I’ve Got the Power!

By Charlotte E. Lynch

Power of attorney. These simple words can wreak havoc on our peace of mind, but they’re out there, and we all have to be prepared to deal with them.

In the event of an accident or serious illness, other people may have to take over our decision-making processes for us... ANY of us: with or without disabilities, young or old, healthy or ill. Have you given sufficient consideration to this?

I never did, until my multiple sclerosis took me through a particularly bad exacerbation. Until then I had thought that, as an independent person, I would be fine on my own for a long time. But "someday" came a little sooner than I expected (temporarily, I’m happy to report), and that was all the incentive I needed to get my act together and make out two separate powers of attorney and my will. (Please don’t groan. It’s a fact of life, and there’s no time like the present to deal with it.)

Most people are in the happy position of being surrounded by a bevy of loved ones who would jump at the chance to help out in any crisis. But, stop and think here for a moment... too many chiefs may squabble among themselves, plus many well-intentioned relatives may not know what you want -- or, worse, may lack the necessary tact and skills to get it for you. These are the lean-and-mean ’90s, and you need a fighter in your corner who will represent you the way you want, and deserve!

The crisis could be an ongoing situation, or it could be a recurring situation such as with MS, which exacerbates and then goes into remission. Either way, whether you’re in a coma and possibly not aware of what’s going on, or whether you’re just plain sick, in pain, afraid, weak and all doped up -- you’re going to need help.

There are two powers of attorney (POAs) that you need to consider. One is for your personal care and the other is for your property. You can have one or more people serving as your "attorney" (which is how we refer to the person with POA), and you can use the same person(s) for both, or different people for each, based on your needs and your support system.

It is important to realize that if you do not have a power of attorney in place, you cannot necessarily predict who will have control over your care and property. The Public Guardian and Trustee might even step in and order an assessment of your situation. By setting things up in advance, you keep the people out whom you don’t want involved, and you save time and money.

If you prefer someone in particular, put it in writing and you’ll be sure to get the person you want. There is nothing wrong with this. Your parents may be in another city, too elderly to be making these decisions, or feel that your interests would be best served by moving you home to your old room.

What about rehab, nursing care, physio? Would your attorney stay on the phone, on hold, half the day just to make sure you get what you need? Would he or she have the financial savvy to administer your modest empire? What would you want? If it’s something you’ve never discussed with your family, then how would they know they’re acting as you would prefer? If you don’t want to think about this (and who does?) for yourself, consider the other people. It’s an awesome step for them to be taking for you. Give them your input now.

Unless you state otherwise, the attorney for personal care would take over if you are incapable of caring for yourself (in a coma or mentally incapacitated). This attorney would make decisions regarding your nutrition, shelter, clothing, hygiene, safety and healthcare, including hospital and long-term care.

The continuing POA for property is a document involving responsibility for your bank accounts, RSPs, income tax, stocks, bonds, house and bills. Rent must still be paid when you are ill -- and the phone and utility gods must be appeased.

You can choose to make your POA for property effective immediately, or contingently. You can release it, or ask your lawyer to keep it safely until it is needed. You can also revoke it in the future.

There is some risk involved in making your POA for property effective immediately -- which is why it is so important that you select someone you absolutely trust. You are giving this person complete power over your property.

As my lawyer told me, "Remember that these are powerful documents, especially for people with disabilities. But planning in advance puts you in a stronger position."

To stay in control of my own property, I found it helpful to speak to my bank and arrange for its telephone banking services. This is secure and enables me to make bill payments with a touch-tone telephone on the days that I can’t get to the bank machine, or into a bank branch. I also arranged to make transfers for my RSP and general mutual funds over the phone (via a real person) to save my energy.

Even though I do not expect my MS to prevent me from having an active say in what goes on in my life, I rest more assured knowing that I can handle most of my finances from home over the phone, or at a bank machine, if I cannot get to a bank during business hours.

