A common mistake is to assume that estate planning is solely about writing wills and trusts to make sure that your property is distributed according to your wishes after your death. Incapacity planning is often overlooked, but it can be essential because it addresses what happens if you are unable to make medical decisions or handle your financial affairs because of an injury or medical condition.
In Missouri, your wishes regarding your medical treatment may be made known by executing an advance directive. This is typically a set of documents that express your healthcare wishes.
A healthcare directive is very similar to a living will. However, under Missouri law, living wills take effect only when your death can no longer be significantly delayed by treatment. Healthcare directives, in contrast, become effective as soon as you are unable to speak for yourself due to a terminal medical condition or unconsciousness.
Healthcare directives allow you to express which kinds of medical treatments should be withheld. For example, you may specify that you would not want surgery, respirators, or other life-prolonging procedures to be used if there is not a reasonable expectation of your recovery. Once you have executed a healthcare directive, you have the option to change it or revoke it at any time.
Healthcare Power of Attorney
Because a healthcare directive cannot address every situation that might arise, you also need a healthcare power of attorney. This document allows you to appoint an agent to make healthcare decisions on your behalf should you become unable to communicate your healthcare wishes yourself. You can specify that your agent must make healthcare wishes according to what is stated in your healthcare directive. If your healthcare directive does not address a particular situation, you can direct your agent to decide based on the preferences you have expressed to that person (or based on his or her knowledge of your wishes).
In addition to making healthcare decisions on your behalf, your agent can be empowered to:
- Check you in and out of hospitals and medical facilities
- Hire and fire medical staff responsible for your care
- Receive information concerning your care
- Review your medical records
Durable Power of Attorney
If you become incapacitated, meeting your financial needs can be delegated to an agent whom you would have designated through what is known as a durable power of attorney. Although you have complete control over which matters your agent has your permission to manage, most people executing this type of document empower their agents to pay their taxes and bills and to manage their financial affairs (stocks, bank accounts, etc.) on their behalf.
Speak to an Attorney
To ensure that nothing is overlooked in planning for the possibility of incapacity, you might wish to consult an experienced estate planning attorney at TuckerAllen. We can help ensure that the appropriate documents are in place to address your healthcare and financial affairs if necessary.