Every day in America the epidemic of dementia brings ordinary middle class families suddenly into contact with courts and lawyers.  In New Mexico, these guardianship and conservatorship matters go to the same district courts that decide criminal matters and manage complex civil litigation and the proceedings are subject to the same rules of evidence used in trials.  So thousands of dollars, perhaps tens of thousands of dollars, can be spent before the bewildered elder is fitted with a guardian and, perhaps, a conservator. 

My friends who are doctors say they routinely refer their incapacitated patients to lawyers for court proceedings.  I get those calls.  Like most calls from people who need lawyers, the callers (an adult child, the spouse, or a sibling of the dementia patient) ask the typical threshold question: “How much will a guardianship cost?”  I used to respond with the range of the total fees I had billed for cases in the past.  Because I, like other lawyers, charge by the hour, the fees reflected how many hours I had spent.  But the amount of time and effort required for guardianship cases is skyrocketing.

Today, I am not so quick to announce any estimated range of how much a guardianship will cost . . .  and I never assume that the person calling to inquire has correctly self-diagnosed the problem.

The price range of the adjudications of incapacity that I have been involved in is $500.00 to $55,000.00. Probably the only reason my experience includes proceedings whose total cost is under $5K is because I have been doing guardianships for over 25 years—years ago things were simpler.  Since my first guardianship in 1985, courts and lawmakers have become more and more focused on the rights of people who no longer can make decisions for themselves.  These due process concerns have expanded and refined the fact-finding process.

 Of course, due process is a good thing.  But in the American system of justice, fact-finding is also an expensive process – and one that customers of the legal system often think is unnecessary.  “Why does it take a team of experts to prove what seems to be quite obvious?”   “Why does my poor old Mom have to pay so dearly for this humiliation?” Middle class consumers come to the court thinking that they are doing the right thing to be able to care properly for a vulnerable elder.  These same consumers often leave feeling exploited and confused, disappointed with American culture and the American system of justice. 

 Sometimes, the court-run process rips a family open at the seams, as siblings battle over what is best for their elderly parent or whether the parent has been financially exploited by a relative.  As with “friendly” divorces, issues that at first appeared to be nuanced with shades of gray end up in sharp  black and white contrast with rules being applied that no one even knew about before the process started.

In America, judges do not have investigative staffs.  In some other legal systems, courts work on an inquisitorial model, where public employees are charged with the duty of fact-finding.  Americans easily grasp the shortcomings of such “inquisitions.”   But we are also impatient with inefficiencies when procedural safeguards are imposed.  In guardianships, the courts try to achieve a balance between efficiency and the rights of an impaired person by appointing for every person whose capacity is being adjudicated an attorney, a social worker and a qualified medical professional.  The cost of all of these personnel is paid from the assets of the person whose capacity is under scrutiny.

Considering the growing number of demented elderly, there must be a better way to provide them with legal protection . . . and there is.  But it cannot be put off until the need is at hand.  Each of us may, in our saner moments, put into a formal writing what we want to happen and who we want to help us in the event of incapacity.  For many of us whose families are scattered and whose resources won’t stretch for years, this planning process is not obvious.  Professionals like me can help with this.

Our government, and the courts that are part of the government, has not been geared toward actually taking care of the weak, the vulnerable, the sick or disabled.  Even the safeguards that are already in place are being endangered by the clamor for low taxes and less bureaucracy.  The “American way” has  been to create private charities and volunteer organizations.  Right now, however, the need for much greater effort on behalf of our elders threatens to overwhelm these loosely-formed nonprofits, churches and synagogues.

Some answers seem to lie in a new entrepreneurship for senior services.  Courts are connecting with private guardianship agencies, trust companies, and home health agencies to provide help to the people who come before them who need protection.  But courts are not legislatures.  They cannot invent answers, organize resources, or take over the life planning for those who have not anticipated these situations.  What courts can do is no more than what they can empower a family to do.  Hopefully wisdom and forethought is growing among our aging population and their families as we strive to avoid the costly experience of guardianship.

        My doctor said I am getting dementia.

        That’s very serious.  Did you get a second opinion?

        Sure enough.  The next guy said my knees are shot.

Most of us who live long enough are going to get dementia.  None of us likes the prospect.  Many express a preference for dying sooner. 

 “If I get foolish, please just shoot me,” a 78-year old military man said to his wife at a recent dinner party.  He laughed as though he had just made a joke.  But his sour-pussed wife seemed to give it thoughtful consideration.

Keeping a sense of humor is our best hedge against dementia.  Even when we lose the punchline of a joke in that cerebral forest where the neural pathways are becoming overgrown, a fun loving attitude will keep alive the spirit of adventure and the expectation that everything may still turn out okay.

