Legal

Legal advice for both the caregiver and the early-stage patient as they prepare for the future.

The Power of Power of Attorney

The Power of Power of Attorney

by ROSEMARY COUNTER

In a perfect world, alongside wills and insurance, healthy adults would have a power of attorney—the voluntary legal document that allows others to make health and financial decisions should you become incapacitated—years before you need it.

But in reality, 71 percent of Canadian adults still don’t have a power of attorney, found a 2012 survey by the Lawyers’ Professional Indemnity Company. Even within the senior community, a survey for Lawyers.com found only half of Americans over age 65 have a POA.

“People should have powers of attorney and wills—because truthfully, anyone can fall ill at any point—but the reality is they just don’t,” says Helen Krackow, a clinical social worker and psychotherapist in New York.

Many of us claim we’re too busy, or we’ll get around to it eventually, or we just don’t think we need a POA. You do, and here’s why.

What it is

Though laws vary by province or state, POAs do two basic things.

“One deals with the possible loss of decision-making abilities around personal matters – health care and medical matters. It allows you to appoint someone else to make these decisions for you,” says Toronto-based Jean Blacklock, author of The 50 Biggest Estate Planning Mistakes…and How to Avoid Them.

“The other power of attorney deals with property. When you become incompetent, the person named will step in and deal with your financial affairs,” says Blacklock. This could include paying bills and income tax, monitoring businesses or investments, even suing on your behalf if necessary.

An uncomfortable truth

Both documents, at their core, deal with things no human likes: the thought of mortality, and giving up control.

For these reasons, many of us put POAs out of mind. But stall too long, says Toronto lawyer Les Kotzer, and all the money in the world won’t buy one. “Power of attorney must be signed while the person has capacity,” says Kotzer, author of The Wills Lawyers.

If they don’t understand the nature of the document or the extent of their assets, a POA is useless anyhow.

A document as such—if you can find a lawyer to craft it and witnesses to sign it—is more likely to be contested.

“At that point, it’s too late,” says Kotzer. “You’ll be dealing instead with courts and government, which is much more complicated. That’s why it’s very important to plan in advance.”

Choose wisely

Convincing someone else to sign a POA is never an easy conversation, but there are ways to make a potentially awkward situation less so.

First, make sure you’re the best person to have this talk. “Unless you have trust to begin with, you’re going to get a fair amount of resistance,” says Krackow.

Parents often give their adult children power of attorney, but the choice is very personal. Some people would rather appoint a lawyer, or a trust company. Others choose two or more people. “If you have three kids, you could appoint all three, with ‘majority rules’,” suggests Kotzer.

“You want someone who thinks and makes financial decisions like you do, and who can be trusted,” says Blacklock. Geography should be considered—someone in the same city is ideal—as should general availability. Do you, for instance, have time to take on filing income tax returns, reviewing insurance policies that come up for renewal, collecting government benefits?

Stress their wants and wishes

Broach the subject carefully and concisely. “Always put it in terms of protecting their interest and having their wishes enacted when they can no longer do it,” says Krackow. Family should emphasize their plans to protect and honor their parent’s wishes, which can deflect feelings of lost power.

If the person gets angry, know this is very common. “You can expect people to get upset, because it’s very threatening,” says Krackow. “Any time people feel frightened, they get angry or depressed. It’s not personal.”

Further reading:

Lynne Butler, B.C. lawyer: estatelawcanada.blogspot.ca/2012/05/moms-showing-signs-of-dementia-should-i.html

Paul Pharo, Alberta lawyer: stringam.ca/areas-of-practice/estate-planning/what-is-an-enduring-power-of-attorney

Ontario gov’t: attorneygeneral.jus.gov.on.ca/english/family/pgt/livingwillqa.pdf

 

Rosemary Counter is a Toronto reporter and screenwriter



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