The 3 MOST IMPORTANT DOCUMENTS
EVERYONE SHOULD HAVE starting at the AGE of 18
A Durable Power of Attorney (for finances) appoints someone to act on your behalf if you are no longer capable of handling your finances. Without a valid and powerful Durable Power of Attorney, the family will be forced to apply for a Conservatorship through the Probate Court to pay bills and handle investments. Without having in writing who you wish to handle your affairs, the Court may appoint someone you would not have chosen to handle things for you. A powerful and properly drawn up Durable Power of Attorney will allow the person you appoint to protect assets for your quality of life and quality of care.
The most common issues we see when reviewing someone’s Durable Power of Attorney, is that they are not powerful enough. A common misconception is, “I am power of attorney for my parents, therefore, I can do anything I want.” Unfortunately, that is not true. A Durable Power of Attorney is ONLY as good as what you give someone the ability to handle for you. If it is not stated in the Durable Power of Attorney, they cannot do it.
For the Durable Power of Attorney to be effective if you loose mental capacity it must be a DURABLE Power of Attorney. There is specific language set out in the law that must be contained in the document or the document will no longer be effective if you become incompetent.
A Durable Power of Attorney may be immediate or springing. In other words, you can immediately give someone the ability to handle your financial affairs OR either one or two (your choice) doctors must certify that you can no longer handle your financial affairs before someone takes over for you.
Durable Power of Attorney for Health Care Decisions appoints someone to act on your behalf to make health care decisions for you if you are no longer capable of making them yourself. Without this document in place, the family will be forced to apply for a Guardianship through the Probate Court to make health care decisions for you.
In the State of Missouri if you do not wish to be kept alive by artificial means (e.g. feeding tubes, etc.) then you MUST have a Durable Power of Attorney for Health Care. “My family and/or doctor knows what I want” is not sufficient to allow someone to withhold or withdraw life support.
We often see documents that are referred to as “advanced directives” or “living wills.” No matter what the document is called, unless it is in writing AND meets the criteria set out by the law, and meets the qualifications for a Durable Power of Attorney for Health Care you WILL be kept alive by artificial means.
HIPAA Releases do NOT appoint people to make the decision for you, but tells health care providers with whom they may share your private medical information.
We have heard of emergency room doctors refusing to give information to a spouse. You do NOT want your family to be left in the dark about your health and medical conditions!
How can the people appointed to make medical decisions for you (if you can’t make them) make appropriate decisions if medical personnel won’t tell them what is going on?
Up until recently having a HIPAA Release was not that big of a deal. However, fines starting at $50,000 and going up to $1,500,000 a year are now in place for anyone who comes in contact with an individuals medical information and doesn’t protect it from being seen or heard by someone else who does not have permission to see or hear that information. If they have not already, all medical providers are going to become extremely careful about not sharing your medical information without having written permission to do so!
Why is Guardianship and Conservatorship a big deal? The Probate Court requires a surety Bond for the person appointed Conservator and/or Guardian. The Bond is based on the amount of assets owned by you. It must be renewed annually and is VERY expensive and very cumbersome.
A Conservatorship and Guardianship lasts the rest of your life, requiring two annual filings with the Probate Court (continued legal fees) and the Court must approve every dollar spent for, or on, your behalf. The attorney’s fee for a Conservatorship and/or Guardianship in the FIRST YEAR alone average between $5,000 and $10,000.
I’m married, my spouse can make decisions for me. That may be how you feel, but unless you have a Durable Power of Attorney appointing your spouse to make financial and health care decisions, the law presumes you do not want him or her to make those decisions.
Do you have a child or grandchild about to turn 18? Many parents do not realize that when they send their child off to college or the child turns 18, that they can no longer make health care decisions for the child without a valid Durable Power of Attorney for Health Care Decisions. Unfortunately, many times they figure this out when their child has been in an accident or becomes ill. We strongly urge parents to have a Durable Power of Attorney for Health Care Decisions drawn up as soon as their child turns 18.