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Durable Powers of Attorney
The Durable Power of Attorney is a method of planning for financial and health care decisions during one’s lifetime. A Durable Power of Attorney is a document that grants to another person, called the attorney-in-fact, the power to execute and carry out certain activities. The maker is the person who executes or makes the power of attorney, and the attorney-in-fact is the person or agent who is given the power to act.
The Durable Power may be given for Financial Purposes, such as signing checks, collecting income, making withdrawals from account, suing, selling or purchasing assets, borrowing money or signing tax returns. A Medical Power of Attorney may be given to grant another person the ability to make medical and health care decisions on one’s behalf, if one is unable to do so, in other words, if one is incapacitated.
A standard power of attorney would become ineffective at the point its maker became incapacitated. The fact that the Power of Attorney is “durable” means that it survives one’s incapacity. The legislature in Missouri has decided that a Durable Power of Attorney is a valid means of allowing someone to deal with your affairs, rather than requiring a court-supervised guardianship. The provisions providing for powers of attorney are set forth in Missouri statutes.
The Living Will or Health Care Directive is a document that provides that “if at such time the situation should arise in which there is no reasonable expectation of my recovery from extreme physical or mental disability, I direct that I be allowed to die and not be kept alive by medications, artificial means or heroic measures”. Missouri recognizes this type of document as legally binding.
“Beyond a reasonable hope of recovery” refers to the situation where there is no reasonable hope that an individual will ever recover from their medical condition. There is a distinction made in the health care directive between life sustaining methods and other medical treatment. Life sustaining methods are those that merely prolong the dying process, while other medical treatments are those which could effect a cure or provide comfort or pain management.
The Living Will only governs life sustaining methods. In Missouri, the execution of a Living Will ensures the maker that respiration, resuscitation, and kidney dialysis will be withheld or withdrawn. In addition, nutrition and hydration will be withheld or withdrawn, but only if they are specifically mentioned in writing in the living will.
The living will only acts when an individual cannot. An individual can decide to add or subtract from the provisions of the power of attorney at any time. In addition, the power of attorney may be withdrawn at any time the individual is able to communicate his wish to do so, by any means.
Because of their popularity, forms are readily available online. However, be careful because there are specific requirements for the proper execution of the living will. The best practice is to have your living will prepared by an estate planning professional who will ensure it is executed properly, and that all of your wishes are addressed.
Copies of the living will should be distributed to and discussed with the maker’s physician, family members and clergy. This is one document that does no good locked away in a safe deposit box with other estate planning documents.
A living will is not for everyone. However, if an individual has determined that she does not want her life to be indefinitely prolonged, she should definitely execute a living will instead leaving the decision until the time when it comes up. Without a living will, medical personnel can prevent the family from carrying out the individual’s wishes of refusing or disconnecting life support.
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Commercial solicitations are permitted by the Missouri Rules of
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Missouri Bar or the Supreme Court of Missouri.
Jennifer A. Coke, Attorney at Law, at The Coke Law Firm in St. Louis, MO, serves clients throughout St. Louis City and St. Louis County including Tower Grove, the Central West End, the Loop, and cities of Chesterfield, Creve Coeur, West Port, Ballwin, Kirkwood, Shrewsbury, Glendale, Clayton, Brentwood, University City, Sunset Hills, Webster Groves, Town & Country and many other local municipalities in Missouri.
The Coke Law Firm Jennifer A. Coke, Attorney at Law
This website is intended to provide general information concerning legal issues in the state of Missouri. It is not the purpose of this site to contact individuals known to be in need of legal services of any particular type. Commercial solicitations are permitted by the Missouri Rules of Professional Conduct, but are neither submitted to nor approved by the Missouri Bar or the Supreme Court of Missouri. Further, in offering this information to the public, it is not intended to create, nor does it create, an attorney-client relationship between any individual and The Coke Law Firm, LLC or Jennifer A. Coke, Attorney at Law. An attorney-client relationship is only created upon review of the specific information in a case, acceptance of that case by the attorney, and payment of the required attorney's fees or retainer.