Mental or physical incapacity is something that the average person probably does not spend much time thinking about. However, if a person loses capacity to make legal or health decisions, it is often a life altering event, with far reaching ramifications. Additionally, the way that this situation plays out, in reality, often does not match a person’s vision or understanding of how it should all work.
If you were to become incapacitated, who would be able to deal with government agencies on your behalf, make financial decisions for you, or sign your name to legal documents?
Most people instinctively say “my spouse” or “my adult children.”
However, that is generally not accurate or realistic. The hard legal truth is: no one. Without a written document granting another person authority to make such decisions for you, then there would be no one authorized to make such decisions. Legal decision making would be in limbo.
Unless you have given them prior legal authority through a specific set of documents, your family is legally powerless. They may not be able to access your bank accounts, manage your investments, or make financial or legal decisions for you.
Some people believe a Last Will and Testament may help in this situation. It does not. A Will only activates after you die. An incapacity plan is what protects you, and your assets, while you are living.
At Piatchek Law Firm, we believe a proper estate plan must protect you, not just your assets after you’re gone. A complete incapacity plan is that protection, and it is built on four essential legal documents, as described below.
What Happens if you Don’t Plan: A Missouri Guardianship or Conservatorship
Without a plan, your family’s only option may be to file a lawsuit in the probate court to have you declared legally incompetent. This process, governed by Chapter 475 of the Missouri Revised Statutes, can be utilized to petition a judge to appoint a guardian (to make personal and medical decisions) and a conservator (to control your finances).
A guardianship or conservatorship proceeding is not a simple procedure, and definitely is not the same as filling out a simple form. It is a public, expensive, and sometimes humiliating court proceeding. These are legal proceedings in which a Petition must allege that the person in question has lost their capacity and can no longer handle their own legal affairs, and witnesses may be called, and public testimony given. Guardianship and Conservatorship proceeds are:
- Public: Your private medical condition, personal information, and a complete, detailed inventory of your finances all become a public court record.
- Expensive: Your family must hire an attorney to file the case. The court will appoint another attorney (a guardian ad litem) to represent you. All of these attorneys’ fees, plus court costs, are paid from your assets. It is a costly, draining process.
- Slow: This process can take weeks or months. While your family waits for a court date, your bills may go unpaid, your mortgage could fall into default, and critical medical decisions can be delayed.
- Loss of Control: The judge, not you, decides who is in charge. It may be a family member, but it may not be the one you would have chosen. If the Court finds no suitable family member, it can appoint a professional guardian or Public Administrator—a stranger—to take complete control of your life and your money.
This entire ordeal is almost 100% avoidable with a proactive, attorney-drafted incapacity plan.
The 4 Core Documents of Your Incapacity Plan
An effective plan is not one document, but usually multiple documents that encompass four (4) concepts, that each work together to protect you and your property.
1. The Durable Power of Attorney for Financial Matters
- What It Is: This is a legal document where you appoint a trusted person (your “Agent”) to manage your finances, and all related matters. You should think of “finances” as meaning “all decisions in life that are not health care decisions” – it is very all encompassing. The person you nominate can step into your shoes to pay bills, access bank accounts, manage investments, and handle real estate, if you are unable to do so.
- The Risk of Not Having It: There is no person, including a spouse or child, that has authority to make such decisions for you. Your family may be legally locked out of your accounts. Your mortgage, car payment, and utilities could go unpaid, potentially leading to foreclosure or collections while your family fights in Court for a conservatorship, which can take a long time.
- The DIY Pitfall: A Financial Power of Attorney is the most overlooked document in estate planning. Many people know they need a Will or Trust, or a Health Care POA, but don’t have any idea they even need a Financial Power of Attorney. Additionally, we often see that persons who “do it yourself” select the wrong form, out of state forms, or forms that do not comply with Missouri law and end up being invalid or not honored by financial institutions. Generic online forms are notoriously weak. Banks and financial institutions routinely reject DIY forms for not containing the specific, Missouri required legal language. An invalid document is the same as having no document at all.