Of course, there are good reasons to be worried and self-absorbed.  All those grumpy old men can’t be wrong.  But they should be forgiven rather than emulated.  There is a lighter approach.  If we can look back on adolescence with some kindness toward our former tormented souls, we should be able to shrug off the symptoms of senility that foreshadow our coming days of  cognitive confusion.  We can laugh together at what might alarm us if we faced it alone.

As with so much else, worry solves nothing and planning might help.   Planning for cognitive disability is a forethoughtful gift we can give our future befuddled selves and an act of generosity to our too-soon-to be-bewildered family members.  I don’t want to scare you more, buy there isn’t anything less worth the cost than court proceedings for guardianship and conservatorship.  Thousands of dollars that need not be spent.

Your travel kit for traversing the terrain of old age needs to be better equipped than something you might buy off the shelf. 

• First of all you need to re-do that will you have been forgetting to update since the kids were small. Wills get challenged when the testator has dementia . . . and some of the should be because someone without her full faculties doesn’t see reality clearly.
• Secondly, you must sign before a Notary Public a durable power of attorney that allows some trusted person to access your accounts and pay your bills. You can hire trustworthy bonded people to do it, and trust in something on paper.
• Thirdly, you need to write out and keep in an easy-to-find spot a Health Care Power of Attorney.  Most health care providers offer the forms to you. Don’t be afraid to fill out more than one. 
• Finally, don’t brood over you choices.  Get good advice and make up your mind. Once you have a conversational relationship with an estate planner, you can call up and say you changed your mind, or that you need more information.

In a recent radio interview, Imran Khan, a Pakistani opposition leader, explained why the Taliban is making headway in certain parts of Pakistan.  The Taliban's religious courts offer a prospect of order at the grassroots that the more modern Pakistani legal system cannot achieve. Pakistan's courts are modeled on the West, dominated by lawyers and riddled with procedures that require citizens to buy legal representation.  Lawyers are hired by those with money to find loopholes in the law and create advantages for moneyed interests.  In contrast, under the Taliban's brand of Sharia, a strict code of business and social rules is enforced by religious authorities.  The religious rules hearken back to a cyclical way of life that has existed for centuries.

             To western sensibilities, Sharia is highly oppressive and disregarding of basic human rights.  But even western psychologists acknowledge that security and predictability are more essential to human society than freedom or liberty.  In a time of war or social chaos (or perceived social chaos), people will flock to something they understand to be God's ordained system of law and order--a restoration of "how it used to be."

            We have seen fear push people into totalitarianism throughout history in many countries of the world.  It happened in the ancestral lands of many immigrant Americans and our constitution was designed to prevent such a consolidation of power from happening on our soil. American lovers of freedom believe that we live in a country of laws, a country where the rights of citizens are protected by a legal system that is accessible to all and blind to wealth and privilege. This faith in the rule of law is rapidly eroding, however, as the stress of financial collapse and two foreign wars tests the practical functioning of the system.

            Within the vast demographic known as the American middle class, the perception is growing that our legal system of courts, legislatures and government executives is a captured servant to the wealthy and powerful.  Every day, I get inquiries from ordinary consumers who have been bilked, small vendors who have been stiffed, homeowners who have been scammed.  People sign away their rights whenever they apply for a home mortgage or a credit card.  Contracts for everything from financial services to cell phones are slanted toward corporate interests. All too often, after extending my sympathy for their troubles, I have to tell people that the cost of my representation is out of proportion to what they could recover. 

            Remedies that cost more than the expected recovery are not remedies at all. Transaction costs must be justified by the value of the transaction.  Courts, especially, offer dispute resolution at a price only corporations can afford.  In effect, the taxpayers are supporting court systems that require a minimum of $50,000-$100,000 in legal fees for any party that continues through to trial.

            There is no easy fix for the courts.  But trial by jury is not necessary to decide most disagreements.  Judges are aware that ordinary taxpayers should be able to look to the legal system to find fair referees and alternative processes.  But the most cost-effective legal procedure is still the reasoned negotiations between well-informed counsel.  Those of us who came up when the bar was a smaller, congenial group of professionals still remember when lawyers understood that part of their job is to be peacemakers.

            As the first responders to conflict and dispute, lawyers must avoid fanning the flames of anger and resentment.  Lawyers can provide rational analysis of the issues and should be frank with clients when the law favors the other side. The laws that apply to the regular dealings between people have been settled for hundreds of years. Most "legal" disputes come out of differing versions of the underlying facts or one person's inability (or unwillingness) to keep his word.

            People get their money's worth from legal advice only if they work hard at telling the lawyers the whole story and then open their minds to seeing their situation in light of the wisdom that the law reveals after hundreds of years of similar disputes.

