What You Need to Know About Powers of Attorney
Can my spouse make my medical decisions if I am incapacitated?:
The Importance of Powers of Attorney In Missouri, your spouse may not automatically make your medical decisions if you are incapacitated, unless you signed a Healthcare Power of Attorney before you became incapacitated. A common misconception is that a spouse can handle finances and make medical decisions for their incapacitated spouse simply because they are married. This is not true. A person may not handle legal tasks, make medical decisions, or act for another person without a power of attorney or court involvement (such as a guardianship). This restriction is true even if the incapacitated person is your spouse, your parent, or your adult child (over the age of 18). A power of attorney must be signed by a person before they are incapacitated. Therefore, everyone over the age of 18 should have a Healthcare Power of Attorney and General Durable Power of Attorney naming a trusted person to make their medical and financial decisions in case of an incapacity event such as a car accident, serious illness, etc.
A power of attorney is a document in which a person appoints an “Agent” to make that person’s financial and/or healthcare decisions. The person giving the power is called the “Principal.” The person being named to make decisions for the Principal is called the “Agent”, “Surrogate”, or “Attorney-in-Fact.” The person named as the Agent does not have to be a spouse or family member; he/she can be any trusted individual. The power of attorney must be created and signed by the Principal prior to the incapacity of the Principal and, in many instances, may avoid the need for court if the Principal becomes incapacitated, which saves substantial time, expense, and stress.
There are two primary types of powers of attorney:
A Healthcare Power of Attorney and
A General Durable Power of Attorney for finances and legal matters.
The Healthcare Power of Attorney
A Healthcare Power of Attorney may be referred to as a “medical power of attorney” or a “medical directive.” Generally, a Healthcare Power of Attorney allows the Agent the ability to make decisions concerning healthcare when the Principal becomes incapacitated or unable to communicate his/her own decisions. Sometimes the Healthcare Power of Attorney includes an “advanced directive” or “living will,” which expresses the Principal’s wishes concerning end-of-life care and treatment.
The General Durable Power of Attorney
The General Durable Power of Attorney is the one that most people know as the “financial power of attorney”, but it is much more than that. The General Durable Power of Attorney allows the Agent, on behalf of the Principal, to handle money and make financial decisions, continue the operation of a business, manage investments, buy and sell real estate, and apply for government benefits, just to name a few. The powers granted by a General Durable Power of Attorney can be broad and sweeping and allow the person named as Agent the ability to “step into the shoes” of the Principal to make decisions. A General Power of Attorney does not have to grant those powers immediately, however; it can be set up to be “springing,” which means the power only becomes effective upon the Principal’s incapacity. Whether to make a General Durable Power of Attorney immediate or springing is a decision that should be made only after discussing it with a qualified attorney.
All powers of attorney are revocable, meaning that the Principal can void, terminate, and cancel the power of attorney document at their direction. An Agent has a legal and ethical duty to act in the best interest of the Principal and is accountable to the Principal. The Agent may be called upon to account for the actions taken under the power of attorney. If an Agent abuses the powers granted under the power of attorney, he/she may be subject to prosecution for elder abuse and may be subject to a civil lawsuit.
We often have clients ask why they should not use a form power of attorney. First and foremost, it is important to have a discussion with a qualified elder law attorney about not only what a power of attorney does for you, but who you should (or should not) name as your Agent. Powers of attorney are very broad documents giving access to one’s financial and medical affairs. All too often we see clients who named an Agent simply because the Agent is family member, and not because they are the best person to act. It is important that you talk to an elder law attorney about the decision of who to name as your Agent. Second, the form powers of attorney may be limited in purpose and scope and may not include everything you need. Unfortunately, those forms are generally not used until you loose capacity to sign a legal document and, at that point, it is too late to make the necessary changes to update the power of attorney. For example, we see form powers of attorney that do not include the appropriate language to allow the Agent to sell real estate, access retirement accounts, file a tax return, etc., which may need to be done if you become incapacitated.
The advice of a qualified elder law attorney is important when you decide to sign a healthcare or financial power of attorney. The attorneys at The Elder Law Group are experienced in drafting comprehensive powers of attorney and educating clients on what estate planning documents are needed to meet your goals. Contact us today at 417-708-2044 or at info@TheElderLawGroup.com to schedule a consultation.
The information in this blog post is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this blog post should be construed as legal advice. No reader of this post should act or refrain from acting on the basis of any information included in this blog post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.