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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.

Estate Planning For Children Struggling With Addiction

Estate Planning For Children Struggling With Addiction



 Many parents who have children struggling with addiction or mental illness are often too consumed with caring for those children in the present to given thoughts about who and how those children will be cared for when they are gone. 

It’s a question I ask just about all of my estate planning clients who have children…do your children now or have they struggled in the past with alcohol, drugs, gambling or mental illness?  I’ll remind those clients that there is no stigma about their children’s addiction in my office.  I’m there to help and frank discussion of this issue is unavoidable for proper estate planning. 

So how might estate planning differ in this situation?

We start with a couple of baseline rules.  First, we acknowledge that an addicted child may never recover.  Second, because the child may never recover, we must ensure that the child never has easy access to funds, even if non-addicted children do have easy access. 

A special purpose trust is often the answer.  They offer traditional estate planning goals such as avoiding probate, minimizing taxes and ensuring the intended beneficiaries are named, but also can be tailored for unique family situations involving addiction.  Parents can include language that allows the trustee to deal with both the good and bad, including incentivizing the child to meet certain goals or requirements to receive a distribution from the trust.  An example would be staying sober as evidenced by a drug test or staying on a certain medication that helps the child control their addiction.

In 2017, delaying distributions of principal, as I’ve discussed in prior articles, is not always a bad thing.  As with estate planning for children who are spendthrifts, not distributing assets means they will be invested with a competent financial advisor instead, meaning the money should grow.  If the addiction problem worsens, this provides more resources to fight the addiction.  If the addiction problem recedes, the trustee has more resources to support the child and to encourage their growth through education and career changes.    

Another consideration for proper planning should be to have the child execute a healthcare power of attorney and HIPAA release after they reach 18.  These documents could allow you to help a child in crisis.  Without these documents, you have no legal authority to speak with doctors and discuss medical records and decisions.  While these documents can of course be revoked by your child, having them in place first is preferable to not having them at all. 

Estate planning for addictive children is different but much the same.  With careful consideration you can ensure that you protect your child from their addiction and from themselves. 

A Guide to Caretaking for an Elderly Parent: Part 1 – Estate Planning

A Guide to Caretaking for an Elderly Parent: Part 1 – Estate Planning

A Guide to Caretaking for an Elderly Parent: Part 1 – Estate Planning

One of the first steps a person caring for their elderly parent should look into is whether they have an estate plan.  Do they have a will?  Is there a financial power of attorney?  Does Mom have a healthcare directive or living will?

These are just a few of the questions that Part 1 of my blog post series “A Guide to Caretaking for an Elderly Parent” will discuss.

But first, a reality check.  People in your position often feel embarrassed that they don’t know about Mom or Dad’s finances, the specifics of what medications they take or where they do their banking.  They also feel inadequate that they are not doing enough.  Take solace in knowing that this is very normal.  There is no course in college or many ways to prepare for suddenly becoming the parent for your own parents.  That’s just how it is.  You’re going to need to get used to the fact that this is all new, that’s it’s all happening fast and that you can make mistakes and learn from them.  It’s just like parenting really.  There’s the plan and then there’s life.

Okay, with that out of the way, the first step you need to take is to review what legal documents your parent or parents have put together as part of their estate plan.  Look around the house, ask their financial advisor.  Are you the power of attorney for Dad?  Where is the document?  I advise most clients that I do estate planning for to keep their documents in a place that their family can find them, rather than locked up.  Start with a search with that in mind.

If your parents don’t have any planning, the next step is to meet with an estate planning attorney like myself so they can  determine whether Mom or Dad (or both) have capacity to create an estate plan.  That is, do they have the legal ability to make and understand a power of attorney, a will, a living will or a trust?  An attorney can make that determination after meeting with them.

If they can make an estate plan, get that done as soon as possible.  You’ll need the power of attorney to help them do things like banking, dealing with doctor appointments and filing taxes.

If they do not have capacity, the attorney you meet with may suggest that you get guardianship and perhaps conservatorship over your parent.  That means that you will need to file paperwork in the court where they live to be appointed as the legal decision maker (guardian) and financial decision maker (conservator) for them.  If Mom does not have capacity, a doctor will indicate that by completing documentation supporting your guardianship petition.  The downside is that this may take a couple of months to get resolved.  However, once Letters of Guardianship and Conservatorship are awarded, you may assist your parent with whatever they need.  You are legally in charge of all the decision making related to their lives.

In Part 2 of “A Guide to Caretaking for an Elderly Parent” we will look at a crucial issue:  does Mom or Dad stay at home or do they need to go into long term care?

Family Fighting Over Powers of Attorney…

Family Fighting Over Powers of Attorney…


Squabbles over who can act on your parent’s behalf through a Power of Attorney and the decisions made in that role can cause problems within any family.

Even when mom or dad plans ahead and creates the Power of Attorney (POA) legal document before they’re impaired by a health condition, there can be ongoing strife among family members.

Sometimes the decision of who to appoint in the Power of Attorney role, from the parent’s standpoint, is very clear and easily made. Parents will put their faith in the oldest child, or choose one child over another based on who lives closest or whom they trust because of their skills, especially with financial decisions.

