Freedom or Folly: Who Is or Should be In Charge?

The New York Times article about an elder scam or elder caper, depending on your point of view, raises a lot of excellent questions about the degree of intrusion the so-called able should have in the affairs of the not so able older person.

The story is familiar: an older person with a reasonable amount of money decides to undertake one or another project and ends up loosing all of his or her money. The loss is often due to a combination of larceny on the part of those who are aiding and abbeting the project and more importantly, of the freely chosen desire of the older person.

Benny Kass, who writes for the Washington Post on a number of related topics, described the process for the appointment of a conservator where a grandchild is worried that Grandma is spending her money foolishly. And yes, the courts will perform a thorough inquiry into the question of whether Grandma is really so incapacitated that she can no longer handle her money.

But how do we decide, before Grandma or Dad lets their bills go unpaid and a huge mess accumulates, that he or she is spending their money foolishly, or associating with flatterers who are actually trying to fleece them?

Example, Grandma has a tidy investment, she is well cared for in an assisted living facility. She is lonely and a very nice handyman befriends her. He fixes all of the equipment in her apartment, repaints her living room, to her delight, takes her on shopping trips to buy a new rug, he takes her out to lunch on these trips (of course, she pays the bill), visits often and entertains her. She really loves being with him. She would much rather be with a younger person than the doddering biddies in her facility.

Everyone in the family, all of whom live across the country, is delighted at first. Grandma has a companion who seems just right for her and who is useful to boot. Gradually, of course -- you can see where this is going -- disquieting signs begin to appear. Grandma wants to buy him expensive presents, wants to help him with his medical bills. She has a certain amount of dementia, but on the surface has nothing alarming.

What are family members to do? They have their own lives, children, jobs, friends, in their home towns, far away. Do they visit and take Grandma to visit a gerontologist? Get an evaluation of her mental capacities? One grandchild will argue that Grandma has the right to spend her money as she sees fit, it's hers afterall, and it gives her a pleasure she would never find elsewhere, to shower gifts on her new found friend. A son will argue that the handyman is taking total advantage of his mother, that he needs to be run out of dodge and that a conservator should be appointed to manage her money. A daughter will argue that she has the power of attorney, that she can step in a control Mom's spending.

Mom is flabbergasted at the concern of her children and grandchildren. She retreats into anger. Children, becoming more and more concerned, hire a lawyer. Lawyer advises that they should seek the appointment of the nearest living child as conservator and guardian. They file the petition and get Mom's internist to state that Mom has enough dementia to be incapacitated as defined by the law. Mom gets very alarmed, stops trusting her children, hunkers into her friendship ever more tenaciously. The court appoints a attorney to represent her.

The story ends in tragedy. Mom is alientated from her children; handyman is more closely entrenched in Mom's heart; even if a conservator is eventually appointed, the conservator inherits the problem: how far should he or she go in yielding to the desires of his or her ward? The law mandates that the conservator and or guardian provide the maximum amount of self-determination to the ward.

The children put pressure on the conservator to get rid of the handyman. Mom of course, begins to dislike the conservator and becomes ever more anxious, angry and ensconsed in her idea that she and her handyman should buy a house together and he will take care of her.

Assume that she is able to buy the house and Grandma willingly and happily puts the handyman's name on the deed.

If she were to later change her mind or if her children wanted to reverse the deal, what legal recourse would they have? Can Grandma or the children claim that her dementia should excuse her from her bad deal? If a child can get a contract voided for lack of capacity, can a dementer older person get the same benefit? How can the older person prove that -- despite their desire to enter into the transaction -- they lacked the judgment to do so and a court should void the deal? Does it make good public policy to allow certain states of mind a pass on the liability of freely chosen but later regretted transactions? Where does a legislature and then a court draw the line.

An alternative scenario is for one of the children to bring Mom to live with them. They shower her with love. She loses interest in her handyman as she plunges into the world of her grandchildren.

