Vantage Point Legal Services LLC

Durable Powers of Attorney

WHAT IS A POWER OF ATTORNEY?

A power of attorney is a document under which you appoint another person to act as your agent. An agent is someone who has legal authority to act on behalf of another person. The person who appoints the agent is called the principal; the agent is also called an attorney-in-fact. If you have appointed an agent by a power of attorney, then the acts of the agent within the authority spelled out in the power of attorney are legally binding on you, just as though you performed the acts yourself. The power of attorney can authorize the attorney-in-fact to perform a single act or a multitude of acts repeatedly. A power of attorney can be drafted so that it automatically expires upon a certain date, such as when the principal returns from a long vacation. A power of attorney can be drafted so that it is either general or durable, but not both. It can also be drafted for financial affairs or for health care decisions, or both.

WHO MAY BE APPOINTED UNDER A POWER OF ATTORNEY?

The agent appointed by power of attorney may be any adult over age 18, and is often a close relative, friend, lawyer, accountant or other trusted individual. The person appointed does not have to be a resident of the State of Missouri. However, under Missouri law the following persons may not serve as attorney-in-fact:

  1. No one connected with a facility licensed by the Missouri Department of Mental Health or Missouri Department of Social Services in which the principal resides, unless such person is closely related to the principal.
  2. No full time judge and no clerk of court, unless closely related to the principal.
  3. No one under the age of 18, no person judicially determined to be incapacitated or disabled, and no habitual drunkard.
  4. For a health care provider, no one who is the attending physician of the principal, and no one who is connected with the health care facility in which the principal is a patient, unless such a person is closely related to the principal.

WHAT IS A “DURABLE” POWER OF ATTORNEY?

Many people are unaware that an ordinary power of attorney is automatically revoked, and the agent’s power to act for the principal automatically stops, upon the principal becoming incapacitated. This often occurs when the power of attorney is needed the most. The solution to this problem is that, under Missouri law, and the law of many other states, a power of attorney with proper wording may be made “durable.” This means that the power of the agent to act on the principal’s behalf continues in spite of the principal’s incapacity, whether or not a court declares the principal to be incapacitated.

Through a durable power of attorney, an agent may continue to act on your behalf even after you have had a stroke or other incapacitating illness or accident. If the durable power of attorney so provides, the agent can among other things use your funds to pay your bills, contract for nursing home services for your benefit and make health care decisions for you. The powers granted to an attorney-in-fact under a durable power of attorney can be drafted broadly or narrowly, depending upon your desires.

An aging parent may wish to give a durable power of attorney to a responsible adult child so that the child can act on the parent’s behalf and carry on routine financial matters in the event the parent is disabled or incapacitated. This arrangement generally considered to be far wiser than making the child the joint owner of the parent’s bank accounts and other property and assets.

To create a durable power of attorney in Missouri, the title to the document must include the word “durable” and the document must state in substance: “This is a durable power of attorney and the authority of my attorney-in-fact shall not terminate if I become disabled or incapacitated or in the event of later uncertainly as to whether I am dead or alive.” In many other states, the document must state in substance that “this power of attorney shall not be affected by subsequent disability or incapacity.”

It is possible to create a durable power of attorney so that it will go into effect only when the principal is incapacitated or when some other stipulated event or condition occurs. This is ordinarily called a “springing” durable power of attorney, because it “springs” into effect upon the occurrence of the stated event.

WHAT IS A DURABLE POWER OF ATTORNEY FOR FINANCIAL AFFAIRS?

A durable power of attorney for financial affairs is a document that confers upon another person the legal power and authority to act on your behalf with respect to your legal matters and financial affairs in the event you become legally incapacitated on account of some mental or physical infirmity. It gives your named “attorney-in-fact” the broad power to write checks, pay bills, receive monies, enter your safe deposit box, deal with the IRS and other taxing authorities, enter into contracts, buy and sell real or personal property, borrow money, collect insurance proceeds, prosecute and defend claims and lawsuits, deal with the government, and exercise many other broadly drafted powers. Unless you specify otherwise, this kind of document is typically drafted in a very broad manner in order to convey to your attorney-in-fact virtually every conceivable power and authority that you currently enjoy. Your lawyer can draft the document to add or delete provisions so that it meets your specific desires and expectations.

WHAT IS THE RELATIONSHIP BETWEEN MY DURABLE POWER OF ATTORNEY FOR FINANCIAL AFFAIRS AND MY REVOCABLE TRUST?

The durable power of attorney does not affect any of the assets held in your revocable trust, since it is the terms of the revocable trust itself which govern them. In the event you become legally incapacitated, your successor trustee named in the revocable trust would succeed to your power and authority as trustee over the assets held in your trust. As a separate matter, your durable power of attorney would serve to convey to your attorney-in-fact your power and authority only over any of your assets not held in the revocable trust. The powers and authorities granted under the durable power of attorney cease immediately upon your death, whereas the powers and authorities granted to successor trustees continue under the express terms and conditions set forth in the trust beyond your death until the termination of the trust.

WHAT IS A DURABLE POWER OF ATTORNEY FOR HEALTH CARE?

