- January 23, 2024
- Kelvin Birk
- Estate Planning
Imagine that you are dying and being forced to suffer painful and unnecessary medical procedures because you are unable to communicate and stop them from happening. While no one want to contemplate becoming incapacitated or dying, doing proper planning now, while you are of sound mind and able to make good decisions, can prevent major problems should something serious happen to you in the future.
One of the most important ways to prevent such problems is by making a living will, or advance health care directive, which ensures your wishes are honored in the event of serious illness or incapacity. In Missouri, creating a living will involves stating your medical treatment preferences and appointing of a trusted individual to make health care decisions on your behalf if you are no longer able to do so. An experienced estate planning attorney can assist in the process and make sure everything is done correctly so that your living will is valid and no legal obstacles arise to having your wishes carried out.
What is a Living Will?
A living will is a legal document that outlines your preferences regarding medical treatment in case something happens that makes you unable to communicate or make decisions for yourself. This document is especially important in situations where life-sustaining measures or end-of-life care decisions need to be made.
Your living will is not the same as a durable or financial power of attorney, which appoints someone to handle your money, property, and other financial affairs if you are unable to. The person you choose as your health care agent is only authorized to make medical decisions for you. It is a usually a good idea to combine both a living will and health care power of attorney to create a two-part health care directive that contains a . . .
- Living will document that states your wishes and instructions for medical care and end-of-life treatment, and a
- Health care power of attorney document that designates a health care agent to make decisions if you are not able to do so.
Your health care agent is required to follow the instructions spelled out in your living will. These instructions ensure your agent, family members, doctors, and caregivers know what you want if you are unable to communicate for reasons such as being seriously injured or terminally ill, or if you are unconscious, have dementia, or are in any end-of-life stage where you cannot make decisions or speak for yourself.
Having a living will allows others to know whether you do or do not want your life prolonged when your condition is terminal and doing so would just prolong or bring additional pain. Close family members often have difficulty making this decision, and having your wishes in writing takes the burden off them.
How to Prepare a Living Will in Missouri
In Missouri, you may prepare a living will if you are age 18 or older and of sound mind. The law requires that two competent persons 18 or older witness and sign a living will, but those two adults may not be your family members, your beneficiaries, or anyone responsible for your health care expenses. The living will must be in writing, dated, and if not wholly in your handwriting, signed in presence of the 2 adult witnesses. It may also be signed by another person if this is done in your presence and by your expressed direction.
You are responsible to provide notice to your physician of the living will’s existence, and the will should be placed in the medical records of your physician or any health facility where you are a patient.
You do not need an attorney to make a living will, but having a lawyer helps ensure that it is done according to Missouri law, so that it is unlikely to be challenged. When making your living will, you should state your desires regarding the following topics:
- Treatment when at end of life: Specify whether you want life-prolonging treatment, including any medical procedure or intervention which would serve only to artificially prolong the dying process in situations where death will occur within a short time with or without intervention.
- Organ Donation: State whether you want to donate organs and tissues.
- Pain Management: State your preferences for pain relief and comfort care.
The living will becomes operative only when your condition is determined to be terminal or you are unable to make treatment decisions, and it is not operative if you are pregnant.
How to Create a Living Will in Missouri
Creating a living will in Missouri involves taking the following steps:
- Understand Missouri Laws: State laws vary, so make sure you know the specific legal requirements for a living will in Missouri as far as the format, content, and execution of the document are concerned. According to Missouri definitions (459.10), a terminal condition is an incurable or irreversible condition where death will occur within a short time regardless of the application of medical procedures.
- Decide on your preferences: If you were in an end-of-life situation or vegetative state, would you want to be kept on life support; exhaust every possible life-extending treatment, even if futile; be resuscitated or intubated; receive nutrition through means such as a feeding tube? Consider various scenarios and consult with medical professionals and your attorney to better understand what treatment options would mean for you. Decide on whether you want to be an organ donor as well.
- Choose a Health Care Proxy: Pick someone you trust to be your health care proxy to make medical decisions on your behalf if you are unable to do so. Ensure that this person is aware of your wishes and willing to take on the responsibility of carrying them out.
- Draft the Document, writing down your wishes: Missouri has a sample form §459.015(3)) which you can follow, or write your own. Include specific instructions about the medical treatments you want or don’t want in different situations. Follow Missouri legal requirements as to creating, signing, and witnessing the document.
- Discuss contents with relevant parties and distribute copies: Provide copies of your living will to your health care proxy, family members, primary care physician, nursing home or other facility, and any other relevant individuals. Keep the original copy of your living will in a safe and accessible place, and make sure your health care proxy and close family members know its location. Discuss what you want with your proxy, family members, and health care professionals to make sure your wishes are clearly understood in case of emergency.
- Review and update: Periodically review and update your estate plan and living will to ensure that they accurately reflect your current preferences, as life circumstances and medical knowledge may change. You may revoke your living will at any time, as long as you are of sound mind.
Get Help from a Missouri Estate Planning Lawyer
While you are not required to have a lawyer to write a living will, having the services of an experienced estate planning attorney offers several advantages. In addition to ensuring your living will is valid and enforceable, a lawyer can address your individual preferences and tailor your living will accordingly. Your lawyer can inform you of any changes in the law and update your living will so it remains compliant with current regulations.
Attorney Kelvin Birk has lived in Missouri most of his life and understands the laws and needs of the local population. He is a Certified Public Accountant as well as a lawyer, with more than 30 years of experience in accounting, and more than 20 years of legal experience. This combined expertise allows the Birk Law Firm to provide an extremely high level of service for all your estate planning needs.
Call us at 573-332-8585 today for a free consultation to discuss your individual estate planning situation and see how we can help.
Attorney Kelvin Birk
Kelvin Birk is a lawyer as well as a certified public accountant, with more than 30 years of experience in accounting and tax and business consulting, and more than 20 years of experience in numerous legal matters. This combined expertise allows our law firm to provide a level of service above that of other firms. Whatever your legal situation, your attorney at Birk Law Firm can counsel you as to the tax implications. We have experience in providing myriad legal representation services to residents of southeast Missouri and other areas.. [ Attorney Bio ]
