Power of Attorney: A Powerful Tool for Elder Planning

Picture this: You’re in the hospital after a bad fall, you have bills piling up, and your doctor needs a decision about surgery. Do you have someone you trust to handle those issues and make those decisions on your behalf if you are unable to? And even if you do, have you granted them the legal authority to do so? If you haven’t planned for such a scenario, you should consider incorporating a power of attorney (POA) into your elder plan, as such instruments can be powerful tools for ensuring that your wishes are respected should you become incapacitated. A Springfield elder lawyer can help you craft a POA that covers all of your bases. 

The Basics of Power of Attorney in Missouri 

In broad terms, a POA allows you (the principal) to grant someone else (an attorney-in-fact) the official legal authority to take actions and make decisions on your behalf. The powers granted under a POA can be as broad or narrow as the principal wishes, and principals are given wide latitude under Missouri law to grant authority to their attorneys-in-fact. There are several different types of POAs, with the most common being: 

• General POA: Grants the attorney-in-fact authority to act until the principal becomes incapacitated 
• Durable POA: Grants the attorney-in-fact authority to act that continues even after the principal becomes incapacitated 
• Springing POA: Grants the attorney-in-fact authority to act only upon the principal’s incapacity

For elder planning purposes, durable POAs and springing POAs are the most useful, as the power granted under them continues after (or upon) the principal’s incapacity. A well-drafted durable or springing POA often precludes the need to obtain a guardianship or conservatorship for an incapacitated elder — both of which are lengthy processes requiring court involvement. 

How Power of Attorney Can Be Used for Elder Planning 

The power granted under a POA can authorize the attorney-in-fact to make financial decisions and/or healthcare decisions on behalf of their principals, both of which are crucial considerations in elder planning. That decision-making authority can be as broad or narrow as the principal wishes. For more detailed information about how best to craft a POA specifically for elder planning purposes, consider speaking to a Springfield elder lawyer. 

Financial Uses 

Financial POAs give attorneys-in-fact the authority to manage the finances of their principals. For elder planning purposes, POAs can be drafted to authorize attorneys-in-fact to handle the following matters: 

• Banking and investments: Open and close accounts, write checks, transfer funds, and make gifts 
• Real estate: Buy, sell, lease, and manage property (including selling an elder’s home prior to moving to assisted living)
• Retirement accounts and taxes: File tax returns, manage required minimum distributions, and change beneficiary designations
• Government benefits: Apply for and/or manage various government benefits, including Social Security and Medicare 

Keep in mind, however, that Missouri law requires specific language in POAs in order for an attorney-in-fact to be authorized to handle several of the above matters, which a Springfield elder lawyer can go over in more detail with you. 

Healthcare Uses

POAs are not limited to financial matters; they can also be used to delegate healthcare decision-making. A durable power of attorney for healthcare is perhaps one of the most important documents in any elder plan, as it enables elders to designate someone they trust to make healthcare decisions on their behalf in accordance with their stated wishes. This authority can include: 

• Choosing doctors
• Consenting to medical procedures 
• Obtaining medical information 
• Arranging rehabilitation
• Making end-of-life decisions

Seniors often assume that their spouse and/or children will be able to make these decisions for them, but the law does not guarantee that without the proper legal instruments in place. Moreover, POAs do not merely give the attorney-in-fact the authority to act; they also provide instructions on how the attorney-in-fact is to act. Given that many elders are incapacitated when important medical decisions need to be made, a well-drafted healthcare POA can ensure that their wishes are honored. 

Long-Term Care Uses 

POAs are powerful tools in long-term care planning. That’s because they authorize attorneys-in-fact to handle long-term care arrangements and financing on behalf of their principals. For example, healthcare POAs can be drafted to enable the attorney-in-fact to admit elders to long-term care facilities, as well as to make further decisions about their treatment therein. Financial POAs can be used for asset protection, allowing attorneys-in-fact to transfer property, create special needs trusts, and purchase Medicaid-compliant annuities, among other purposes.  Again, however, Missouri law requires specific language to enable POAs to take many of these actions; therefore, you should consult with a Springfield elder law attorney if you’re interested in using a POA for long-term care planning purposes. 

Limitations on Power of Attorney 

While the authority granted under a POA can be broad, it cannot be absolute. No matter how broad the POA or what specific language is included therein, POAs may not: 

• Make, publish, declare, amend, or revoke a will for the principal 
• Make, execute, modify, or revoke a living will declaration for the principal 
• Require the principal to take any action or refrain from taking any action 
• Carry out actions specifically forbidden by the principal while not incapacitated 

Even with these hard limits, principals should still consider building safeguards into their POAs to prevent POA abuse (or even unintentional deviations from the principal’s instructions). For example, many principals choose to name more than one attorney-in-fact, whether as co-attorneys-in-fact for every decision or with specific decision-making authority for each attorney-in-fact. It is also not uncommon to include provisions requiring periodic oversight or accountings by another family member or professional. 

Make a Plan Now With Help From a Springfield Elder Lawyer 

Don’t wait for a crisis to arise before you execute a POA — by then, it might be too late. For more information about how to incorporate a POA into your elder plan, please contact a Springfield elder lawyer at the LifeGen Law Group by calling 417-823-9898 or using our online contact form.