There are, of course, many other scenarios that could play out. Grandma here is lucky to have children and grandchildren. Many elderly persons have no one. The unscrupulous can take advantage very quickly.

The fundamental questions remain: how to balance the competing interests of the individual, the family (if there is one), the sanctity of contracts freely entered into, the medical and legal definition of incapacity that could help to define the boundaries of a new legal opt out. If medicine and law find that a line can be drawn, what are the risks of endless litigation?

On the more human level, what right does a child (heir or legatee) have to direct the way their parent lives their life or spends their money? Where does love and responsibility intersect with a parent's need for and right to autonomy? How healthy is it for a child or social worker or attorney or conservator to say, "I know better what is good for Grandma than Grandma herself" regardless of her "mental capacity" or judgement? How can an elderly person be protected from the wiles of the unscrupulous, when the elder person is gaining tremendous pleasure in the company of that villain or in donating large sums to televangelists? Should they be protected from themselves? At what point?

The longer we live, the longer we will enter into dementia, the more children and professional caretakers will be called upon to care for aging parents and the more difficult decisions will have to be addressed. With love, compassion, self-awareness, a sense of humor, and a dollop of common sense.

Fwd: God and evolution

-----Original Message-----

From: cforbes@forbeselderlaw.com
Subj: God and evolution
Date: Sat Dec 22, 2007 10:15
Size: 1K
To: Chrisforbesblog.blogspot.com

A friend gave me a book of that title. I will read it but first here is my take: religion is as much a product of evolution as the eye or the opposing thumb or the cockroaches susceptibility to peer pressure.

Religion is the expression of human love that like a giant basket carries many of our deepest, most ineluctable questions . . . . And some of our similarly ineluctable answers.

Religion flows from the conjunction of the human mind and human heartm reaching out to make sense of the world around us.

The problem comes when, as with many human enterprises, we capture those instincts -- like fighting over property or bartering or teaching the young -- in a large organized group, called a bureaucracy, which goes to work to create outcomes, which in the case of religion is to enshrine answers to those questions into a uniformly adhered to set of truths.

What is "true" for one religious bureaucracy is different from the "truth" of another. And in a shrinking world, those truths are held by people in mixed groups. Some become ecumenical and absorb other truths and grow, while others become defensive and inward turned and reject all others.

But the root of the religious impulse is the same: the human expression of a form of love.

Love itself as expressed in the human is the same love seen in all natural forms, a drive for replication. The watermelon has an incredible love of its seeds to create that huge body of fruit flesh to nourrish as compost, its little seeds.

It is the sme love as that of the grandmother who cares for her grandchild, freeing her daughter to reach out to forrage for better and more food.

So, religion is that branch of human love that seeks to create harmony among people and to ask and answer questions about the mysteries.

God is as much a creature of evolution as my cerebral cortex.

Take Thirty Minutes of Light or Take a Vacation in the Sun

Today's Science Section of the New York Times illuminates the mysteries of Seasonal Affective Disorder (SAD), now admitted to the ranks of a true disorder, that evolved in many many life forms, floral and faunal, to respond to the tilting of the earth during its annual rotation. When it gets dark and cold, the body seeks to hibernate, leaves fall off trees, annuals die having long ago sent their seeds -- hardy survivors over the winter -- on for next year's rising. Why we have named it a disorder baffles me, since it would appear to be adaptive. But why quibble.

Some people get very depressed by SAD during the winter months, when days grow shorter and it gets colder. You can evaluate your own body's propensity to respond to short days/long nights by taking the tests, for free, at the Center for Environmental Therapeutics (not a crank site).

It turns out that the best cure for SAD is (drum roll) more light! Apparently, once you have identified the cycles of your receptivity to light, all you need to do is shine some thirty minutes of bright light, and voila, in a few short days, the depression lifts. Much faster results than from taking an antidepressant.

