Healthcare Power of Attorney

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What Does A Living Will Do For Me?

What Does A Living Will Do For Me?

WHAT DOES A LIVING WILL DO FOR ME?

           A living will is an important cornerstone document for any estate plan.   This document allows your to spell out your wishes with respect to medical care if you are not only unable to make your own decisions, but also terminally ill, in a coma or otherwise seriously incapacitated.

For all intents and purposes, in Missouri a living will is the same thing as a healthcare directive or an advanced directive.  Each provides your specific instructions with respect to care in the event of the above situations.

As a living will lawyer O’Fallon, I always make this document the part of any estate plan I create for a client.  People are often confused by the types of treatments covered, but they are generally:

  • artificially supplied nutrition / hydration
  • invasive surgery or other invasive procedure
  • chemotherapy
  • CPR
  • dialysis
  • antibiotics
  • radiation therapy
  • chemotherapy
  • respirator
  • All other “life-prolonging” medical or surgical procedures that are merely intended to keep you alive without reasonable hope of improving your condition or curing your illness or injury.

Here’s an example of how a living will works:

Joan is 65 and discovers she has Stage 3 cancer.  She aggressively fights the disease with chemotherapy and even some other innovative procedures.  However, after a year or so she is informed by her doctor that the cancer is now terminal and that she has less than six months to live.  Joan creates a healthcare power of attorney and living will that names one of her sons, Jack, to make healthcare decisions for her if she cannot.  A few months later she gets an infection, which requires hospitalization.  She requests antibiotics which do not successfully treat the infection.  After a few days she is not responsive and Jack begins make decisions for her.  He discusses options for his mother with her treating doctor who tells him that because she is otherwise terminally ill, the infection cannot be treated successfully and even if it were, he doesn’t think she would return with any quality of life.

Jack reviews the healthcare directive which clearly states from his mother that she didn’t want to be kept alive with no hope of recovery.  Based on those instructions from his mother, he elects to withdraw medical treatment and to make sure his mother is pain free and comfortable, which is known as palliative care.  A few days later, sadly, Joan passes away.

The lesson in the above example is that Joan was able to control her fate even after she could no longer state her wishes about treatment.  It certainly was a difficult decision for Jack, but he was able to recognize that it was his job to carry out his mother’s wishes, not prolong her life unnecessarily if it wasn’t going to help her condition.

Another important lesson:  Joan chose Jack to make this decision, not her other sons.  That’s because she created a power of attorney which stated that Jack and not the others were in charge if she was incapacitated.  Presumably Joan chose Jack for a reason…she knew he would do as she asked and not what he may have wanted.  Without a healthcare power of attorney and medical directive in place, it’s up to your next of kin to make decisions together.

What Happens To My Joint Trust If I Get Divorced?

What Happens To My Joint Trust If I Get Divorced?

 

 

What Happens To My Joint Trust If I Get A Divorce?

What Happens To My Joint Trust If I Get Divorced?

              Going through a divorce can be an extremely painful, stressful and seemingly unending process.  It affects so many different aspects of your life.  This article discusses just one of the effects, which is your estate planning, including your living trust, will and power of attorney documents.

What happens to my estate plan when I get divorced?

This is a great question and one that a qualified estate planning lawyer Dardenne Prairie can assist you with.  In Missouri, a divorce essentially treats any distributions intended for your ex-spouse as void.  In other words,  you have a will, it says that when you pass everything goes to your ex-spouse, but upon finalization of the divorce, that provision for your now ex-spouse is treated as if they have predeceased you and therefore the distribution would pass to your contingent beneficiaries, which would usually be your children.

What happens if I have assets that will avoid probate, such as a life insurance policy?

The Missouri law treating the ex-spouse as a voided beneficiary only covers assets in probate.  If you had a life insurance policy that left your soon to be ex-spouse as the primary beneficiary, you would need to change that after divorce, because if you pass away, your ex-spouse would inherit.  This happens all the time, unfortunately, and that’s why it’s important to have a game plan to review your estate plan (or establish one) after your divorce is final.

The second thing to note is that any distribution to your ex-spouse upon your passing is only void if the divorce is final.  If you expect your divorce to be extended for a period of time, it’s important to meet with an estate planning attorney to make changes anyway.  Under Missouri law, you can adjust your estate plan to cut out your soon to be ex-spouse.  You can’t completely cut them out (unless you have a prenuptial agreement or postnuptial agreement), but you can ensure that they will not inherit everything, which would be the case if you did nothing and passed before your divorce was finalized.

What happens if I have a trust and am getting divorced?

That depends on the type of joint trust you have.  An irrevocable trust attorney O’Fallon, Missouri  can explain in more detail, but the terms of this type of trust cannot be changed after the trust is created, regardless of divorce.  This type of joint trust, however, is usually created by spouses to benefit their children.

If, on the other hand, you have a revocable joint trust, both spouses can retain control over the assets.  Of course, this assumes you would want to do that.  Most of the time, spouses want to dissolve their trust and distribute assets as agreed in their marital settlement agreement.  From there, you can take the safest step and create a new estate plan with your own trust, a new will and new powers of attorney.  You’d probably want to do that anyway, since your now ex-spouse is usually listed as your principal in your healthcare power of attorney and durable power of attorney documents.

Do you really want your ex-spouse making healthcare calls for you at the end of life?  Me neither.

As you can see, the best practice, at a minimum, when you are going through a divorce is to sit down and review your estate plan with an experienced estate planning attorney.

 

 

Five Power of Attorney Myths…

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.

Estate Planning For Children Struggling With Addiction

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.