A durable power of attorney for health care is a document that confers upon another person the legal power and authority to act on your behalf with respect to your health care in the event you become legally incapacitated on account of some mental or physical infirmity. It gives your named “attorney-in-fact” the broad power to give or withhold consent to medical treatment, and to exercise many other broadly drafted powers, such as the following:

  1. To consent, or refuse or withdraw consent, to any type of health care, medical care, treatment or procedure, even if death may result, including but not limited to artificial respiration, nutrition, and cardiopulmonary resuscitation;
  2. To have access to medical records and information to the same extent you have access, including but not limited to the right to disclose the contents to others;
  3. To authorize admission to or discharge from (even against medical advice) any hospital, nursing home, residential care, assisted living or similar facility or service, whether in or outside of the State of Missouri;
  4. To contract on your behalf for any health care related service without your Attorney incurring any personal liability for such contracts;
  5. To engage and discharge medical, social service and other support personnel responsible for your care;
  6. To grant any waiver or release from liability required by any health care provider;
  7. To make gifts of all or any part of your body, which may be taken either before or after your death, for any medical (including transplant or therapy) research or instructional purpose (and the power to make gifts shall include but not be limited to the power to give all or part of my body under the Uniform Anatomical Gift Act); to authorize autopsy or direct any other disposition of my remains; and
  8. To take any other action which your agent deems necessary or appropriate in your agent’s sole and absolute discretion with respect to your health care.

Unless you specify otherwise, this kind of document is typically drafted in a very broad manner in order to convey to your attorney-in-fact virtually every conceivable power and authority that you currently enjoy. Your lawyer can draft the document to add or delete provisions so that it meets your specific desires and expectations.

A durable power of attorney for health care is not same as a Living Will (see next section). You may want to sign both or neither, depending upon your personal desires. That is more of a personal decision than a legal one.

REVOCATION OF DURABLE POWER OF ATTORNEY

The death of the principal revokes even a durable power of attorney, except with respect to any third person relying on the power of attorney and who does not know of the death. Also, a durable power of attorney may be revoked by the principal at any time, either orally or in writing. It is recommended that, when possible, the revocation be written.

POWERS GRANTED BY “GENERAL” POWERS OF ATTORNEY

Under Missouri law before 1989, a valid power of attorney had to spell out in detail all of the powers and authorizations granted to the agent. Under a Missouri law adopted in 1989, it is possible to have a “general” power of attorney which authorizes the agent to act for the principal on every kind of subject or matter which may legally be handled through an agent, with certain specific exceptions mentioned below. However, it is still recommended that the power of attorney include as much detail as possible.

POWERS WHICH MUST BE SPECIFICALLY LISTED

In Missouri, certain powers must be specifically stated in the power of attorney in order for the attorney-in-fact to be authorized to perform such acts. Those powers are:

  1. To execute, amend or revoke any trust agreement;
  2. To fund with the principal’s assets any trust not created by the principal;
  3. To make or revoke a gift of the principal’s property in trust or otherwise;
  4. To disclaim a gift or devise or property to or for the benefit of the principal;
  5. To create or change survivorship interests in the principal’s property or in property in which the principal may have interest;
  6. To designate or change the designation of beneficiaries to receive any property, benefit or contract right on the principal’s death;
  7. To give or withhold consent to an autopsy or postmortem examination;
  8. To make a gift, or decline to make a gift, of the principal’s body parts under the Uniform Anatomical Gift Act;
  9. To nominate a guardian or conservator for the principal;
  10. To give consent to or prohibit any type of health care, medical care, treatment or procedure;
  11. To designate one or more substitute or successor or additional attorneys-in-fact; or
  12. To direct the withholding or withdrawal of artificially supplied nutrition or hydration.

POWERS WHICH MAY NOT BE GRANTED BY A POWER OF ATTORNEY

No power of attorney governed by the Missouri law may grant power to an agent to carry out any of the following actions for the principal:

  1. To make, publish, declare, amend or revoke a will for the principal;
  2. To make, execute, modify or revoke a living will declaration for the principal;
  3. To require the principal, against his or her will, to take any action or to refrain from taking any action; or
  4. To carry out any actions specifically forbidden by the principal while not under any disability or incapacity.

MUST I SIGN A POWER? AND IF I DO, WILL IT BE FOLLOWED?

No person can be forced to sign a power of attorney, especially one for health care decisions. You cannot be required to sign any such document as a pre-condition for admission to a hospital. Once created, your directions must be followed. If a physician or other health care provider declines to follow your instructions due to religious beliefs or moral convictions, such health care provider must transfer your care to another physician or facility who will honor your instructions. For this reason, it is always advisable to discuss these issues with your physician in advance of any hospitalization or extensive treatment.

CAUTION IN PREPARING AND GRANTING POWERS OF ATTORNEY

An effective durable power of attorney, and especially a springing durable power of attorney, needs to be very carefully worded and you should seek the assistance of a Missouri lawyer who practices in this area. Furthermore, you should use great care in the selection of your attorney-in-fact. Remember, you are trusting not only your property, but perhaps your life, to the person you appoint.

WHO CAN BEST ADVISE YOU ABOUT A DURABLE POWER OF ATTORNEY?

You should never sign a durable power of attorney without the advice of an attorney who practices in this area of law. He or she will be able to advise if a durable power of attorney is right for you.