09 Oct

First, let me apologize to all the Douglas Adams fans who enjoyed Hitchhiker’s Guide to the Galaxy and find my title a bit too familiar. The man was brilliant, what can I say? The title works in more than one context. From my perspective, the issue of death and dying should have only three main parts: the person, their family, and advisors (doctors, lawyers, clergy, etc.). However, in Canada and many jurisdictions, the government sometimes plays too big a role in certain aspects. Hopefully, this is about to change in Canada and a sensible step forward will be made when the Supreme Court of Canada decides the appeal in Carter v. Canada.

Part 1 – Everybody Dies

It’s one of the most basic facts of life that life ends. We know the end will come eventually but, generally, we don’t know exactly when. As a result, prudence suggests that we remain in a state of reasonable readiness so that our affairs are not a disaster to administer at a time that is already very difficult for family and friends.

Unfortunately, for about 50% of Canadians, reason does not prevail and they wonder around blissfully content to leave a legacy of misery, delays and extra costs rather than making a Will and powers of attorney as part of a comprehensive estate plan. I have been practising law for nearly 20 years now and still do not understand the motivation behind ignoring this important personal wellness task.

Yes, you heard me. Making a Will and powers of attorney, as part of an overall estate planning process, is a personal wellness task. To complete the process properly, and avoid problems, it is generally recommended that lawyers be involved. However, the essence of estate planning is getting one’s house in order so that when the inevitable eventually happens, family and others about whom you care do not have more grief heaped upon them.

Many people think that they need to be old or rather “older” to do estate planning. The problem is that as each year passes, they keep thinking they need to be yet older still. Or they think they don’t have an “estate” because they are not as rich as that person over there. The term “estate” is not nearly as fancy as it sounds. Basically, all it means is everything a person owns and everything they owe. Everybody has an estate. Some are grand and some are modest, but that characterization depends, in part, on your point of view.

From my perspective, life is not a contest. Be proud of who you are, and what you accomplish on your terms, while earning the respect of those who deserve yours.

At any given moment, you are where you are in life. There isn’t much you can do to change things significantly at that instant. Therefore, it should not be an impediment to getting your house in order. In fact, tackling the estate planning process can be a little like finally cleaning out that spare room closet where you have been cramming unwanted clothes, etc. for ages. Initially, it seems like a huge tedious task but, when you are done, you feel fantastic and you might even discover a few things of value along the way.

Some of you are still saying, “yes, but the closet will be there tomorrow.” Maybe, but maybe not. If you’re lucky, you’ll get some warning that you really need to get moving but even then I can tell you from experience you’ll want to do it even less.

There’s nothing like a health scare to make you examine your life and ponder all the outstanding items that need addressing, but that is the absolute worst time to take on any important decision making. Stress clouds our judgment and that assumes you even feel well enough to do things.

For those who are still not convinced, let me share my own story from the past couple of years. Generally, I’m a reasonably healthy person but I’ve had some annoyances along the way. I reported them to my doctor who was not concerned and indicated I did not need a specialist. Unfortunately, a few years later in 2012, things started to come unhinged. Something was clearly wrong and the process of consulting specialists and tests began.

Despite feeling absolutely hideous, I was not concerned yet so I kept plugging away working as much as I could and even setting up my own law practice again in early 2013 while I waited for the first specialist appointment in May of 2013. That appointment quickly indicated that I had an ovarian cyst that was not normal. Next step: ultra sound appointment in a couple of weeks.

As you can imagine, my stress level was starting to go up and I was beginning to worry about a variety of things as well as examining my life. When I went for the ultra sound, the look on the technician’s face told me all I needed to know. The poor women looked horrified and a little teary. Sure enough, when I go my results, I was told I had a cyst that had become “complicated“. Stress level up another notch or two.

Next step: MRI. This appointment was booked quickly and the results came back in about 48 hours instead of the normal 5-7 days. The ultra sound results were confirmed and an appointment with a gynecologist was booked as quickly as possible. In the meantime, it was recommended that I have a CA125 blood test which I did. The results were extremely bad.

Normal for the CA125 test is 0-35 with 65 being a generally bad sign. My result was 267. However, the test has a high occurrence of false positives and false negatives so there was still hope since things other than cancer can trigger a bad result. There was just no way to say for sure which camp I fell into so all discussions were vague with a hint of “get your affairs in order”.

The gynecologist was not comfortable making a diagnosis so she did not say much other than to start preparing myself for surgery and the possibility of some serious news. I was then referred to a leading gynecologic oncologist and had to wait about three weeks for that appointment.

As all of this was going on, I thought of many things, including the fact that I should probably review and update my Will and powers of attorney as well as generally organizing my financial papers and business records. I repeat, “I thought of many things.” However, caught between the terror of what was about to happen to me and various regrets from my past, I cannot say I exactly felt all that motivated to actually tackle the job of getting my house in order. When the worst of it came crashing in on me, I worked very little for a couple of weeks and spent most of my time curled up binge watching Sopranos.

I forgot to mention, sort of, that my law practice is focussed exclusively in the area of Wills, trusts and estates. Therefore, updating my Will and powers of attorney, and generally organizing my affairs, should be easier for me than most other people. Fortunately, things were pretty much in order. All I really needed to do was to make some small changes and organize paperwork. Yet, at the time when I should have been catapulted into action, I was actually stopped in my tracks – paralyzed by fear. Maybe others would react differently but I suspect if people cannot be motivated to get organized at the best of times, extreme stress is not going to help.

Visiting a lawyer, even under fairly good circumstances, is not considered one of life’s more enjoyable tasks. I believe that’s partly a perception problem. We’re here to help people avoid problems. We’d much prefer to do a little work to keep clients on track rather than having to move mountains, at great expense assuming it can even be done, to get them out of trouble. Good planning is far cheaper than dispute resolution: it’s easily 10 to 50 times cheaper.

You do not want to start the Will and estate planning process when you are freaked out because you might be facing a serious illness or even death. Waiting to see the results of your surgery is not a good option either. For starters, you might not survive. If you do survive, you might have further treatment that is needed which will zap your energy and enthusiasm.

Fortunately, things went very well for me. All tests were benign. However, my recovery process was slow and very miserable. I did not expect to feel fantastic right away but there’s nothing to really prepare you for that sort of episode, and it’s probably best not to know going in. Naively, I had things I thought I would do on my “forced vacation” as I called it, but I accomplished almost none of them. The books are still on the shelf unread, movies unwatched in a drawer and knitting in a basket in the corner. By the time I felt human enough to want to do much of anything, I had to get back to running my office.

Estate planning should not be viewed as a one-time task. It is part of a personal wellness routine like exercise and eating green vegetables. Initially, you may need to invest some time and energy to develop a plan and set it into action, but after that you can switch to reviewing and making small adjustments as needed unless there’s a major change in circumstances. Viewed this way, it is much less overwhelming. Also, you can avoid bigger problems down the road that result from neglecting your wellbeing which can have a serious impact on those about whom you care.

Learn from my experience. If you have a scare, you will not want to be spending time with me or another lawyer getting your affairs in order as well as financial advisors and accountants. Your mind will be spinning with all the things you might not get to do, what sort of painful recovery you’ll be facing, and the things in the past you might not be able to fix. If you do nothing, you could leave a disaster behind that hurts people about whom you care.

Join me soon for the next instalments in this series.

Part 2 – The meaning of life

Part 3 – Guess who’s coming to dinner?

Part 4 – Big Brother – not the reality show