if someone puts their house in the trust’s name and then needs to apply for Medicaid within the five year look back period, there will likely be a penalty, a period of ineligibility based on the amount of the gift (the transfer to the trust for less than fair consideration) and the average costs of care in a nursing home.  It may be necessary for the trust to convey back the title to the person applying for Medicaid so that they can become eligible.  This is not always possible.

A reverse mortgage is another method that some individuals use to tap into equity resources of their home, and these require that the home be titled in an individual’s name, and not in a trust.  Bottom line is that trusts don’t generally work for “keeping your assets out of the hands of nursing homes” where it involves a home that is the primary residence.

I will be back soon with another myth-busting installment on this topic. . . . stay tuned.

©Barbara Cashman 2013     www.DenverElderLaw.org

Who is the Real Beneficiary of a Spiritual-Ethical Will?

This title is a bit of a trick question – by ethical will I refer to a nonlegal document, a personalized writing by someone (usually a person who has written a will, as in the legally recognized document) also known as a testament or legacy letter.  It is often characterized as an aid to the estate planning process, sometimes with the assistance of slogans like “pass on your means with meaning”   or “identify your values and not just your valuables.”  So far in my practice I have had only one client, the mother of young children, include an ethical will as part of her estate planning documents.  There is no “form” for this kind of an endeavor – it is as unique as each one of us.

We make meaning in our lives in many different ways, and an ethical will is one means that has been used for many generations and has ancient origins.    From an historical perspective, there are five broad types of legacy letters ethical wills and they include:

1. Explanation. An explanation is most closely linked to the will, and can

explain the circumstances and logic behind an action or choice directed in

the document. It might offer a statement as to personal reasoning for

the will writer’s (a/k/a testator’s) decision to dispose of his/her assets in such a way. The use of

this type of testament remains somewhat controversial because it may be

closely linked to the will and may give rise to misunderstandings which may

create conflict;

2. Expectation. This is a statement – expressed as a desire – about how the

testator would like an inheritance used, to transmit values or guidelines

about how to conduct oneself, or what he or she would like the recipient to

accomplish. These can be particularly useful for parents and grandparents

who desire to pass along their values and indicate their support that such

values continue, and to state them in ways that are personally meaningful to

the writer;

3. Affirmation. These are the words that many grieving family members long to

hear because many of them have a need to know that they mattered to the

decedent. If they didn’t hear such words in life, such healing words in a

legal document may prevent conflicts among beneficiaries;

4. Historical. The historical statement can be a genealogy of family members,

expanded with personal traits, experiences or values, or might explain the history or background of a specific bequest such as a family heirloom or

other prized possession; and

5. Statement of Values. A statement of a client’s personal ethics and values is

often a reflection of his or her own life. Such statements often include

events that formed the client’s character, and can be combined with

historical statements as well.

Generally speaking, clients have the opportunity to think about their lives in the context of transmitting the meaning of their life to another – whether this is a relatively narrow, experience-based kind of wisdom or a broader approach relating to lessons and values.    You can find more helpful information about ethical wills here.

There are many different reasons to consider writing such a document and most would conclude that it is an aid to the estate planning process – even if relatively few of estate planning clients end up drafting such highly personalized documents.    So what is the real benefit to a legacy letter or a spiritual-ethical will?  The benefit is to the author of the document. It offers an invaluable opportunity to consider, to process and write down the important things – ideas, events, values, and other “intangibles” in one’s life so as to transmit to another.  But even if the writer doesn’t end up completing the document, or including it in his or her will, there are important benefits to consider.  Undertaking such an effort creates the space to think deeply about what  a life means, what is important, what you value and what you want to pass on to future generations.  There can be little doubt that the best way of ensuring those values live on is by actually living our lives consistent with such values, but the spiritual-ethical will goes beyond that (and it of course can be no substitute for a life that was lived accordingly to those articulated values).

Far beyond the human’s basic needs is the need to make meaning or sense of one’s life.  Perhaps Ernest Becker was correct when he offered the term homo poetica  or man, the meaning maker, for an alternate name of our scientific classification.  In the middle age of our lives, or perhaps much later at the ninth stage (as identified by Joan Erickson in The Life Cycle Completed), we can gain much from such an exercise, which benefits us likely more than those who read such a document after we are gone.  It can also help those facing terminal illness or anyone struggling with the meaning or lack of meaning in a life, in one’s existence.  Wherever you are in your life, writing a legacy letter or spiritual-ethical will can help process the meaning of your own life as well as validate the importance of love and connection to each of our lives and strengthening the fabric of community.  Each of us is here for a reason and each has something to contribute – writing a spiritual-ethical will can help put together the pieces of a life in surprising and meaningful ways.

©Barbara Cashman 2013     www.DenverElderLaw.org