An individual may become temporarily or permanently incapacitated. In that situation, decisions concerning that person’s health care and finances need to be made. Without the benefit of advance planning, however, those decisions are often not made in accordance with the individual’s wishes. Below are some of the common types of planning that are recommended:
Health Care Directive
An advance directive is an instruction by an individual as to the withholding or withdrawing of certain medical treatment in advance of the individual suffering a condition rendering the individual unable to refuse such treatment. A competent individual always has the right to refuse treatment for himself or herself or direct that such treatment be discontinued. Without an advance directive, once an individual becomes incapacitated, he or she may well lose that right.
Power of Attorney for Healthcare
A power of attorney is a document by which you appoint a person to act as your agent. An agent is one who has authorization to act for another person. The person who appoints the agent is the principal; the agent is also called the attorney-in-fact. Your agent can be given authority to make medical decisions on your behalf. If you have appointed an agent by a power of attorney, acts of the agent within the authority spelled out in the power of attorney are legally binding on you, just as though you performed the acts yourself. The power of attorney can authorize the attorney-in-fact to perform a single act or a multitude of acts repeatedly.
Many people are unaware that an ordinary power of attorney is revoked, and the agent’s power to act for the principal automatically stops, if the principal becomes incapacitated. Under Missouri law, and the law of many other states, a power of attorney with proper wording may be made “durable.” This means that the power of the agent to act on the principal’s behalf continues despite the principal’s incapacity, whether or not a court decrees the principal to be incapacitated.
Through a durable power of attorney, an agent may continue to act on your behalf even after you have had a stroke or other incapacitating illness or accident. If the power of attorney so provides, the agent can use your funds to pay your bills, can contract for nursing home services for your benefit, and can make basic health care decisions for you.
Power of Attorney for Finances
A financial Power of Attorney for Finances is similar to a Power of Attorney for Healthcare except that the attorney-in-fact’s powers are limited to making decisions concerning your income and assets.
In Missouri, certain powers must be specifically stated in the power of attorney in order for the attorney-in-fact to be authorized to perform such acts.
Those powers are:
- To execute, amend or revoke any trust agreement;
- To fund with the principal’s assets any trust not created by the principal;
- To make or revoke a gift of the principal’s property in trust or otherwise;
- To disclaim a gift or devise of property to or for the benefit of the principal;
- To create or change survivorship interests in the principal’s property or in property in which the principal may have an interest; provided, however, that the inclusion of the authority set out in this paragraph shall not be necessary in order to grant to an attorney-in-fact acting under a power of attorney granting general powers with respect to all lawful subjects and purposes the authority to withdraw funds or other property from any account, contract or other similar arrangement held in the names of the principal and one or more other persons with any financial institution, brokerage company or other depository to the same extent that the principal would be authorized to do if the principal were present, not disabled or incapacitated, and seeking to act in the principal’s own behalf;
- To designate or change the designation of beneficiaries to receive any property, benefit or contract right on the principal’s death;
- To give or withhold consent to an autopsy or postmortem examination;
- To make a gift of, or decline to make a gift of, the principal’s body parts under the Uniform Anatomical Gift Act;
- To nominate a guardian or conservator for the principal; and if so stated in the power of attorney, the attorney-in-fact may nominate himself as such;
Other powers not specifically prohibited by law can be drafted into a Missouri Power of Attorney for Finances in order to tailor the document to best fit your needs. We recommend that all estate planning clients consider executing each of the foregoing documents as part of a comprehensive package.