Healthcare Power of Attorney

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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. 

Family Fighting Over Powers of Attorney…

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.

Evolving right to die laws…

Evolving right to die laws…

The link below is a very in depth article to read about the evolution and growth of Right to Die laws in the United States and around the world.  Right to die laws concern the ability of a person to end their lives prematurely if they are terminally ill.  Interestingly, this ties into estate planning with the need for a strong healthcare power of attorney and healthcare directive (sometimes referred to as an advanced directive or living will) which outlines your wishes as to continuing medical care and life preserving treatment if you are terminally ill, persistently unconscious or there is no reasonable expectation of your recovery from a serious illness or condition.

Right to die differs, however.  In all but a few states in America, it is currently illegal to assist in the death of the patient.  Your healthcare directive can state that you wishes are not to have continuing life preserving care if it is not going to make a difference, but no steps can be proactively taken to end your life.  This is obviously a clear distinction and one that the article covers.

I expect right to die to become a key issue (if it is not already) in the coming years, with an aging Baby Boomer population and many industrialized countries such as India and China having large aging populations.  It is a contentious issue as well, for clear reasons.  Taking someone’s life has never been an accepted medical standard for treating terminal illness.  Right to die could change that for terminally ill patients.

Here is the link to the article:

http://www.economist.com/news/leaders/21656182-doctors-should-be-allowed-help-suffering-and-terminally-ill-die-when-they-choose