Friday, January 8, 2010

Another Type of "Plan B"

The New York Times this month ran an excellent article, that I recommend reading: "Overlooking the Frail Years".  This insightful piece highlights something people really need to know.:  EVERYONE needs to have a Durable Power of Attorney for Health Care and also a Durable Power of Attorney designating a General Agent who can run their affairs if they are incapacitated. 

The legal detail about Powers of Attorney is beyond the scope of this blog post.  The purpose of this post is to tell you that, even though these Powers of Attorney are some serious documents that no one should take lightly, you need to overcome whatever psychological barriers prevent you from thinking of these things, and get it done:  Everyone needs these documents in place as a "Plan B" in case fate throws its worst your way.* 

There's no need to be morbid.  Use of these things is not always a matter of high drama or life and death.  Here's an example.  I got a phone call one time from a man who had been ill for an extended period of time.  He needed advice about how to get his car back.

Get your car back? 


While he was in the hospital and then recovering in a rehab facility, no one made his car payment for him.  So, when he was discharged from the hospital, the first thing he learned was that his car had been repossessed.  It wasn't repossessed because he didn't have the money.  The money was sitting right there in his bank account.  The problem was, he had not given anyone legal authority to access his bank account or to pay his bills while he was incapacitated. 

The process of getting the car back was not "life and death" or "dire" or even an "emergency", but it sure was a pain in the you-know-what!  This man had to put up with the grumps at the collection agency, experienced some embarrassment in his small community, and had to pay a couple hundred dollars from his fixed income to bail out his car  (a taxi ride to the lot where the car was being held, towing and impoundment fees, and various late fees).  That's not to mention trying to fix his credit report. 

Does this sound like something you'd want to be faced with the moment YOU get out of the hospital?  Because unless you have a Durable Power of Attorney, you are not immune.  The bottom line is that everybody needs to have designated a somebody who will have authority to manage their affairs if it ever  happens that they're incapacitated.   

You may answer, "It won't happen to me."  Well, that's B.S.!   It can happen to anybody, whether you want it to or not.  You don't control whether some idiot runs the red light and crashes into your car.  The N.Y. Times article says that 2/3 of us eventually need this kind of help. 

You may answer, "I already have a Power of Attorney."  Well, that's fine. But you'd better check to make sure it's a Durable Power of Attorney.  Unless it's Durable in form, it likely expires the moment you are incapacitated, just the time when you need it.  Just today, someone told me of a family who thought their loved one had executed a Durable Power of Attorney; but when they went to exercise it, they found out that it wasn't durable.  That means the family will have to go to court in order to get authority to pay the parent's bills for them. 

You may answer, "Well, my son is on my bank account."  Well, that's fine so long as you understand that you may have just given your son the right to spend everything in your bank account on a new red corvette, if that's what he wants to do with the money.  And that if you die, he'll be entitled to all of it and won't have to share a dime of it with your daughter. 

Perhaps you're worried that someone may use these documents to pull you off of life support or to steal all of your money.  Well, these are the type of documents that you do, indeed, need to careful whose hands you put them in.  It is a big decision whom to trust with such power in your life.  You wouldn't want your worst enemy to be the person designated as your proxy under your Health Care Power of Attorney, and you wouldn't want convicted bank robber Davey "Sticky Fingers" Jones to be designated to manage your money.   However, there are a few protections. 

First of all, you control who you designate.  You will not necessarily appoint your first born son, if that person is not the best person to do the job.  What matters most for the general agency is that it be someone who can is willing and trustworthy to perform the duties, who will act rationally, who will account for the money, who will act in your best interest, and who will not steal from you.  The most important thing you can do is to choose this person wisely according to their ability to assume responsibility, not according to birth order or some other prejudice.  You may decide that the best person for this job is your second-from-the-youngest daughter or even your friend Susie the bookkeeper.   

A second limiting factor for the Power of Attorney is that these documents are, as a practical matter, only used in limited circumstances.  If you are able to make decisions on your own behalf, then you make those decisions yourself, then and there.  If you can pay your own bills, you don't need someone else to do it for you.  If you can decide whether or not you want a surgery, you don't need someone else to make that decision for you.  Nope, these documents are there only for the times when you can't take care of your own affairs.  For example, when you can't pay bills on your own, or when you are unconscious and someone has to decide whether you'd want x surgery or to be put on a ventilator (or not).  Don't appoint someone who will not respect these boundaries. 

As for Health Care Powers of Attorney, I won't repeat what I've already said in blog posts HERE (on Just Mediation blog) and HERE (on Peaceworks blog) about how important those are.  What matters most for the health care is that it be someone you can talk with about what you think you would want, what your values are.  That person should also be someone who will be there in the hospital to talk to the staff.  And they should be someone you would trust to do what you would want (not necessarily what they would decide for themselves).  Your closest friends and family are the most obvious place to look for people who would do this for you, but if there are people you would trust more, you should seriously consider naming the person you think will do the best job. 

If you do name people who would be a surprise to those who would expect to do it, however, do your family the favor of talking with them about your decisions.  You don't have to say, "I chose Jane Doe because my son Tom Smith is such an irresponsible jerk."  It's sufficient for you to tell Tom and all of your other family, "I chose Jane Doe because ___," and name the positive reasons that favor Jane.  Give your family an opportunity to voice any concerns they may have about Jane, and listen carefully to those concerns.  If Jane has been your best friend for 40 years, that's one thing.  If you met Jane last week in a Playboy Bunny Club, your family may have valid reason for concern. 

The bottom line is, work through all these issues and TAKE CARE OF BUSINESS.  Get it done!   

Okay, well, (drum roll) ...

I have both a Health Care Power of Attorney and a Durable Power of Attorney.  Do you?! 

(drum roll)  

Do you?!

If not, GET THEM! 


*And now here's the disclaimer, and it's an important one:  I am not your lawyer; you are not my client; and this blog does not give specific legal advice!  Since every state and every nation has its own laws, what may be true in my state may not be true in your state or country.   I've told you my personal opinion:  you're an idiot if you don't make a contingency plan for disability. But in terms of exactly what to do, I'll leave it at telling you one thing:  Make sure you talk with your attorney about what documents you need, then take the time and effort to do whatever your lawyer recommends.   

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