Mental Capacity

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Five Power of Attorney Myths…

Five Power of Attorney Myths…


Powers of attorney are documents where a person names a person (their “attorney”) to make healthcare and financial decisions for them if they are incapacitated.  Such incapacity could be temporary or permanent.  Some powers of attorney are drafted so that a person gives another person power to do something because they cannot.  An example would be giving your adult child power of attorney to sign closing documents for the sale of your home because you live out of state.

Power of attorney lawyer O’Fallon, Missouri can help you draft these very important documents which are a cornerstone of any estate plan.

There are a few myths about these documents and here are five of them:

  1. Any Power of Attorney Form Will Work

The Web is an all too easy place to find a form for anything these days.  However, with a power of attorney, every state has different rules and statutes to make the document legally binding.  Forms online are often too general, do not contain details that are appropriate to your specific situation and are ambiguous.  An even bigger problem is that by the time you discover the form document you printed doesn’t work, it’s too late.  See below.

  1. You Can Sign a Power of Attorney At Any Time

Many people are unaware that you have to be mentally competent in order to create a power of attorney.  However, very often a person needs a power of attorney because they are no longer competent.

Unfortunately, if that person is incompetent, it’s too late anda court has to determine whether the person should have a guardian and/or conservator appointed.  It’s a much more dragged out process, it’s costly and can be challenged by others.

Bottomline, if someone you know is in need of a power of attorney, don’t wait.  Act quickly before they lose competence.

  1. A Durable Power of Attorney Is Still Valid After Death

A power of attorney allows a person to make decisions for another only as long as they are alive.  Once a person passes away powers of attorney are invalid.  At death, the operating documents are the person’s will and/or trust.

For a healthcare power of attorney O’Fallon, Missouri, the last thing the agent can do is arrange the cremation or burial wishes of the deceased.  This is called the Right of Sepulcher.

  1. A Power of Attorney Allows a Person to Do Whatever They Want

A person chosen to be a power of attorney has a fiduciary duty to the principal, the person who gave them authority.  That means they have to act in the principal’s best interests at all times, even if it’s not stated in the document, which it usually isn’t.

It’s important to note, however, that fiduciary duties are broken all the time.  Therefore, it’s important that a person choose a trustworthy individual to be there power of attorney.  It also helps to name someone who knows a bit about financial matters and you know will act and act properly.

  1. If You’re Married, Your Spouse Is Already Your Power of Attorney

When it comes to a power of attorney, being married doesn’t automatically make your spouse your agent.  That doesn’t mean they can’t be your power of attorney but they’ll need to be named so in the document, just like anyone else.  You’ll also need alternates in case you and your spouse are both incapacitated at the same time.

For healthcare decisions, if you don’t have a healthcare power of attorney, you spouse is considered your first next of kin and can make decisions above anyone else.  But the next of kin after your spouse may not be your choice, so it’s necessary to create a healthcare power of attorney.  In so doing, you’ll also create a much needed healthcare directive, sometimes referred to as a living will or advanced directive.  This document provides end of life instructions about medical treatment you either would or would not want to have withheld if a doctor determines it can’t heal you.

Missouri Healthcare Power Of Attorney

Missouri Healthcare Power Of Attorney

MISSOURI HEALTHCARE POWER OF ATTORNEY: A must-have estate planning document

This article focuses on the importance of having a Missouri healthcare power of attorney and what it does. A Missouri healthcare power of attorney is a document in which you name a power of attorney, called an “agent”, to make healthcare decisions for you if you become incapacitated and cannot make them yourself.

In Missouri, the document allows you to state whether you want one or two doctors to determine if you are incapacitated. The state standard is two doctors, but you can opt out and decide one.

Once you are incapacitated, your agent can not only meet with your doctors and review your medical records, but decide:

* what type of treatment
* which doctor / which hospital
* whether to put you into skill nursing or other long term care facilities such as assisted living
* whether to put you into hospice, either at home or at a facility
* whether to withhold artificially nutrition and hydration (tube feeding), if you specifically grant that power to your agent

So, in a nutshell, your Missouri healthcare power of attorney literally puts you life into the hands of another person. That should usually be your spouse or an adult child (or children together if you think they can make decisions together). But it’s important to point out that you can choose whoever you want to make these decisions and generally that should be a person nearby who’s judgment you trust and who you are sure will act if necessary.

In the document you can also decide whether you want to donate organs and provide specifics about your wishes as to when you pass away if you want to be buried or cremated and information about the type of funeral services you want. It also contains a HIPAA Waiver which will ensure that your agent can review your medical records as needed and discuss your care with your doctor(s).

You should also have the second part of a Missouri healthcare power of attorney, which is a Missouri healthcare directive (sometimes referred to as a Missouri living will), which at our office is a second part of the healthcare power of attorney document. The point of the healthcare directive is to provide detailed instructions to your agent if you are terminally ill or persistently unconscious (a coma, for example). You want to prevent your agent from having to guess how far to take medical treatment if you are not able to decide and that’s the point of this document. It’s invaluable to provide these instructions to your agent so they don’t have to guess, which puts both of you potentially in a tough spot.