For nearly five decades, science taught us that our natural response to stress was a hormonal push toward “flight or fight.”  Now, a recent UCLA study has figured out that because most of the previous research had been done with male subjects, the conclusions were skewed.  “Flight or fight” is actually linked to testosterone, which is found in much higher levels in men than in women.

Women’s responses to stress involve different biochemical reactions leading us to different impulses.  Under stress, women take actions to care for others and to form networks and friendships to reinforce our strength.  The UCLA researchers are calling this response “tend and befriend.”  The hormone they have isolated that triggers this behavior is oxytocin, which is present in both women and men.  It is what floods us with feelings of love and connection after orgasm, childbirth and nursing.  So in situations where men get pumped with testosterone, women may feel soothed and focused on group cohesion.

Like “fight or flight,” the “tend and befriend” reaction is a survival mechanism.  The species needs both responses for us to weather life's challenges.  While Alexander the Great was fighting and Moses was fleeing, there were women maintaining their households and kinsfolk.

"Tend and befriend" networks have always been there.  They provided child care, elder care, health care, primary education, midwifery, etc. throughout human history, though seldom noted by the historians.  Now that women are working as executives, politicians and professionals, our leadership has gone beyond family groups, religious congregations and civic organizations.  The oxytocin in all of us is responding to stress with its de-stressing effects.

A woman of valor often does not seek to be singled out. Florence Nightingale and Mother Teresa are mere footnotes in history, but their work is symbolic of the loving dedication of millions of women whose passion for service has carried the human race from generation to generation. 

Oxytocin is changing the legal profession.  Both female and male attorneys have become more tuned in to possibilities for peaceful problem solving.  And inter-disciplinary networks have arisen that facilitate the sharing of information.  Even the field of litigation has become less focused on winning battles and more focused on improving cost-effectiveness and achieving more nuanced outcomes.

Tending and befriending will halt or slow down the passing on of stressors.  Fewer stressors mean fewer stress-responses, stopping the cascading effect of stress within a group.  In addition, individuals with good mental and physical conditioning can lower their own hormonal stress responses by lowering perceptions of danger. A man like Barack Obama who was raised by women and whose education developed his studious approach to challenges is not a "wuss" whose hormones are low. His stress thresholds are different because he perceives problems differently.  He actually seems to enjoy meeting challenges that would leave the rest of us sleepless with worry.  (Michelle Obama shows typical female stress-related behavior by tending to her family and touching the queen.)

Hiring a lawyer is a stressful activity right off the top.  It is hard to know whether you are going to receive the expertise you need.  The expense of paying the lawyer adds more stress.  Do not exacerbate the situation even more by choosing the wrong person to be your attorney, advocate and advisor.  Reduce your stress by monitoring your own stress responses and finding others with whom you feel a bond.

      I offer you Woodruff's concern in this political year not to excite you to partisanship for one brand of leader over another, but in the hope that, on the other side of the next two months, we will each still hold something close to our hearts in reverence. Like tortured lovers, we are in danger of losing touch with every delicacy of feeling toward what we revere--as our emotions are taunted, exploited and manipulated.

      Reverence is a virtue in Aristotle’s system of ethics says Woodruff. It is also feeling. A man of the philosopher’s trade, Woodruff disagrees with a concept of ethics that exalts ethical rules over feelings. Modern ethics, he says, are “mostly about doing what is right whether you feel like it or not.” In contrast, he describes the classic idea of virtue as “cultivating feelings that will lead you in the right way.”

      In American politics, virtue is merely another marketing point. Routinely, we are treated to comparisons of the candidates’ devotion to God, the Nation, the Family and the Constitution. We hear each extol his respect for fellow patriots’ heroism, for the beauty of our natural environment and for the future of all of our children. We are asked to test each nominee by some sincerity-gauge that measures the depth of his feeling.

      Is their sincerity about these matters any guide to the correctness of their opinions? History establishes that both Emperor Hirohito and President Truman were virtuous, disciplined leaders who sincerely sought peace, yet, on the advice of their generals, one ordered the attack on Pearl Harbor and the other the attack on Hiroshima. Neither choice looks ethically sound in retrospect. Yet it is hard to find hope that through philosophy we can cultivate enough virtue to avert the exercise of consolidated power.

      The treasure of Woodruff’s book lies in his thoughtful consideration of how virtue feels from the inside, not what it looks like on someone else. Even though we may see the behavior of someone else and call it arrogant, without reverence, we do not shift away from our inner self-justifications. We continue to feel quite righteous and ethical in the exercise of the small authority we possess.

         In my own experience, I have found that cultivating feelings of reverence does temper my inclinations toward arrogance. Reverence relaxes my efforts to exercise control, calms my anxiety about the outcomes of my choices, and joins my mind to the thoughts of others. In this greater openness I am able to listen and learn rather than shout and wrestle for command.