If I’m in the hospital, my attorneys can pay my bills over the phone for me, use my banking card, and keep my household running until I’m ready to take over again.

I took the extra step of taking a copy of my power of attorney for property to my bank for them to keep. I also ensured that sample identification and signature cards for my attorneys were on file. I also gave a photocopy of my POA for personal care to my family doctor. I have no worries about red tape now. Everyone has been informed and sees this as a positive, active, healthy approach.

Obviously, you must choose someone you can trust. This was one of the hardest aspects for me. Having no close family members to ask, I had to decide on friends and then ask them to stand up for me. But I did it, and so can you. Think about it now and get things in order. It will make it easier all around.

Since you are asking someone to act for you, have a little consideration for their position. Take the time to identify needs and problems in advance and suggest possible solutions.

I also recommend that you do a will at this point, since the same lawyer can do all three documents at the same time. You will need to review all three documents every two to five years, whenever there is a significant change in your health or financial status, or when you marry or divorce, to ensure accuracy and timeliness.

This is also an excellent time to discuss and make decisions about organ donation. It’s a difficult subject to broach, but it can save lives and give new hope to other people and their families.

Don’t, however, put it in your will, because it wouldn’t be read until after probate -- much too late for organ donation. Explain your wishes to your doctor, family, executor and so on. Even if your driver’s license stipulates that you choose to donate your organs, your next of kin can veto that decision if they are uneasy. Many family members who do decline wish afterwards that they hadn’t. By discussing it beforehand, once again you will help them through a difficult passage.

If you are currently healthy and have time to look into things like long-term care facilities and alternative treatment possibilities, this might be a good time to do it. Jot down a few notes and thoughts for your attorneys. Suggest places they could start to look for help. Although your doctors and the social services can help, they are also probably swamped, and your attorney may need to sift through red tape.

Since you are asking someone to act for you, have a little consideration for their position, if you can. Take the time to identify needs and problems in advance and suggest possible solutions. It will give them a place to start, and may ease the mind of someone who has agreed to act as your attorney.

In addition to writing notes, you could initiate a discussion with your attorneys. Try not to feel uncomfortable, so that they won’t, either.

You need a lawyer for this process. Getting a will and two powers of attorney done can cost you anywhere from $150 to $2,000, depending on circumstances. But legal advice is a sound investment in this area and, for most people, it is minimal.

I started by calling ARCH in Toronto (the Advocacy Resource Centre for the Handicapped), and then followed some suggestions made to me from there. The staff was very helpful in outlining things for me to consider as an independent person, with no children and no close family to rely on. But be prepared to do your homework. Ask questions and get what YOU want, not what someone else thinks you should have.

In your fire safe (you can get one for under $100 at Zellers) or safety deposit box, keep a list of all your financial information, keys, passwords, and names and addresses your attorney will need (doctor, friends, family, organizations). This will take hours (sorry), but it’s worth it. Where would someone start if, today, they had to take your life over? Where are all your bank statements, tax files, bills and chequebooks?

Keep your original will and POAs in a safe place. As I suggested above, make a photocopy of your POA for personal care to your family doctor. Ascertain your bank’s willingness to cooperate with your plans for your power of attorney for property.

And be careful about signing a bank’s power of attorney form. I signed one at the bank’s insistence which invalidated my lawyer’s power of attorney and I had to have it redone! I was not happy! (However, I did get some good advice from both my lawyer and my bank about beneficiary designations of RSPs and such, which could save probate fees and taxes.)

This is not an easy procedure for you and your family. But if you don’t have the necessary papers in order, then you’re giving opportunity to someone else to make these decisions for you.

The whole process can take a few weeks to a few months, from beginning drafts and discussions to the final product. If you start now, you’ll be able to end 1997 with more peace of mind. Good luck!

(Special thanks are extended to Arthur Fish, a Toronto lawyer who practises in health law and estates and trust. He can be contacted at (416) 966-4127. Charlotte E. Lynch is a freelance writer living in Toronto, Ontario.)