Protecting Yourself, Your Business, and Your Loved Ones: Power of Attorney

It is just an average day, nothing seems out of place, until…the phone rings. It is the phone call that you never want to receive but dread receiving every day. Your spouse, child, or loved one is in the hospital and is unconscious. Arriving at the hospital you begin to feel the adrenaline running through your body. Then the doctor asks whether you have a power of attorney for health care decisions for your loved one. You answer “No” and now the doctor will not discuss with you what is happening.

Most individuals do not think of obtaining a power of attorney until they are married, until they have children, until a medical condition exists, or until it is too late. At these points in someone’s life, there is a belief that this document is necessary. Unfortunately, the inability to make your own decisions can happen at any time. Without a power of attorney, no one – not your spouse, parent, or adult child – has an automatic right to your medical records or can make medical or financial decisions. Your business partner has no automatic right to make business decisions on your behalf. When your child reaches the age of majority (which is 18 in Missouri), you can no longer automatically obtain their medical records or make decisions for them about their healthcare or financial needs.

If you do not have a power of attorney, anyone, including a parent, who wants to make healthcare or financial decisions on your behalf must file for a guardianship (for all care and placement decisions) and/or conservatorship (to manage assets) with the probate court. The appointment of the guardian/conservator could take months to complete, which means that no one can act on your behalf personally or in relation to your business. Once the court appoints the guardian/conservator, decisions made on your behalf are under the scrutiny of the court. This scrutiny also includes whether your business remains open or not.

What happens if you will be in the hospital for an extended stay and your business needs to pay its employees or sign a contract for a vendor? Who is best suited to make these decisions on behalf of a business owner? As a society, we do not like to discuss the possibility of losing control of our own decisions. However, failing to carefully plan could leave the decisions in the hands of someone you would never have considered and who knows nothing about the day-to-day affairs of the business.

The hope is that no one will ever need to use the powers of attorney, but no one can predict what may happen one day to the next. You should have a durable power of attorney to cover financial and legal matters and a durable power of attorney for healthcare decisions. By having these documents, you, and not the court, can decide who is appropriate to manage your affairs, including your business.

Posted by Attorney Tabitha L. Atwell. Atwell focuses her practice on estate and tax planning, probate, and trust administration. As an attorney, Tabitha assists both families and individuals with proactively planning for incapacity, individuals with Alzheimer’s disease and other forms of dementia, and individuals with disabilities.

Published in the January 2023 St. Louis Small Business Monthly.

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