Or, you could take a vacation to a spot on the globe where the sun shines longer.

I couldn't test for my circadian rhythms because the CET site was overloaded. Try again later. Good luck.

Fish on Two World Views

Stanley Fish, who I always thought of as a provocative sometimes infuriating (ly wrong) law professor, and who was also a dean of arts and letters at the University of Chicago, writes today of two quintessential New York experiences, one the endless refractions of character and choice, the other the endless fascination with contingent chaos.

What do I mean? His look at The Fugitive, a 60s TV series that breathlessly propelled its main character into the nooks and crannies of ordinary lives magnified through their stresses on choice, morality, mortality, a later movie (which sounded an awful lot like a low-budget Woody Allen sketch) of the same, but even more plotless spotlight on conflicts between inner worlds, and a new museum of contemporary art that looks like a crash pad after everyone sniffed cocaine and then went out to eat.

And, of course, I liked his admittedly retrograde view of the tensions of the soul as they soundlessly and furylessly confront their mute inner stresses brought on by brief, intense contact with others.

If you have time for a longish read.

From Ancient to Modern: the Meaning of a Clause

The heart of the Second Amendment is to be found the the Latin Ablative Absolute.

As Adam Freedman writes in today's New York Times, forget about the commas and focus on the words: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Freedman points out that "the founders — most of whom were classically educated — would have recognized the first two clauses as stating the foundation for the conclusion. Thus the introductory clause "is [a] rhetorical device [known] as the “ablative absolute” of Latin prose. To take an example from Horace likely to have been familiar to them: “Caesar, being in command of the earth, I fear neither civil war nor death by violence” (ego nec tumultum nec mori per vim metuam, tenente Caesare terras)" The main clause flows logically from the absolute clause: “Because Caesar commands the earth, I fear neither civil war nor death by violence.”"

Freedman argues that "when the justices finish diagramming the Second Amendment, they should end up with something that expresses a causal link, like: “Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed.” In other words, the amendment is really about protecting militias, notwithstanding the originalist arguments to the contrary."

We can look forward to a lot of hand wringing as we await the Supreme Court's decision on the DC hand gun ban that was struck down the by Court of Appeals of the DC Circuit. Freedman's view seem by far the most logical. I can't imaging the Founders arguing over the placement of commas. But more likely worrying about the right of the people to protect themselves through local, well regulated, militias and their need for arms.

(My only question about Freedman's argument is that the Latin places the premise after the conclusion. It really reads, in Latin, "I fear neither civil war nor death by violence, because Ceasar commands the earth." It is the English translation the places the causal premise first. So, I would translate the Second Amendment into modern English as: "People need to be able to own guns in order to protect themselves through well regulated militias.")

How Imperfect the Eye

Many say that it is impossible for the eye could have evolved, because it's too complex and too perfect and elegant. Evolution could never do that (thousands of monkeys on typewriters couldn't write King Lear). Thus, some author, God, must have created it.

But, the eye isn't perfect. Not by a long shot. In A Fin is a Limb is a Wing, in the November 2006 National Geographic, Carl Zimmer points out the comic flaws. The light gathering cells point inward, not outward toward the light. And the optic nerve is in front of the retina -- getting in the way of seeing -- and right in the center of the eye, the nerve plunges through a hole to the brain. Creating the blind spot.

Which is why if you want to clearly see a star, you have to look to the side of it, not at it.

The Mobius and the Circle

A thought for the day, or maybe longer:

"If I am who I am because I am who I am and you are who you are because you are who you are then I am who I am and you are who you are, but if I am who I am because you are who you are and you are who you are because I am who I am then I am not who I am and you are not who you are."

Found on a wonderful blog while hunting for some of those word combinations. It also turns out that the play, "Art" in which this is spoken, was written in French by Yasmina Reza, the same writer who followed Nicolas Sarkozy, the new president of France, for a year during his campaign and who will be publishing her observations and jottings next spring.