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Many people view estate planning as a form of wealth management, but it is actually about much more than that. In simplest terms, estate planning is the process of deciding how your money, property, and personal wishes — including healthcare preferences and decisions — should be handled if you become unable to communicate your wishes through incapacitation.
Estate plans are made up of various legal documents that work in tandem to create a comprehensive plan. For Missourians, one of the most essential legal documents to include in an estate plan is called the Durable Power of Attorney for Health Care, which will communicate their medical wishes and preferences, should they become incapacitated and unable to communicate for themselves.
This article will explain everything you need to know about the Durable Power of Attorney for Health Care and how a trusted estate planning lawyer from The Law Office of David S. Schleiffarth, LLC, can help you get started.
Understanding the Durable Power of Attorney for Health Care in Missouri
When creating a Durable Power of Attorney for Health Care, Missouri residents will appoint a trusted individual — often called a ‘health care agent’ — to make medical decisions on their behalf in the event they become incapacitated due to illness, mental decline, or injury. These agents are tasked with consulting doctors and medical professionals, approving or declining treatments, making end-of-life decisions, and more.
In Missouri, residents can include specific instructions and limitations on their agent’s authority, allowing for greater freedom of personal wishes. In order to be legally effective, this document must be properly drafted, executed, and filed, which is why it’s important to work closely with an experienced estate planning attorney.
Legal Requirements and Activation in Missouri
Every state, including Missouri, has specific laws governing the appointment of Durable Power of Attorney for Health Care. To be considered legally valid, several legal requirements must be met, including the following:
- Capacity and age. The principal (person establishing the Durable Power of Attorney) must be at least 18 years old at the time of the document’s creation. They must also have the mental capacity to understand its implications and effects.
- Written form. The Durable Power of Attorney for Health Care must be in writing and signed by the principal or by someone the principal directs to sign the document in their presence.
- Signatures. The document must be signed by two adult witnesses who are not the agent, the spouse of the agent, a facility staff member (if the principal is a resident), or beneficiaries.
- Agent requirements. The chosen agent must be an adult with mental capacity who is not the principal’s attending physician or an owner, operator, or staff member at the facility at which the principal lives (if they are a resident).
Although not required by Missouri law, the principal can choose to have their Durable Power of Attorney for Health Care notarized to enhance its authenticity.
In addition to the legal requirements for the document’s execution, Missouri law has specific laws and rules related to its activation. It’s important to note that a Durable Power of Attorney does not take immediate effect in Missouri. It only becomes active when the following criteria are met:
- The principal becomes incapacitated, as certified by at least one physician (or two physicians, if specified in the document).
- The principal’s attending physician provides written certification that confirms their inability to make health care decisions.
When these conditions are met, the agent’s authority is activated, and they can begin making key medical decisions. These may include consenting to medical treatments, continuing life-sustaining care, or any other decision within the authority granted by the principal. The agent’s authority continues until the principal regains capacity, revokes the agent’s authority, or passes away.
Choosing the Right Healthcare Agent
The agent you choose as your Durable Power of Attorney for Health Care will have tremendous power at a time when you are the most vulnerable, which is why choosing the right healthcare agent is extremely important. When choosing the best agent for you, it’s a good idea to take your time and think beyond the convenient or expected choice.
As experienced estate planning attorneys serving St. Louis, we strive to help our clients make the best possible decisions for themselves. Here our a few suggestions of what to look for in a potential healthcare agent:
- Trust and integrity. Choose a person you trust to act in your best interest and honor your wishes — even in difficult, high-pressure situations with family members and doctors.
- Emotional maturity. The person you choose needs to be capable of remaining calm and composed while making tough decisions and navigating medical emergencies. Avoid choosing someone who is easily overwhelmed, indecisive, or highly emotional in stressful situations.
- Proximity and availability. It’s important to choose an agent who is easily reachable and who has the availability to physically meet with providers and advocate for you in person. For this reason, it’s a good idea to avoid choosing an agent with significant time, financial, or family constraints, who would struggle to take time away.
- Understanding of your values. The best agent for you is someone who has a firm grasp on your beliefs, values, and ethics, as well as your preferences regarding end-of-life treatments, autonomy, and quality of life.
Keep in mind that just because you think someone would make an ideal agent for you doesn’t necessarily mean they agree. Don’t be afraid to have a frank conversation with a potential candidate about their capacity and willingness to serve in this way. Additionally, consider naming a backup agent in case your primary agent becomes unavailable or unable to serve.
Benefits of Establishing a Durable Power of Attorney for Health Care
There are numerous potential benefits of establishing a durable power of attorney for health care. Missouri residents who successfully appoint a health care agent can enjoy greater peace of mind, as well as the following advantages:
- The knowledge that their medical wishes will be followed in accordance with their stated values and preferences
- Avoiding court intervention to appoint a guardianship or conservatorship to make decisions on their behalf
- Less potential for family conflict, as all pertinent wishes and preferences are clearly documented and legally enforceable
- Flexibility and personalization, the ability to grant an agent wide or limited authority, specify various instructions, etc.
Ultimately, creating a Durable Power of Attorney allows you to communicate your wishes and assert your autonomy, even after becoming incapacitated. Although effective on its own, this legal document — like all estate planning tools — works best when integrated with other advance directives.
Integrating with Other Advance Directives
A Durable Power of Attorney for Health Care is just one of the advance directives you will want to consider when creating a robust estate plan. Depending on your specific goals and situation, a thoughtfully coordinated set of healthcare-related directives may include:
- A living will, also called a health care directive, which outlines your specific preferences for life-sustaining treatment, among other key wishes
- A HIPAA Authorization, which grants your healthcare agent and others access to your private medical records
- An Organ and Tissues Donation Directive, if applicable
By working with a trusted estate planning attorney to draft, execute, and file these documents, you can avoid time-consuming, costly errors, including conflicting directives — just one of the many reasons why you should work with an experienced estate planning expert.
How The Law Office of David S. Schleiffarth, LLC Can Assist You
At The Law Office of David S. Schleiffarth, LLC, we understand the legal complexities and considerations affecting Missourians today. With a deep understanding of Missouri State law and federal regulations, our estate planning attorneys have the knowledge, expertise, and experience to create a top-tier estate plan that is built around your unique goals and wishes.
No one can control the future, but everyone can plan for it. Speak with one of our trusted attorneys and start securing your future today.