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Instrument: Durable power of attorney for health care (DPOAHC)
What is it for?
The durable power of attorney for health care (DPOAHC) allows an adult (the “patient”) to designate another adult (the “attorney in fact” or “agent”) to make certain health care decisions for the patient. The patient may also use the DPOAHC to state the patient’s wishes for end-of-life treatment. This portion of a DPOAHC instrument is called a “health care directive” and need not be included in a DPOAHC.
What does it do?
The DPOAHC allows the attorney in fact to make health care decisions for the patient if he or she becomes incapable of making health care decisions. Health care decisions an agent is authorized to make for the patient can include:
- consenting to, prohibiting or withdrawing any type of health care, long-term care, hospice or palliative care, medical care, treatment, or procedure;
- making arrangements for health care services on the patient’s behalf, such as hiring and firing medical personnel;
- transferring the patient into or out of any health care or assisted living or residential care facility or the patient’s home; and
- receiving and accessing the patient’s health care information and medical records.
The attorney in fact’s authority may also include withholding or withdrawing artificially supplied nutrition and hydration, although the patient must specifically grant such authority in the DPOAHC itself. Mo. Ann. Stat. § 404.820.
In making any health care decision for the patient, the attorney in fact has a duty to seek and consider information concerning the patient’s medical diagnosis, the patient’s prognosis and the benefits and burdens of the treatment to the patient. Mo. Ann. Stat. § 404.822.
A copy of a patient’s DPOAHC must be made part of the patient’s medical record as soon as its existence becomes known to the patient’s health care provider and before the provider takes any action based on a decision made by the attorney in fact on the patient’s behalf. Mo. Ann. Stat. § 404.840.
How does one make it?
The same requirements that apply for a general power of attorney in Missouri also apply to the DPOAHC. Mo. Ann. Stat. § 404.810. Thus, a DPOAHC must be in writing, signed and dated by the patient, and also notarized. Mo. Ann. Stat. § 404.705.
When does it come into effect?
Unless the patient specifically states otherwise in the DPOAHC itself, the attorney in fact’s authority becomes effective only when two licensed physicians examine the patient and determine that the patient is “incapacitated.” Mo. Ann. Stat. § 404.825. The physicians, one of whom must must be the patient’s attending physician, must make two findings for the attorney in fact’s authority to take effect: that the patient is both “incapacitated” and that the patient’s incapacity “will continue … for the period of time during which treatment decisions will be required.”
This is called a “certification” of incapacity, and it must be included in the patient’s record. It must also describe the basis for the physicians’ determination and state the expected duration of the patient’s incapacity. This determination must be “periodically reviewed.” The attorney in fact’s authority to make health care decisions ceases “upon certification that the patient is no longer incapacitated,” presumably through a certification process similar to the process described above for determining incapacity.
“Incapacitated” is defined as the inability “to receive and evaluate information or to communicate decisions to such an extent that he lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness or disease is likely to occur.” Mo. Ann. Stat. § 404.805.
How long does it last?
Presumably, the DPOAHC lasts until the patient dies or revokes it.
How does one end it?
The patient may revoke a DPOAHC at any time and “in any manner by which the patient is able to communicate the intent to revoke.” The patient’s revocation becomes effective as soon as this intent is communicated to the attorney in fact or the patient’s attending physician or health care provider. This revocation must be included in the patient’s medical record. Mo. Ann. Stat. § 404.850(1).
The patient may also revoke a DPOAHC by executing a subsequent DPOAHC, unless the prior DPOAHC states otherwise. Mo. Ann. Stat. § 404.850(3).
What does an example look like?
Missouri does not have a statutory DPOAHC form. The Missouri Bar has developed a DPOAHC and health care directive form, along with Frequently Asked Questions, which are available here.
What else should one know?
Creating a DPOAHC cannot be a condition for the provision of health care services or admission to a health care facility. Mo. Ann. Stat. § 404.835.
Last updated March 2022
General
Instrument: Durable power of attorney (DPOA)
What is it for?
The durable power of attorney (DPOA) allows an adult (the “principal”) to appoint one or more other adults or a corporation as “attorney in fact” or “agent,” who can make a limited or broad array of decisions on the principal’s behalf either immediately or upon a future event, such as the principal’s incapacity.
What does it do?
Unless the DPOA limits the scope of the attorney in fact’s authority to specific decisions or acts, the attorney in fact has all rights, powers and authority to act for the principal that the principal would have with respect to his or her own person or property. Mo. Ann. Stat. § 404.710. This kind of DPOA is called a “general” DPOA, while a DPOA that limits the attorney in fact’s authority to specific decisions is called a “limited” DPOA.
Note that for the attorney in fact to make certain kinds of decisions, such as health care decisions, the DPOA must specifically state that the attorney in fact is authorized to make them on the principal’s behalf. These decisions are described at Mo. Ann. Stat. § 404.710(6). Note also that there is a DPOA specific to health care, which is described in the related entry on the durable power of attorney for health care.
The attorney in fact is a fiduciary, which means he or she must act on the principal’s behalf in the principal’s best interest, in good faith, and prudently, while also avoiding conflicts of interest. Mo. Ann. Stat. §§ 404.710(5), 714(1). The attorney in fact also has a duty to “keep in regular contact with the principal, to communicate with the principal and to obtain and follow the instructions of the principal.” Mo. Ann. Stat. § 404.714(2).
An attorney in fact is not obligated to exercise any of his or her powers, unless a duty to act is expressly stated in the DPOA itself. Mo. Ann. Stat. § 404.705(4).
Third parties are not liable for relying in good faith on the attorney in fact’s decision-making authority, and they have no duty to make inquiries as to the DPOA’s validity if they have received a certified copy of the DPOA. Mo. Ann. Stat. § 404.719.
How does one make it?
The DPOA must be in writing, signed and dated by the principal, and also notarized. Mo. Ann. Stat. § 404.705.
In order for the DPOA to be “durable” (that is, in order for the DPOA to remain in effect after the principal becomes “incapacitated”), the DPOA itself must expressly state this intention. Otherwise, the DPOA will not be “durable,” which means it will end when the principal becomes incapacitated.
When does it come into effect?
The attorney in fact’s authority may become effective immediately upon creating the DPOA or upon a future occurrence, such as if the principal becomes “incapacitated.” Mo. Ann. Stat. § 404.714(8). When the attorney in fact’s authority becomes effective upon a future occurrence, it is often called a “springing” DPOA.
For the purposes of Missouri’s DPOA, an “incapacitated person” is defined as someone “who is unable by reason of any physical, mental, or cognitive condition to receive and evaluate information or to communicate decisions to such an extent that the person, even with appropriate services and assistive technology, lacks capacity to manage the person’s essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur.” Mo. Ann. Stat. § 475.010(11).
How long does it last?
The DPOA lasts either until the principal dies or revokes the DPOA, or if the DPOA specifies a specific date or occurrence that will cause it to end. Mo. Ann. Stat. § 404.717(1).
How does one end it?
The principal may revoke the DPOA either orally or in writing. Mo. Ann. Stat. § 404.717(1)(2).
Note that a court’s appointment of a guardian or other legal representative for the principal does not automatically end the attorney in fact’s authority. Mo. Ann. Stat. § 404.714(5).
What does an example look like?
Missouri does not have a statutory DPOA form.
What else should one know?
Missouri’s DPOA is not based on the Uniform Power of Attorney Act.
Last updated March 2022