In my own practice, I often see years of responsible living by one child making all the difference when it comes down to deciding who should be in charge.

In other cases, a parent is suspicious about their child and doesn’t trust them 100 percent with their money. Sometimes if the oldest isn’t chosen, there’s emotional backlash toward parents and siblings because they are insulted by the decision.

In Missouri., multiple people can be appointed Power of Attorney.  The downside to selecting multiple people is that can result in arguments later, if they cannot agree on a decision.  Luckily in Missouri, we allow separate Powers of Attorney for healthcare and financial decisions, so the duties can be separated between siblings.

In some families, having a child in the healthcare field as a doctor or nurse makes it very easy to decide who should be in charge for healthcare decisions in a power of attorney.  The same is true for families with a child who is an accountant or financial advisor.  They make easy selections for who should be in charge for financial decisions in a power of attorney.

Be aware, however, that even if the appointment of POA is smooth and didn’t involve much gnashing of teeth, that doesn’t mean bickering won’t begin once the person granted POA assumes duties related to parents’ financial and medical decisions. Many times, the challenge to the POA happens after the parent passes away, when transactions and other decisions by the POA are second guessed by the other children.

While the parent is still alive, a sibling may try to trump the person appointed POA by saying their parent was incapacitated when making the decision. When that happens, it can result in an expensive guardianship fight in court.

Here are other common situations seen by elder law attorneys:

“The Sibling Rivalry” : An ongoing sibling rivalry can chip away at the “power” that someone granted Power of Attorney holds and cause kids to argue over daily and long-term decisions. When the siblings don’t trust the person granted POA, what I see most often  is constant questioning about decisions. One or multiple siblings may appear to be always on the POA holder’s back, challenging each health care and financial decision.

“Unwilling To Let Go” :  The POA holder must act in the best interest of the person they are representing, even when it comes to making those tough health decisions.  If not, they can be sued.  Having handled these types of cases on both sides, they can be nasty, protracted and expensive.

“Financial Feuds” :  Once siblings start to question what is happening to their ineritance, the battle over finances heads to court, and it can happen whether the parent is alive or has died.

In a frequent scenario, the person appointed POA may decide to pay themselves back for the expenses of caring for a parent, such as driving them to doctor’s appointments and buying food or medications.

In one case I had when I practiced in New Jersey, the only daughter was appointed POA and took care of her mother for years, even as her health sharply declined.  Two brothers, who lived out of state, questioned everything she did, although it was very clear that Mom had decided to reward her daughter in her estate plan by giving her a large share of the estate.  The brothers were incensed but it was clear that years of neglect by her sons had upset her and that she recognized that her daughter going above and beyond and the sacrifices she made for years in taking care of her and making sure her every need was met.

One recommendation I make to clients is that they contact an attorney before the damage within these families becomes permanent.  Often an attorney can act as a buffer between the two sides and bring everyone together.   This not only may salvage the long term relations among family members, but save a lot of emotional turmoil and hurt feelings.

Discussing Estate Planning with Your Family

Discussing Estate Planning with Your Family

Discussing Estate Planning with Your Family

If you have elderly parents, you know how stubborn they can be about discussing important issues in their life.  Having a simple discussion about whether an older parent should still drive, suggesting that they should no longer live at home and should consider assisted living or even asking about finances can seem intrusive or overbearing.

If you’ve ever asked a parent if they have planned for their death or how much medical treatment they want at the end of their life is also a difficult, yet crucial discussion to have with elderly family members.  And you need to be having this discussion sooner rather than later.

Here is why:

First, all estate planning documents require capacity to execute them.  That is, the person signing the documents has to understand them and must be lucid to sign.  When a person no longer has capacity to execute a power of attorney, for example, the courts must decide who will the guardian and conservator of that person in a guardianship hearing.  In Missouri, anyone can file a petition for guardianship.  That can be a problem if you have other family members who want to be in charge but its questionable whether they can act responsibly.

Second, failing to plan can create tremendous problems down the road.  Estates can get tied up in probate for several years and can be contested among family, causing tremendous emotional pain and financial burden.  I’ve represented family members in these situations and it takes a tremendous toll on all parties.

Third, estate planning is not that all that complex if you sit down with an estate planning attorney that can tell you what you need and what you don’t.  The general rule is that the more complex your situation is, the more complex your estate plan will be, but at present much of the complexity of estate tax planning is a non-issue for the vast majority of clients.

Finally, failure to have a plan could result in an unnecessary emergency.  For example, let’s say that Mom has passed away and Dad needs to go into a nursing home but in order to do so, their children need to be in control of his finances and his healthcare making decisions (through a financial durable power of attorney and healthcare power of attorney) so that they can help him select and pay for the home he will stay in.  Without those powers of attorney in place, none of this can be done.  If Dad needs a nursing home, chances are very likely he needs someone to help him with that process.

If you have an elderly family member who has not created an estate plan, sit down with them and try and have an open conversation with them on the topic.  Having other family members there might help.  You don’t need an intervention setting, but sometimes letting that family member know that you all care and are concerned can do the trick of getting a stubborn family member to act.