Estate Planning Q&A Series: Providing Others with the Power to Make Medical and Legal Decisions
What is a “Living Will”?
A “Living Will” is sometimes referred to as a “Medical Directive.” This document was prompted by some well publicized cases involving parents or spouses keeping comatose persons alive only in a technical sense and long after all brain activity had ceased. To avoid being kept alive in a permanent state of unconsciousness, some people give physicians and relatives the clear instruction to not keep them alive by artificial means when all hope of recovery and consciousness has gone. You may consider it to be a good idea to have signed this type of document so that your loved ones know that you are comfortable with end of life decisions being made for you if you are unable to make them for yourself. Such a document can prescribe that you authorize your care givers to withhold medication, food, hydration, and to give you palliative care if hope of recovery and regaining useful consciousness is not probable. This document also provides for organ donations. Although you need to be comfortable with the provisions of this document, most hospitals appreciate it if some form of this agreement is executed.
What is a “Durable General Power of Attorney”?
A durable general power of attorney is a grant of authority to someone to act on your behalf. This is a “powerful document” in that signing it means you would be giving someone else the authority to deal with your property and assets in the same manner you might personally deal with those assets. Thus this document would authorize the person designated as holding your power of attorney to sell anything you own, to enter into contracts to which you would be obligated, to make investments, and even to modify your estate planning documents. Obviously you would not grant this authority to anyone in whom you did not have complete trust. Even though there are risks associated with a document granting this authority, however, it can be extremely useful. For example, if all of your assets are supposed to be held in trust in order to effect your estate plan, but it is discovered that you have assets titled in a different manner, those assets can be converted by the person holding a power of attorney into assets held by a trust or trusts so as to avoid probate or otherwise conform to your estate planning.
The term “durable” in the title of this document is intended to refer to the fact that this power of attorney is not revoked even though the person who grants the power of attorney becomes incompetent. The normal rule is that a power of attorney is automatically terminated when the grantor of that power becomes mentally incompetent. A durable power of attorney survives and remains effective even though the person who granted the power of attorney, although competent at the time the power of attorney is signed, thereafter becomes incompetent. As a practical matter, it is very rare for a durable general power of attorney to be needed unless and until the person who granted the power of attorney becomes incompetent. Sometimes they are needed when the grantor is out of the country and cannot be reached or if there is some uncertainty as to whether they are alive or dead. Most of the time, however, this document enables successors to act for the grantor in an emergency situation, and when the grantor cannot act for themselves.
Some attorneys write these powers of attorney so that they only are effective when the grantor becomes incompetent. However, it is very difficult to prove incompetence in the absence of a judicial declaration to that effect. Therefore, just when your agent might need the use of the power of attorney the most, your agent would be unable to use it if, in order to do so, he or she had to prove that the grantor of the power was incompetent. It may be preferable that these agreements be effective immediately upon signature so that the person to whom the power is granted would immediately have the power to act as agent for the grantor of the power. But this is a tradeoff, i.e., utility and expedience in use may be preferable to the agent designated having the authority to act only if you cannot act for yourself. The risk is that because the power of attorney is effective immediately, the person to whom the power is granted could do something with your property that you would not want done. Thus you take a risk in granting this authority because you might be disappointed. Only you can make this choice, and an attorney can draft this particular agreement any way you want. The enclosed draft, however, provides that the durable power of attorney becomes effective immediately and does not require that you be incompetent before it can be utilized.
What is a “Health Care Power of Attorney?
The purpose of a health care power of attorney is to allow the authorized person(s) named in this document to make health care decisions for you if you are unconscious. These health care decisions could include surgery, medication, and other treatments that otherwise could not be performed in the absence of your consent. By signing such a document, you authorize someone to act on your behalf in giving the hospital or physician involved permission to undertake the surgery or treatment deemed appropriate. This document authorizes someone to proceed on your behalf to make these decisions for you if you cannot make them for yourself.
Estate planning is a complicated area of law and there are a number of mechanisms by which an individual can provide instructions or authority regarding medical and legal decisions. If you are interested in reading more about estate planning, we encourage you to visit other articles in our Estate Planning Q&A Series:
Introduction to Estate Planning
What is Probate, What Occurs During a Probate Administration, and How May Probate be Avoided
Trusts
Whether you are ready to begin planning your estate, you want to amend an existing estate plan, or you may administer a decedent’s estate, the attorneys at our firm would be honored to assist you.
This article seeks to provide a summary of some common questions about estate planning in Missouri and does not address all aspects, elements, restrictions, or requirements. This article is not offered, nor should it be construed, as legal advice. You should not act or rely upon information contained in these materials without specifically seeking professional legal advice. You should consult an attorney if you have any questions about your legal matter. Choosing a lawyer is an extremely important decision and should not be based solely upon advertisements.
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