Aging, Language and Autopoiesis

Cute Halloween Picture

Cute Halloween Picture

 

I was thinking about elderhood and language, how we think of aging and the words we give it and the life that is continually created as we age and those around us age.  By using the term language, I mean both the structure or system of language as well as the content and substance of the communication,   as well as a means of conveying content and substance.  Of course I should define that last term, autopoiesis – It’s not a commonly used word after all:

the property of a living system (such as a bacterial cell or a multicellular organism) that allows it to maintain and renew itself by regulating its composition and conserving its boundaries. The notion of autopoiesis is at the core of a shift in perspective about biological phenomena: it expresses that the mechanisms of self-production are the key to understand both the diversity and the uniqueness of the living. — Francisco J. Varela, in Self-Organizing Systems: An Interdisciplinary Approach, 1981

From Merriam Webster online.

In essence, autopoiesis is what makes aging and elderhood possible – not just from a biological standpoint (Francisco Varela started there but took the notion well beyond it), but also from a perspective of presence in the world, of consciousness.  The “production” of our living with autopoiesis  is the ever present process of life here – of creation and destruction, unity and dissolution, death and birth, and of change.  I think of a quote from Heraclitus: The sun is new each day.  Contrast that with the oft-quoted: There is nothing new under the sun.  The latter is from the book of Ecclesiastes.  They seem to be polar opposite in expression, but of course they are not if we look at what they describe as a process of change that is endless.

So back to autopoiesis – our growth, our production of our presence depends in no small part on the absence of something, the clearing away through disappearance and decay.  That may be the source of our longing, our searching for that which we lack, which is what keeps many of us moving in this world.  That seeking can be uncomfortable and cause us to feel lonely.  Rabbi Abraham Heschel observed in his book God in Search of Man:

Day after day a question goes up desperately in our minds: are we alone in the wilderness of the self, alone in the silent universe, of which we are a part, and in which we feel at the same time like strangers?  It is such a situation that makes us ready to search for a voice of God.

So that sense of missing something, our aloneness, the absence required by the autopoiesis is something that seems to haunt us!  (Hence the Halloween theme, I suppose!) We often insist that we be able to identify, name, classify and therefore predict this system of life, which includes our own on a cellular level as well as the system of life on our planet and presumably beyond.  But this predicting from our familiarity with the system is inherently unpredictable.  This autopoiesis has, as Bruce Clarke has noted, “a multifarious cultural history, itinerant discursive career and contrarian stance,” thus making it applicable to the context here. . . .

We may experience autopoiesis and not really be cognizant of it in any meaningful way, and this is perhaps one of the ways in which we fail to see the connections between us, as people, as living beings in a larger biological system or environment.  Do we see this aliveness beyond ourselves or do we dismiss or limit it, denying it because it is beyond us, beyond some boundary of who we think we are in terms of our experience or thinking process.

Okay, you might be wondering where I’m going with this autopoiesis notion and aging – but it is clear to me that the ability to recollect, to reflect on one’s life experiences and to create and recreate meaning, is an immensely important function of elderhood.  This is what is known as gerotranscendence, the empirically based theory of psychology which suggests that aging, elderhood, offers a generative aspect of creating new meaning and purpose in life as we age.  It is nothing new under the sun but rather a “re-enchantment with aging,” a huge step in our death-denying, youth obsessed culture.  I’ll finish this post next time, so please stay tuned.

©Barbara Cashman  2015   www.DenverElderLaw.org

The Current Conundrum of Dementia and Consensual Sexual Relations

Assisi flowerbox

Assisi flowerbox

As promised in a previous post, I’m taking another look at this topic which is certain to become more controversial as situations in long term care facilities continue to present themselves.  This topic is of recent relevance due to the acquittal of an Iowa man  who was tried for sexual abuse of his now deceased wife, who suffered from dementia and resided in a skilled nursing facility.  After eight days of trial, the jury deliberated nearly two full days to deliver their verdict.  This criminal trial may be the first time a jury has considered the issue of a person’s capacity to consent to sexual relations when a person has dementia.

The man tried was a 79 year-old former Iowa state legislator (Mr. Rayhons) who was charged with having sexual relations with his wife at a long term care facility.  The prosecution had argued that exceptions to the criminal sexual acts statute did not apply because the husband and wife were not cohabiting.  This case ushers in a new era for the important question of how to balance rights and protections.  As the age of the numerous baby boomers increases, this question will undoubtedly be raised again, particularly when the number of divorced or remarried boomers begin to occupy more space in skilled nursing facilities or other communal living.  Sexual expression in SNFs is not necessarily a taboo subject.   The Hebrew Home at Riverdale (NY) first published their “Policies and Procedures Concerning Sexual Expression” in 1995.  In it is found empowering statements about residents’ rights to sexual expression and special factors apply where a resident has cognitive impairment which implicated the ability to form and give consent.    I’ve come up with a not-very-short list of some of the big picture questions raised by this case:

  • What is the requisite capacity required to consent to sexual relations for an older adult?

