Today we’re finally getting back to the “Boomer Primer?” Remember the “Boomer Primer?” That’s the thing we were doing before the juggernaut of Part D/Advantage Plan “open enrollment” rolled over us (and continues to roll through December 7), then there were other unscheduled interruptions under the general heading of “Real Life,” blah blah – Anyway, here we are.
The idea of the Boomer Primer (designed primarily for…You guessed it! Boomers!) is to provide a list of “Things to Think About,” assuming that you (whoever “you” are) are in your early-to-mid ‘60’s, or rapidly closing in on same, and would like to have some idea of what tomorrow might look like, before it’s tomorrow.
You are not required to do “this” or do “that,” or to agree with “this” or “that” – You are required to think about these things, as a part of the whole “aging thing,” then decide whatever you decide to decide, because surprises can easily turn into shocks.
OK, the last chapter of the Primer pre-Part D (which actually was a chapter unto itself, but let’s not get distracted by thinking that the whole is equal to the sum of its parts), was about “wills” and “probate,” because nothing goes very well in America without the legal paper, so you thought to yourself (pre-Part D), “OK, so, if I do that right, I’m done with making paper, right?”
Wrong. Here’s why: Most of us aren’t overly enthusiastic about the prospect of dying, but in the privacy of our own homes, will generally concede that it’s highly likely that we will; the fact is, that what most of us hope for is something sudden and definitive, meaning I’m living and living and living and suddenly…BOOM! It’s over! Bye.
The reason we hope for a sudden BOOM is because what most of us fear the most is that “gray area” between what we call “life” and what we assume “death” to be, unfortunately referred to as “disability.” In my world, people are much more afraid of nursing homes than they are of morgues, for exactly that reason: We want to be able to live our lives on, more or less, our own terms, than go out with a “bang” (or, in this case, a BOOM).
Many of us do – And will. Many of us won’t, and you know that as well as I do, so then what?? Well, presuming the worst case where we won’t be able to call our own shots (which also doesn’t happen to everybody), someone else is going to have to, so how does that actually happen? Good question. Listen:
A “power of attorney” (POA) is a legal document in which I give someone else the authority to act on my behalf – Buy things, sell things, collect money, spend money, manage a business, whatever. A POA can be written to take effect right now, or at some future date, like between January 1 and March 31 of 2030, when I’m water-skiing the canals of Venice – You get it. A POA is predicated on the legal assumption that I know what I’m doing (“informed consent”) and it ends when I die, so it is NOT a substitute for a will (Nice try, though).
A POA also “goes away” when I become mentally incapacitated, because I no longer have the ability to grant “informed consent,” get it? However, a POA can be written in such a way that it is to remain in effect in the event of mental incapacity OR only kicks-in in the event of mental capacity. These are called “Durable Powers of Attorneys” (DPOA’s), probably because they “endure,” huh? Close enough.
I like these – A lot. Here’s why: Remember that a POA can only be granted when I’m capable of giving informed consent? Now, let’s say I have a massive stroke or, more statistically likely, start slipping away into Alzheimer’s (or whatever) and I haven’t prepared a DPOA – Can I do one now? No, because I lack “mental capacity;” in other words, I can only do it before I need it because, when I need it, I can no longer do it. And what does that sound like?
Right! Planning! So, when would be a smart time to have a DPOA drawn up? Right! When I’m already sitting with my attorney talking about my will (Note: you can often get a “package deal” from a smart attorney when you get a will, a DPOA, an Advance Directive and, often, a Community Property agreement). I know what you’re thinking: Do I have to pay an attorney to do this?
No. There is no legal requirement that a POA/DPOA be prepared or reviewed by a lawyer, and there are generic forms out there that are perfectly legal. Do I think that’s a good idea? No, because smart elder law attorneys know the right questions to ask that will make us think, and avoid a future “Oops!” – “Oops” being the 2nd scariest word in the entire Primer. Do I think a generic, self-executed DPOA is better than nothing? Almost always, and here’s why:
Let’s say that I actually like my family, but enough to have prepared a DPOA; then let’s say that something bad happens to me, to where I can no longer make my own decisions or manage my own affairs, can my family make all the necessary decisions and do all the legal stuff? Nope, so they’re going to have to petition for a guardianship, which is expensive, time-consuming and generally extremely annoying (and we’ll talk about those next week) – Because they have no other choice.
A little bit of quick Q & A, because I’m running out of newspaper:
- Can a POA/DPOA be used to make healthcare decisions? Yes;
- Can I still make my own decisions if I’ve already given a DPOA? Sure, if you can;
- Can I cancel my DPOA? Absolutely. Or change who’s making the decisions? You bet;
- Is this everything I need to know? NO!
Talk to an elder law attorney, or at least go to www.washingtonlawhelp.org and click on the “60+” button to read up on these things (Hint: You’ll also find some generic forms, if you’re just bound-and-determined to go that way).
Here’s what’s worth remembering: I can only get it when I don’t need it because, when I need it, I can’t get it.
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