Most people understand why they need a will. Fewer understand why they need a power of attorney, and even fewer have one in place. That gap has real consequences. A will only takes effect when you die. A power of attorney is what protects you while you are still alive but unable to make decisions for yourself.
If you become incapacitated by illness, injury, or age without a valid power of attorney, your family may have to go to court to gain the authority to manage your finances, pay your bills, or make medical decisions on your behalf. That process is called guardianship or conservatorship. It is slow, expensive, public, and often contentious. A properly drafted power of attorney avoids it entirely.
At Rogers Sevastianos & Bante LLP, we help individuals and families throughout St. Louis, St. Louis County, and the surrounding Missouri region put the estate planning documents in place that protect them in life and after death. Here is what a Missouri power of attorney is, what it covers, and why every adult needs one.
What Is a Power of Attorney?
A power of attorney is a legal document in which one person (the principal) authorizes another person (the agent, sometimes called the attorney-in-fact) to act on their behalf. The agent’s authority is defined by the terms of the document and can range from very limited to very broad.
A power of attorney takes effect during the principal’s lifetime. It ends automatically at the principal’s death, at which point the will and any trust documents govern the disposition of the principal’s affairs.
Missouri recognizes several types of powers of attorney, and each serves a different purpose.
Types of Powers of Attorney in Missouri
Missouri law recognizes several distinct types of powers of attorney. Understanding the differences matters, because using the wrong type for the wrong purpose can leave you or your family without the authority you actually need.
Durable Financial Power of Attorney
A durable financial power of attorney authorizes your agent to manage your financial affairs. The word “durable” is critical: it means the power remains effective even if you become incapacitated.
A properly drafted durable financial power of attorney can authorize your agent to:
- Pay your bills and manage your bank accounts
- Buy, sell, and manage real estate
- File tax returns and handle tax matters
- Manage your investments
- Operate or wind down a business
- Handle insurance matters
- Deal with government benefits, including Social Security and Medicare
The scope of the agent’s authority is defined by the document itself. Some durable financial powers of attorney are broad; others limit the agent to specific tasks.
Health Care Power of Attorney (Durable Power of Attorney for Health Care)
A health care power of attorney authorizes your agent to make medical decisions for you if you are unable to make them yourself. This includes:
- Consenting to or refusing medical treatment
- Choosing among treatment options
- Selecting healthcare providers and facilities
- Accessing your medical records
- Making end-of-life care decisions consistent with your wishes
Missouri’s health care power of attorney is often paired with a Missouri living will (also called a health care directive), which sets out your wishes regarding life-sustaining treatment in specific circumstances.
Limited or Special Power of Attorney
A limited power of attorney authorizes your agent to act on your behalf for a specific purpose or transaction. Examples include:
- Signing closing documents on a real estate sale while you are out of the country
- Managing a specific bank account
- Handling a single legal matter
A limited power of attorney ends when the specified task is complete or on a date set out in the document.
Springing Power of Attorney
A springing power of attorney takes effect only upon the occurrence of a specified event, most commonly the principal’s incapacity. Some Missouri residents prefer this arrangement because they want their agent to have authority only if they cannot act for themselves.
Springing powers of attorney can create practical problems, however, because banks and other institutions may require proof of incapacity before honoring the document. For that reason, many Missouri estate planning attorneys recommend a durable power of attorney that is immediately effective, with the understanding that the agent will only act if actually needed.
What Happens If You Become Incapacitated Without a Power of Attorney?
If you become unable to manage your affairs and have no power of attorney in place, your family cannot simply step in. Instead, they must petition a Missouri probate court to be appointed as your guardian, your conservator, or both.
A guardian is a court-appointed person with authority to make personal and healthcare decisions for an incapacitated adult. A conservator is a court-appointed person with authority to manage the finances and property of an incapacitated adult. In Missouri, guardianship and conservatorship proceedings are governed by RSMo Chapter 475.
Guardianship and conservatorship proceedings involve:
- Filing a court petition
- Notice to family members and the incapacitated person
- Court hearings, sometimes multiple
- The appointment of an attorney to represent the alleged incapacitated person
- Ongoing court supervision, including annual reports
- Attorney’s fees, court costs, and administrative expenses
The process is slow, often taking weeks or months to complete. It is public, meaning family details become part of the court record. And it can be contested when family members disagree about who should serve or how decisions should be made.
A power of attorney avoids all of this. It puts the authority in the hands of the person you chose, in advance, on the terms you set.
Who Should You Name as Your Agent?
Choosing the right agent is one of the most important decisions in creating a power of attorney. Your agent will potentially have significant authority over your finances, your healthcare, or both. That authority creates real potential for both benefit and harm.
Factors to consider when choosing an agent include:
- Trust. The agent must be someone you trust completely and unconditionally.
- Judgment. The agent should be capable of making sound decisions under pressure.
- Availability. The agent should live close enough or be available enough to act when needed.
- Financial competence. For a financial power of attorney, the agent should be capable of managing money responsibly.
- Willingness. The agent should actually want to take on the responsibility, not feel forced into it.
Many people name a spouse, an adult child, or a close family member as agent. Others name a trusted friend, a professional fiduciary, or an attorney. It is often wise to name a successor agent as well, in case the primary agent is unavailable or unable to serve.
What Makes a Missouri Power of Attorney Valid?
Missouri’s Uniform Durable Power of Attorney Act, found in RSMo Chapter 404, governs the requirements for a valid power of attorney in Missouri. Generally, a valid Missouri power of attorney must be:
- In writing
- Signed by the principal
- Notarized (for most powers of attorney involving real estate or that will be recorded)
For health care powers of attorney, Missouri law under RSMo Chapter 404 has specific execution requirements, including witnesses in addition to notarization.
The specific requirements vary based on the type of power of attorney and its intended use. This is one of the reasons a Missouri estate planning attorney should draft the document, rather than relying on a generic online form that may not comply with Missouri law.
When Should You Create a Power of Attorney?
The right time to create a power of attorney is when you do not yet need one. Once you become incapacitated, it is too late. You must have the mental capacity to understand and sign the document when it is executed.
Every adult in Missouri should have both a durable financial power of attorney and a health care power of attorney in place. The right time is now, not later.
Speak With a St. Louis Estate Planning Attorney
If you do not yet have a Missouri power of attorney in place, or if your existing documents are outdated, the estate planning attorneys at Rogers Sevastianos & Bante LLP are here to help. We work with individuals and families throughout St. Louis and the surrounding Missouri region to create the full range of estate planning documents, including durable financial powers of attorney, health care powers of attorney, and living wills.
A power of attorney is one of the most important documents any adult can put in place. Contact our office today to schedule a consultation and ensure your affairs will be handled by the person you choose, on the terms you set.
Disclaimer: The information in this blog is for general informational purposes only and does not constitute legal advice. Every legal situation is unique, and you should consult an attorney for personalized guidance on your specific circumstances.