 

  • How can this capacity be expressed appropriately?

 

  • Is the nature of consent to sexual relations different for married persons?

 

  • Does the nature of sexual expression change as we age?

 

  • Who is responsible and how is a determination of consent made when the resident has a guardian (a person who is legally responsible for an incapacitated person)?

 

  • How can a health care provider or an adult child interfere with or help support an older person in their choice of sexual expression?

 

  • What is the zone of privacy for a married couple when one spouse lives in a skilled nursing facility or similar group setting?

 

  • Is consent to sexual relations for a person with dementia actually a medical issue appropriate for a doctor to make?

 

  • If a person with late stage dementia is not capable of giving consent, would this make any form of the person’s sexual expression tantamount to rape?

 

 

  • In looking at dementia and intimate relations in long term care facilities – what are the stakes in the rights vs. protection continuum?

 

  • What about divorced or otherwise single folks and all the blended families? How many people are involved in the notification and determination process?

 

  • Is this a capacity issue or an ageism issue? I would say the this involves both issues . . .

In the Rayhons case, the late Mrs. Rayhons’ daughters took their concerns for their mother’s ability to consent to sex by taking the question of capacity to the doctor on staff.

What this case clearly demonstrates is the number of difficult questions presented in identifying the factors for considering sexual expression in the skilled nursing facility.  There is a present need to establish some basic consensus about residents’ rights to sexual expression in long term care facilities.   Groundwork needs to be taking place now.  How many of us consider this question when we visit a facility to consider housing options?

I will note that in this post I am not looking at how sexual expression rights in long term care facilities are implicated when residents also suffer from mental illness or when there are sex offenders residing in the facility.  Colorado does not at this time have any particular laws or regulations regarding sex offenders (or sexually violent predators) in long term care facilities, so it seems unlikely that an applicant for housing in a particular facility would be barred as a result of sex offender status, but the facilities themselves may adopt or follow their own policies in this regard so as to minimize risk to its residents.

©Barbara Cashman  2015   www.DenverElderLaw.org

Colorado’s New Law on Mandatory Reporting of Abuse or Exploitation of Elders

 

An Irish Bridge

Like every other state in our nation, the population of Colorado is getting older.  Longevity and independence can have a price for some of us, and there are many people in our population who are elders and are at risk of exploitation and abuse.

Gov. Hickenlooper signed this act into law on May 16, 2013.  It makes Colorado the 48th state to have such legislation in place. Click here  to read the Act.   Prior to this law, there was no mandatory reporting of elder abuse.  Elder abuse, as defined by the statute, includes physical and emotional abuse as well as financial exploitation.  The new law will provide additional protections to at-risk elders.

So here’s a bit of background:  In 1991, Colorado enacted the Adult Protective Services (APS) system, which is designed to protect vulnerable or at-risk adults who, because of age or mental or physical ability, are unable to obtain services or otherwise protect their own health, safety, and welfare. Under current law, an “at-risk adult” is any person over the age of 18 who meets these criteria.  Prior to Colorado’s new mandatory reporting  law, members of certain helping professions were encouraged to make reports of known or suspected abuse and provides a telephone hotline for all citizens. Among its many provisions, this bill creates a new class of protections for “at-risk elders,” who are defined as any person age 70 or older. The law also makes a number of changes to the APS system.

So – how does it work? Starting July 1, 2014, members of helping professions listed in the statute as “mandatory reporters” are required to report known or suspected abuse of at-risk elders.  (You can read a follow-up post about mandatory reporters here.)  The report must be made within twenty-four hours and the penalty for not reporting is a class 3 misdemeanor.   A person who files a report in good faith is immune from civil or criminal prosecution.

Here’s a brief Q&A on this new law…

What else does this new law provide?

The bill also makes applicable existing penalties for theft-related crimes, caretaker neglect, and making a false report for offenses against at-risk elders.

What about changes in how law enforcement handles these matters?

Law enforcement agencies are required to complete a criminal investigation when appropriate and to provide a summary of investigation reports to the relevant county department of social services and district attorney.

How about training for law enforcement personnel?

The Peace Officer Standards Training (P.O.S.T.) Board in the Department of Law is required to develop and implement a training curriculum no later than January 1, 2014. Training is to assist peace officers in recognizing and responding to incidents of known or suspected abuse and exploitation of at-risk elders. On and after January 1, 2015, local law enforcement agencies are required to employ at least one officer that has completed the new P.O.S.T. training. The board is authorized to charge a fee to participants for the training.

And how will the mandatory reporting be implemented?

The Colorado Department of Human Services  (something about APS and county) is directed to implement, beginning  January 1, 2014, a program to raise awareness among both public and the mandatory reported about mistreatment, exploitation and self-neglect among at-risk adults, including at-risk elders.

What about the work that county departments of social services (typically through APS) have been doing so far with their investigations?

