Monday, February 23, 2015

Being Mortal


I am not by nature a big picture/policy king of guy. I get quite enough satisfaction reading the law and trying my best to get the details right. When clients complain to me about the unfairness of this or that law, I seldom have anything to say about it. "Write your congressman," I suggest. "As your lawyer I deal with the way the law works today in the county where you live."

On the other hand, I do try to stay current on new popular literature that deals with aging and end of life issues. Most of the new books dealing with aging and death are not that great. One of the exceptions is, Atul Gawande's, Being Mortal. The book contains the author's reflections as both a doctor and a son on the ways in which we die and the ways we have been doing it wrong.

In certain respects, Being Mortal, reiterates the themes addressed in Sherwin Nuland's, How We Die. Nuland's book is a masterpiece and deserves the Pulitizer it received. I enjoyed How We Die immensely, but I like Being Mortal even better.

Gawande's reflections on death and dying are less technical than  Nuland's. Missing are the detailed biological mechanisms by which the major causes of death take us out. In its place are many wise and nuanced observations about the decisions the dying and their families face. Two of the things he discussed were of particular interest to me.

First, he talks about the change in values that appears as we get old. We become less competitive, less acquisitive, and more attached to family. In my gerontology classes this was explained as a developmental stage of adult development, but that is not really an explanation. Gawande reports studies showing that everyone's values--expressed as life goals--change when the time is short. Young people, for whom the future seems like an eternity stretching before them, would rather meet new people than spend time with family and old friends. Old people, who know that their time on this earth will not be long, opt for time with family. However, when young people are told that the end is near--their lives will soon be completely disrupted--they do opt for the family and friends. The change in values is a matter of perspective. Making a career and saving for old age is no longer a value when old age is already upon you.

Second, Gawande finally made clear to me how hospice works. It is not a substitute for treatment. When I go to the hospital I give up my quality of life temporarily so that I will have a great quality of life when I get out. The short term stint of bad quality life is made worth it by the amount of good quality life I will have thereafter. As we age, however, and our bodies begin to fail, the stints of bad quality life in the hospital become longer and the times of good quality life thereafter become shorter and more unsure. The tragedy it the person gives up everything in hope  of a full and active life once he or she is out of the hospital only to die in the hospital bed after months of being kept alive by experts and machines.

Hospice is the choice to have quality of life today. He points out that with some fatal disease people on the average live longer in hospice than they do in the hospital. It is not so much that they are killed by the cure, but rather that quality of life gives them a reason to live. And that, maybe is Gwande's point. Doctors, nurses and social workers need to play a role in giving their patients a reason to live, for without that all the high tech medical procedures will be of no avail.

The book is thoughtful, intelligent and and often poignant. I recommend it to anybody who is mortal.

Friday, February 20, 2015

SAVO and the Training of Non-Professional Guardians and Conservators in Multnomah County.


I deal with a lot of fiduciaries. A fiduciary is someone who acts for the benefit of another. In the world of probate, the fiduciaries are guardians, conservators, trustees, and personal representatives. Guardians and conservators look after incapacitated people. Trustees look after the beneficiaries of trusts, and personal representatives administer the estates of people who have died.

Some fiduciaries do it for a living. They are the professional fiduciaries. Most fiduciaries are volunteers who do it for family. These are the non-professionals. Each group presents a unique set of problems, but it is the non-professionals that have gotten recent attention.

Some of the movers and shakers in the world of elder law and probate got together and created SAVO -- Special Advocates for Vulnerable Oregonians. The organization is designed to shore up some of the weaknesses in the system. One of its activities is to recruit and train people to check up on guardians to ensure that guardians are actually guarding. Another is to give non-professional fiduciaries training on how to do the job that the court has appointed them to do.

This is a good thing.

When it comes to guardianships and conservatorship, I copy the notice from the SAVO website below:

Effective July 15, 2014, all non-professional* guardians and conservators appointed by the Multnomah County Circuit Court must, within 15 days of their appointment date, register for a class that meets the curriculum requirements of the Multnomah County Non-Professional Fiduciary Education & Training Program. SAVO’s “Oregon Fiduciary 101” meets these requirements. Multnomah County registrants should select the date of their session keeping in mind that they must complete Oregon Fiduciary 101 within 60 days of their appointment date.

The cost of the course may be treated as a cost of administration of the proceeding.


The notice for trustees and personal representatives is very similar.

Effective February 2, 2015, non-professional* trustees and personal representatives appointed by the Multnomah County Circuit Court must, within 15 days of their appointment date, register for a class that meets the curriculum requirements of the Multnomah County Non-Professional Fiduciary Education & Training Program. SAVO’s “Oregon Fiduciary 102” meets these requirements for trustees and personal representatives. Multnomah County registrants should select the date of their session keeping in mind that they must complete Oregon Fiduciary 102 within 60 days of their appointment date.

The cost of the course may be treated as a cost of administration of the proceeding.


The result is that if you want the court to appoint you as a guardian, a conservator, a trustee or a personal representative you must be ready to take a class. The class can be taken online but currently the court is strongly encouraging in-person attendance.

So far I have only had one non-professional fiduciary take the class. She was a guardian and conservator for an elder relative, and my impression is that the class gave her a leg up on handling the job in an efficient and competent manner.

Handling money that is not yours can be difficult. When dealing with my own money I can skip a lot of safeguards, decide certain record keeping isn't worth the trouble, and carry access to my funds in my hip pocket. Managing money for someone else should never be like that, and if I am managing money by court appointment, it never is like that. We lawyers often have a hard time convincing people of the importance of the difference. The class presented by SAVO may help.