2. The Durable Power of Attorney for Health Care Decisions
- What It Is: This document appoints your “Health Care Agent” to make medical decisions for you if you are unable to make or communicate them yourself. This is the person who will speak to doctors and have the final say on your treatment.
- The Risk of NotHaving It: Doctors are left with no clear understanding of what you would want, or who is allowed to make your decisions. In a crisis, this can lead to devastating fights between family members at your bedside. If no one can agree, the hospital’s only recourse could be to petition a court for a guardian, wasting critical time.
- The DIY Pitfall: Vague, “check-the-box” forms cannot account for the nuances of a real medical crisis, and most of the online forms are not Missouri approved forms and may not be consistent with what Missouri law requires. This document must be drafted to clearly state when your agent has authority and what powers they have, ensuring there is no confusion.
3. The Living Will (Advance Health Care Directive)
- What It Is: It is not a Will (Last Will and Testament), but a clear set of instructions to your Health Care Agent. It states your personal wishes regarding end-of-life care, such as the use of life support, feeding tubes, and other medical interventions. This document addresses the not-so-pleasant following question: “If you were at the end of your life, and if the following treatments would not cure you, but could make you live longer – would you want such treatments?”
- The Risk of Not Having It: You place a potential agonizing, uncerainburden on your family, forcing them to guess what you would have wanted during the most stressful moment of their lives. This decision can cause permanent guilt and rifts between loved ones.
- The DIY Pitfall: This is a profoundly personal document. A generic online form may not capture your specific values. An attorney can walk you through these difficult scenarios to ensure your wishes are documented with legal clarity, protecting your agent from doubt. Also, as previously stated, an online document may not be consistent with what Missouri law requires of such documents.
4. The HIPAA Authorization (Medical Records Release)
- What It Is: A simple but absolutely vital document. HIPAA, a federal health care law, makes your medical information private. This form gives your doctors legal permission to speak with your designated agents and family members. How can the person you appoint to make your health care decisions make those decisions, if they cannot receive or review your medical records, or if your doctors cannot disclose information to your decision maker? This release allows your doctors to share information with your decision maker.
- The Risk of Not Having It: Your Health Care Agent cannot make an informed decision if the hospital is legally prohibited from giving them information. Your own agent will be “flying blind,” and your family could be stuck in the waiting room, unable to get updates.
- Include in Power of Attorney. It is generally a smart idea to include HIPAA disclosure provisions in your health care power of attorney document, thus not requiring you to sign an entirely separate document.
Why You Need a Law Firm, Not a Website
Incapacity is far more common than people think. The Social Security Administration estimates that 1 in 4 of today’s 20-year-olds will become disabled before reaching retirement age.
An incapacity plan is not just four separate documents; it is a single, coordinated plan.
Banks and hospitals are trained to find errors in, and often reject, generic or improperly executed documents. A document that fails in the middle of a crisis can be just like having no document at all. An experienced attorney drafts these documents to be robust, specific to Missouri law, and generally accepted by financial and medical institutions.
Build Your Complete Incapacity Plan with Piatchek Law Firm
Don’t wait for a crisis to let your family find out that you did not plan, or find that your do-it-yourself plan had shortcomings. An incapacity plan is one of the most critical legal shields you can create for yourself and your family.
At Piatchek Law Firm, we don’t just sell forms. We provide a comprehensive, coordinated incapacity plan designed to protect you from the public, expensive, and stressful Missouri guardianship and conservatorship process. Additionally, this plan will be just a small part of your overall estate plan. Contact our Springfield, MO office today for a consultation. We can review your existing documents or help you build a complete, new plan from the ground up.
If you have questions about this issue, a estate planning attorney in Springfield, MO can help you understand the legal risks and the best path forward.