A Missouri healthcare power of attorney document can be drafted by an experienced Missouri estate planning or elder law attorney.


A conservator in Missouri is a person or corporation appointed by a court to manage the property and finances of a minor or elderly person who has been determined by the court to be legally disabled.

In Missouri, someone who is appointed guardian has a different role than a conservator, specifically that a guardian is appointed by the court to have care and custody of a minor or elderly person.

Parents are given priority to be named conservator over their minor children in Missouri.

The legal standard in Missouri for someone to be disabled and/or incapacitated is that by reason of a physical or mental condition they are unable to receive information or to communicated decisions to such an extent that he or she lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur.

With a conservatorship, the Missouri standard is that the person is unable by reason of a physical or mental condition to receive and evaluate information to communicate decisions to such an extent that the person lacks ability to manager his or her financial resources.

In certain instances, a conservator can be named for a person who has disappeared or been detained against his or her will.

A person who has been determined by a court to be disabled is referred to as a “protectee”.  A person who has been determined by a court to be incapacitated is referred to as a “ward”.

The proceeding to become conservator begins with the filing of a petition in the county where the person (called the “respondent”) resides.  Representation by an attorney is required under Missouri law.

After the Petition is filed, a hearing is set where the central issue to be determined by the court is whether or not the respondent is incapacitated or disabled or, in some cases has limited or partial incapacity or disability.

Once appointed, the primary duty of a conservator in Missouri is to protect and manage the protectee’s financial estate.  This includes properly and prudently investing the protectee’s assets, applying such asset’s for the protectee’s care and maintenance.  The court requires an inventory of the assets and income of the protectee be provided by the appointed conservator soon after appointment.  After that, each year the conservator must provide a full accounting, called a settlement, of all incomes and expenditures made on behalf of the protectee.

Contrary to common myth, a conservator is not ordinarily personally liable for the debts of the protectee.  The conservator must indicated to whomever they are dealing with the are acting on behalf o the protectee, however.  Unauthorized use of the protectee’s estate or misuse of their property by the conservator are grounds to revoke the legal authority of the conservator, and, possibly personal liability for any harm or loss suffered by the estate.

Conservatorship for a minor terminates in Missouri when the reach age 18.  For an incapacitated or disabled person, the conservatorship ends when either the protectee passes away or upon the protectee regaining competence.

Conservatorship work can be very emotionally rewarding and I’ve had the pleasure of assisting a few disabled individuals in great need of a conservator and who are now living with a much higher quality of life because a conservator was appointed.  One case in particular remains one of my favorite moments in practicing law.

If you are seeking advice or representation from a conservatorship attorney in Missouri, make sure to ask them about their past experience in this area.  You need to work with someone who has done many of these cases and can help you obtain conservatorship without any unnecessary delays and expense.

Estate planning and mental capacity…

Estate planning and mental capacity…

Every time I meet with an estate planning client, I have to assess whether they have the mental capacity to create and execute an estate plan.  In most cases, this is a quick and simple assessment.  At other times, usually with elderly clients, it can be more difficult.

One side of the capacity equation involves the client’s abilities, which may change from day to day (or even during the day), depending on the course of the illness, fatigue and the effects of medication. On the other side, greater understanding is required for some legal activities than for others. For instance, the capacity required for entering into a contract is higher than that required to execute a will.

This is a relatively “low threshold,” meaning that signing a will does not require a great deal of capacity. The fact that the next day the testator does not remember the will signing and is not sufficiently “with it” to execute a will then does not invalidate the will if he understood it when he signed it. In contrast, the threshold for entering into contracts is fairly high.

The standards for entering into a contract are different because the individual must know not only the nature of her property and the person with whom she is dealing, but also the broader context of the market in which she is agreeing to buy or sell services or property. Competency to enter into a contract presupposes something more than a transient surge of lucidity. It requires the ability to comprehend the nature and quality of the transaction, together with an understanding of what is “going on,” but an ability to comprehend the nature and quality of the transaction, together with an understanding of its significance and consequences.

As a practical matter, in assessing a client’s capacity to execute a legal document, attorneys generally ask the question, “Is anyone going to challenge this transaction?” If a client of questionable capacity executes a will giving her estate to her husband, and then to her children if her husband does not survive her, it’s unlikely to be challenged.  If, on the other hand, she executes a will giving her estate entirely to one daughter with nothing passing to her other children, the attorney must be more certain of being able to prove the client’s capacity.

While the standards may seem clear, applying them to particular clients may be difficult. The fact that a client does not know the year or the name of the President may mean she does not have capacity to enter into a contract, but not necessarily that she can’t execute a will or durable power of attorney. The determination mixes medical, psychological and legal judgments. It must be made by the attorney (or a judge, in the case of guardianship or probate determinations) based on information gleaned by the attorney in interactions with the client, from other sources such as family members and social workers, and, if necessary, from medical personnel.  Doctors and psychiatrists cannot themselves make a determination as to whether an individual has capacity to undertake a legal commitment.  But they can provide a professional evaluation of the person that will help an attorney or a court make this decision.

Because you need a third-party to assess capacity and because you need to be certain that the formal legal requirements are followed, it can be risky to prepare and execute legal documents on your own without representation by an attorney.