What is a power of attorney?

POWER OF ATTORNEY – FREQUENTLY ASKED QUESTIONSA power of attorney (sometimes abbreviated as “POA”) is a legal document in which a person appoints another person to act in their place if they are unable to take actions themselves.  The person who creates the power of attorney is called the principal, the person who is named power of attorney is called the agent or attorney-in-fact.

Can I name more than one person to be my power of attorney?

Yes.  You can have co-agents in which more than one person serves together to action in your place.  This can be tricky, however, because there may be disagreement. Ultimately, choosing a power of attorney is a different process for everyone because of their unique circumstances.  Even if you choose to only have one power of attorney acting at a time, you should name successor agent(s) to act on your behalf if your first choice cannot serve.

Are there different types of powers of attorney?

Yes.  Specifically, there are general, durable and limited powers of attorney.  A general grants broad powers to act with respect to the principal’s assets while they are alive and not incapacitated.  A durable power of attorney, however, remains in effect even after the principal becomes incapacitated. A limited power of attorney, sometimes called a special power of attorney restricts the agent’s powers to a particular purpose.  An example would be when a person selling their house but can’t attend the closing of the sale grants a limited power of attorney to an agent to sign closing documents. After the closing, the document would no longer be valid because the purpose was limited.

What is a springing power of attorney?

A springing power of attorney is not immediately effective but becomes effective at some future date, as dictated in the document.  An example would be a springing power of attorney that becomes effective when the principal’s doctor determines they are not able to manage their own affairs anymore.

What can a power of attorney do on my behalf?

That is specifically spelled out in the document but ordinarily they can sign documents, make decisions for you and taken necessary actions on your behalf.  Examples include filing tax returns, selling property, investing your money and signing and depositing checks.

Is my power of attorney paid for acting on my behalf?

That is up to you.  State laws vary but ordinarily a POA can be paid if the document does not say they can be.  Usually any fees for a POA are to be reasonable based on the circumstances. I usually recommend that my clients not pay their POA if it’s immediate family.  On the other hand, you are handing a lot of responsibility to someone if they are not an immediate family member, so it makes more sense to pay these individuals.  If you don’t pay them, they are less likely to take on the responsibility.

What about healthcare decisions?

A healthcare power of attorney is ordinarily separate and apart from a financial power of attorney.  In Missouri, a healthcare power of attorney allows you to decide whether you want to have one or two doctors determine your incapacitated before your agent can make decisions on your behalf.  You can also decide if you want to be buried or cremated when you pass away, if you want artificially supplied nutrition and hydration to be given and whether it’s your agent who can withdraw that or not and whether you want to donate organs.

Is a healthcare directive the same things as a healthcare power of attorney?

In Missouri they are not the same thing but they are often in the same document.  Healthcare directives (also known as living wills and/or advanced directive / medical directive) allow you to given instructions for your agent to follow at the end of life.  If you’re in a coma, or terminally ill and can’t make decisions, you are telling your agent in a Missouri healthcare directive that you want to either have or not have the following types of care:  chemotherapy, radiation, surgery, artificially supplied nutrition and hydration, antibiotics, and any and all other life prolonging medical procedures.

Why wouldn’t I want to have things like antibiotics or a feeding tube if I was still alive?

Remember that if you are in a coma or terminally ill and a doctor does not feel any of these procedures can bring you back to a level of quality of life that you want, you’re going to be merely be kept alive with no hope of recovery.  Very few people want to live this way and for good reason. The power of the healthcare directive is that you are telling your agent what your choices are about this, in advance of it happening. Without the healthcare directive, your agent has to guess.  You can imagine how difficult this might be for anyone, particularly for a close family member who loves you.

What if I don’t have one?

Then your next of kin each has an equal say.  So that’s your spouse first. But after that it would be all of your children with an equal say, hopefully being able to make a decision together.  It’s the rare family that can come together in a crisis and make a decision together without dissent. It’s much better for you to pick who’s in charge and let them talk to everyone but have the ultimate say how things occur.  That’s the power in a healthcare power of attorney.

What if I lose capacity, can I then create a power of attorney?

No, because you have to have capacity to create a power of attorney.  A Missouri guardianship petition must be filed in the county court in which you live.  A hearing will be held and at this hearing a St. Peters probate lawyer will represent the petitioner, hopefully a family member.  The court must make the determination that you are incapacitated to a degree such that you could be a danger to yourself and/or are unable to manage your own affairs.



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