Home / Archive by category "Guardian"
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.


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.

Missouri Guardianship and Divorce…

Missouri Guardianship and Divorce


Naming Guardians In Your Will When You’re Divorced

               One of the great aspects of creating a will is that you can name guardians for minor children.  Obviously, if you are married, your spouse will have legal custody of your children if you pass away.  But what if you are divorced?  Does your ex-husband or wife still get custody of your minor children?

In Missouri, the answer is yes.  Like it or not, a biological parent of a minor child will obtain custody over minor children if a spouse passes away, regardless of whether the couple is still married when the first spouse dies.

However, it is still important to name an alternate other than your ex-spouse, even if they will still have first rights of custody for your children.  This is because your ex-spouse may not be fit to be or want to be a parent to those minor children.  In such a case, if you were to die, who you name in your will as the alternate guardian could be incredibly valuable to a court trying to decide guardianship.

Therefore, despite the fact that the other parent of those children has first rights to custody of minor children if you pass away, you want to name an alternate (and probably a second alternate) to serve as guardian just in case.

If you don’t name an alternate and then something happens to you, if your ex-spouse is not fit to be a parent to your children, then anyone can file a petition for guardianship and seek to become the guardians.  Yes, anyone, including your ex-mother or father-in-law.

In a guardianship proceeding, the guiding light for the court is what is in the best interests of the children.  As your children get close to becoming adults, what the children want becomes more important.  The court will put much more credence in the wishes of a 16 minor child than a four year old.

Naming a guardian is not difficult.  Our office routinely includes this information as part of putting together simple estate plans for individuals and families.  We also counsel our clients to make sure and discuss this with their chosen guardians and to not assume that anyone they name will be able to serve.

If you already have a will, we can draft what is called a standalone guardianship nomination.  This is just a document in which your wishes for guardianship are named in a dedicated document rather than as part of your will.

FREE Missouri Estate Planning Guide

FREE Missouri Estate Planning Guide

Free Missouri Estate Planning Guide


Divorce and estate planning…

Divorce and estate planning…



There are a couple of different issues when you are talking about divorce and its effect on estate planning.

The first issue is what effect does divorce have on an estate plan.  Say you and your spouse created an estate plan that left everything to each other and then to your minor kids.  Now you are getting a divorce and wondering if the estate plan is still valid.  The answer is yes, the estate plan is still valid, but with a caveat.  First, once divorced, your existing estate plan will treat your spouse as if they predeceased you.  So, for example, let’s say you create a will in 2007 that leaves everything to your spouse then your kids equally.  In 2013, your divorce is finalized but a couple of years later you pass away and you are unmarried.  Under this scenario, the provision giving everything to spouse will be void and everything will pass directly to your kids equally.  So do you need a new estate plan?  Well technically no, but here’s the problem.  If your kids are minors, everything will end up in probate and this can avoided by creating either a testamentary trust or a living trust.  Thus, just because your spouse is now omitted from your estate plan doesn’t mean it is still the right plan.

Further, your other estate planning documents, such as your powers of attorney might mention your ex-spouse as your first power of attorney.  This can create a weird situation if you become incapacitated.  Technically, the document is not effective but what if the bank or the hospital doesn’t know that?  Based on the above, most of my clients opt to create a fresh estate plan.  There is something soothing knowing your ex-spouse’s name does not appear in the documents. .

Now, the other issue when you are getting divorced that sometimes pops up is whether an inheritance from your family remains your separate property, even if you commingled funds.  First, you should avoid the issue completely and, if possible, always keep a separate inheritance separate.  In any event, under Missouri law “marital property” includes all property acquired by either spouse after the marriage except property acquired by “gift, bequest, devise or descent” (RSMo. 452.330.2(1).

This would also include property acquired in exchange for property acquired by gift, bequest, devise or descent.  For example, wife inherits $50,000 from her grandmother after her marriage to husband.  She buys a luxurious diamond necklace with the $50,000.  Under Missouri law, the diamond necklace, since it was purchased with inherited money, should be deemed non-marital property.  The practical effect of this is that husband can make no valid claim of this property during the divorce.

Finally under Missouri law, inherited property does not become marital property because it may have been commingled with marital property.  Example:  Husband inherits $250,000 from his mother and puts the money in his joint checking account (marital property) with wife.  A few years later, husband and wife divorce.  If the $250,000 still remains in the account, it will be deemed husband’s separate property.  But this brings up the difficult issue of tracing.  Chances are that some of that money was used, so husband may have to trace what funds were used for what and that it is where the issue gets complex and expensive.  This might require a forensic accounting or an examination of each transaction made after the depositing of the inheritance money into the account.

Therefore, as a practical matter, the best practice is to keep your separate property inheritance as just that, separate property and held in a non-marital account.  Other factors to be considered are asset protection and the financial position of the parties.  But remember, if you keep the money separate and then use some of it for a marital purpose (family vacation, for example), the funds are still available for that purpose but much easier to track.

Finally, one issue that I see on occasion is a person who had an acrimonious divorce and has a hostile relationship with their former spouse.  Often, there may be some doubt as to whether this spouse is a responsible parent.  To be clear, with respect to estate planning, if you pass away, the other parent of your children has first rights to be the guardian of your children.  However, that still does not prevent you from expressing your wishes as to guardian(s) in case the other parent is not willing or is not qualified to act as guardian.  Thus, if you’re gone, you should still name your choices for guardians in case the other parent cannot qualify to act as guardian.  This may be for a variety of reasons or maybe they have little interest in being a parent in the first place.

There are many issues to consider before and after a divorce in relation to estate planning.  Always consult with a qualified and experienced estate planning attorney to get the best advice possible for your specific circumstances.