April 2, 2024

Power of Attorney Explained: Protecting Your Interests

April 2, 2024

A power of attorney is a legal document that grants a designated individual the authority to act on behalf of another person, known as the principal. The appointed person, also known as an agent or attorney-in-fact, is given the power to make important decisions and handle legal and financial matters on behalf of the principal. This arrangement is typically used when the principal cannot make decisions on their own due to physical or mental incapacity.

A power of attorney can also be utilized when the principal cannot be present to handle specific tasks, such as signing documents or managing assets. It is an essential legal tool that ensures the interests and well-being of the principal are protected and allows for the smooth handling of important matters. Checkett, Pauly, Bay & Morgan explain a power of attorney, the different types, and when you might need one to safeguard your interests.

Understanding Power of Attorney Basics

A power of attorney (POA) document allows you to give someone else the power to make decisions and take actions on your behalf. The document specifies the scope of the agent's powers, which can be broad or specific depending on your needs. It's important to know that there are different types of POA designed for different situations and periods of time. To create a POA that accurately reflects your wishes and follows state laws, you should seek legal guidance and carefully consider your options.

The Different Types of Power of Attorney and Their Uses

Several types of power of attorney (POA) exist, each serving different purposes and offering varying levels of control and flexibility.

General Power of Attorney

This Power of Attorney grants broad powers to the agent to act on the principal's behalf in a wide range of legal and financial matters. This type is often used when the principal will be unavailable for an extended period, such as during overseas travel.

Special or Limited Power of Attorney

This type narrows the agent's authority to specific tasks or situations. This might be appropriate for handling a particular transaction, like selling a property, where the principal cannot be present to sign necessary documents.

Durable Power of Attorney

This type is designed to endure the principal's incapacity, ensuring that the agent can continue to make decisions if the principal becomes mentally or physically unable to do so. This is crucial for long-term planning and care arrangements.

Healthcare Power of Attorney

This type assigns decision-making power regarding medical treatments and healthcare decisions to the agent in the event the principal is incapacitated and unable to make those decisions themselves. This POA type is essential for managing healthcare wishes and ensuring they are respected.

When Do You Need a Power of Attorney?

There are specific circumstances under which a power of attorney becomes an essential legal tool for managing your affairs.

When planning for potential future incapacity due to illness or accident, a durable power of attorney for health care and finances ensures your wishes are followed and your affairs are in order.
If you have business or personal matters that require handling while you're abroad or otherwise unavailable, delegating authority through a general or special power of attorney can facilitate these transactions seamlessly.
In the case of advancing age or chronic illnesses, establishing a power of attorney is a proactive step in estate planning, safeguarding against exploitation, and ensuring decisions align with your preferences.

Each of these scenarios underscores the importance of a power of attorney in maintaining control over your personal and financial matters, even when you cannot directly manage them yourself.

How to Set Up a Power of Attorney

Setting up a power of attorney (POA) is a fairly straightforward process, but it requires careful planning and adherence to legal formalities.

Decide which type of POA best suits your needs. Consider factors such as duration, scope, and specific conditions under which it should operate.
Identify a trustworthy individual to serve as your agent, someone who understands your preferences and can act in your best interest.
Consult with an estate planning or elder law attorney. They can help draft a POA document that accurately reflects your wishes and complies with state laws. The document must be signed by you (the principal), witnessed, and, in many states, notarized to be legally valid.
Communicate your plans and provide copies of the POA to relevant parties, such as financial institutions, healthcare providers, and family members, to ensure they recognize the agent's authority when the time comes.
Regularly review and update your POA to ensure it continues to meet your needs and circumstances over time.

Common Misconceptions About Power of Attorney

One widespread misconception about power of attorney (POA) is that it grants the agent the ability to override the principal's wishes. In reality, the agent is legally bound to act in the principal's best interest and according to their explicit instructions.

Another common misunderstanding is that setting up a POA is complex and costly. While it's advisable to seek legal advice to ensure the document is correctly drafted, the process can be straightforward and relatively inexpensive.

Many also believe that a POA is only for older adults or those with significant assets. However, a POA can be a crucial tool for anyone at any stage of life to ensure their affairs are managed according to their wishes should they become unable to do so themselves.

Additionally, there's a notion that a POA is irrevocable. While certain types, like the durable POA, are designed to be enduring, most POAs can be revoked or modified as long as the principal is mentally competent.

These misconceptions often prevent individuals from taking advantage of this valuable legal tool, leaving them unprepared for unexpected life events.

Power of Attorney Lawyers in Joplin, Missouri

Checkett, Pauly, Bay & Morgan are experienced in all aspects of estate planning and elder law. You can call for a free consultation at (417) 358-4049.