County departments of social services are mandated under Section 26-3.1-103, C.R.S., to investigate all reports of abuse, exploitation, or neglect of at-risk adults. Reports are evaluated and investigated according to the rules established by DHS. DHS rules currently classify responses as a referral, no response needed, urgent and requiring follow up, requiring a response within 24 hours or requiring a response within 3 days, followed by appropriate services as needed. Services can range from assisting persons with obtaining public benefits and providing case management to seeking emergency placements and guardianship of the at-risk adult.

Colorado data shows that in FY 2011-12, a total of 11,000 new reports were filed. Of this number, 4,733, or 43 percent, required an investigation. In addition, a total of 1,750 investigations were carried forward from the prior fiscal year. Overall, cases requiring investigation have increased by an average of 2 percent per year.  You can read more important information about the new law here .

I will be blogging more about the topic of financial exploitation of elders, as I have previously.  It will be interesting to see how the approach of law enforcement agencies toward the financial exploitation of Colorado elders will change with this new law – with the reporting requirements as well as with the training that law enforcement will get.  I am optimistic that this law will help soften the bright line distinction that many law enforcement agencies have drawn between what constitutes exploitation which warrants criminal investigation and prosecution and that which is otherwise civil in nature, meaning that the victim must undertake his or her own civil remedies.

©Barbara Cashman 2013     www.DenverElderLaw.org

A Sense of Place and Aging in Place

 

 

 

Isn’t this an amazing Saguaro cactus? A few weeks back I visited Scottsdale Arizona’s McDowell Sonoran Desert Preserve with a friend.  There were many types of cactus and other vegetation, along with plenty of birds.  The saguaro, especially one that gets “giant” status like this one – is truly a survivor of almost impossible odds.  It is nature’s way.  I also saw a couple smaller and younger saguaro cacti which benefitted from a “nurse plant” to a baby saguaro.  These plants or trees shelter the vulnerable saguaro during critical stages of development, and after making the ultimate sacrifice for the saguaro (the nurse plant takes less and less water and nutrients as the saguaro grows bigger and stronger), it stands for years as a tribute to its sacrifice.  Even in a harsh environment such as the desert, there is much cooperation and biological community.

 

On my drive down to Scottsdale, I travelled through the Monument Valley.  Here’s one of my pictures from the Navajo tribal park there.

Monument Valley

The Sentinel

I love this part of the country.  Along the way, I listened to Richard Rohr’s book “Falling Upward: A Spirituality for the Two Halves of Life.” Watch a YouTube with him here.     It is a wonderful book about aging growing and what we can do with the second half of our lives on a spiritual level.  This is a book about what we can come to understand with our aging, maturity and wisdom – as well as how we can come to terms with mortality and the meaning of our life.  The unprecedented number of people in their 80’s and 90’s has opportunities for meaningful elderhood that few of their forebears enjoyed.  The number will be even bigger as the huge wave of baby boomers gets older.  What will we do with this time in our later years?  Will we continue to enjoy retirement as a long vacation or as a chance to reconnect and engage with our community in meaningful ways?  Each of us has a choice to make about this to the extent we are given this opportunity of what to do with our longevity.

While I was listening to Father Richard (he is a Franciscan priest), I thought about the popular notion of “the bucket list” or some to-do list of things that many people agree they ought to see or visit before they die – as if life experiences, unique and personal – are somehow easily boiled down into some generic list of what a worthwhile human experience is. . . .  . !  Rohr’s chapter on the first half of life is about learning and practicing the rules, being a productive member of society and that sort of thing.  Sadly, many people get stuck there and seeing that there are many others in their company – may think that this place is the only destination.  Hence the “bucket list.”  Who writes their own bucket list – or is it a bucket list because it is agreed upon by a group that it is meaningful?  His reference to falling into the second half of life is a place where a person can be freed from the constraints – internal, external, community.  A journey of free fall that is like a remembering of who we are, what we came here to be and to do.

This reminds me of the lyrics of a favorite Enya song – “Pilgrim” (watch a beautiful video of the Hubbell Deep Field photos with the song as audio here ):

one way leads to diamonds,

one way leads to gold,

another leads you only to everything you’re told….

oh pilgrim it’s a long way to find out who you are.

It is a long journey, but as Father Richard explains and reiterates, the second half  is a beautiful journey of freedom which each of us must discover for ourselves.  I would say it is a pilgrimage of the heart, to remember.  So – where is that physical or emotional or spiritual place for “aging in place”?  Is it in a multigenerational home, is it with the support of or under the care of others, or is it with the “independence” we fancy that we have enjoyed throughout our lives?  That is up to each of us to decide – or not, depending on our own inclination.

 

Perhaps the whole journey of life is as a return from exile, the experience of exile – moving away from the known and its sense of belonging.  Redemption is possible when the way toward home is found, through some place of light, through the illuminated darkness.

Could this aging in place provide the opportunity to move beyond one’s constructed self, the identity of who we have become in our accomplishing phase of the the first half of life?  Might this resulting freedom allow one to consider the wholeness of or our sense of place in the world, to reassess our place in the community?  What about your place in the universe, and in the struggle to wake up?  More on this topic later……

 

©Barbara Cashman 2013     www.DenverElderLaw.org