October 16, 2023

Melissa Wiatrak

Trusts or Estate Planning: Which One Is Right for You?

October 16, 2023

Melissa Wiatrak

Do you need to plan for your estate but aren't sure if a trust or estate planning is the right choice for you? If so, then you are not alone. Many people are unsure of the differences between these two financial vehicles, and it can be confusing to know which one is best for you. So, if you're considering estate planning or a trust, read on to learn more about the differences and how to decide which one is best for you.

Estate Planning Explained

Estate planning is the process of arranging and organizing your assets, as well as making decisions about what happens to them after you pass away. Estate planning involves creating a comprehensive plan that ensures your wishes are followed, and your loved ones are taken care of. This includes creating necessary legal documents such as a will, power of attorney, and healthcare directives.

These legal documents outline how your assets will be distributed, who will make financial and medical decisions on your behalf, and how your end-of-life wishes will be honored. Estate planning is a crucial step in safeguarding your legacy and making sure that your loved ones are provided for.

What Is a Trust?

A trust is a legal arrangement that involves a third party, the trustee, holding assets on behalf of beneficiaries. Essentially, it's like creating a separate entity to manage and own your assets. When you establish a trust, you transfer ownership of all your assets to the trust, and the trustee is responsible for managing and distributing those assets according to your specified terms.

A trust can be a useful tool for managing and protecting your assets, providing for your loved ones, and reducing taxes. It's essential to understand the complexities of trusts before deciding if it's the right choice for you.

When to Choose Estate Planning Over Trusts

Estate planning is ideal if you have a smaller estate and relatively straightforward wishes for asset distribution. It can also be a good option if you want to keep things simple and avoid the cost and complexity of setting up a trust.

Estate planning is also beneficial if you have minor children. By creating a will, you can name guardians for your children and ensure that their future is protected. A will can also address important matters such as who will manage their inheritance until they come of age.

Furthermore, estate planning is a suitable option if you don't have any concerns about privacy or avoiding probate. With a will, your estate will go through the probate process, which is a legal process to authenticate the will and distribute the assets. If privacy is not a major concern and you are comfortable with this process, then estate planning may be the right choice for you.

When to Choose a Trust

There are certain circumstances where a trust may be the more suitable option. Firstly, if you have a larger estate with complex assets and multiple beneficiaries, a trust can provide more flexibility and control over how your assets are managed and distributed. With a trust, you can specify detailed instructions for when and how your beneficiaries will receive their inheritance.

Additionally, if you want to ensure privacy and avoid the public probate process, a trust can offer more confidentiality. Unlike a will, which becomes public record during probate, a trust allows your assets to be distributed privately and without the involvement of the court.

If you have concerns about protecting assets for future generations or individuals with special needs, a trust can be a valuable tool. Trusts can include provisions to ensure that your assets are managed and protected for the long term, even after you pass away.

If you own property in multiple states or countries, a trust can help simplify the process of transferring and managing those assets, as they are held by the trust and not directly in your name

Ultimately, the decision to choose a trust over estate planning depends on your specific needs and goals. Consulting with a qualified estate planning attorney or financial advisor can help you determine the best option for you and ensure that your wishes are properly carried out.

Estate Planning and Trust Attorneys in Joplin, Missouri

Checkett, Pauly, Bay & Morgan can assist with all aspects of estate planning, including wills, power of attorney, and probate. They can also help you create a trust to protect your assets. You are welcome to call for a free consultation at (417) 358-4049.

August 15, 2023

Melissa Wiatrak

When and Why Should You Consider an Irrevocable Trust?

August 15, 2023

Melissa Wiatrak

If you're considering setting up an estate plan, an irrevocable trust may be an option for you. An irrevocable trust is a legal document that can help you protect your assets and provide benefits for yourself and your loved ones. It is important to understand the details of an irrevocable trust before deciding if it is right for you.

Checkett, Pauly, Bay & Morgan, estate law attorneys serving Joplin, Missouri, discuss when you should consider setting up an irrevocable trust.

What Is an Irrevocable Trust?

An irrevocable trust involves transferring ownership of assets to a trustee, who manages assets on behalf of beneficiaries. Once assets have been transferred, the trust is the legal owner of those assets, and the individual who created the trust (the grantor) no longer has control over them.

The term "irrevocable" means that the trust cannot be revoked or altered by the grantor once it has been established. This means that the grantor cannot take back ownership of the assets transferred to the trust, nor can they change the terms of the trust agreement.

Benefits of an Irrevocable Trust

An irrevocable trust offers several benefits that can make it a preferable option for specific individuals compared to a revocable trust. One of the main advantages is asset protection. Since the assets in the trust are no longer owned by the grantor, they are protected from creditors and lawsuits. This can be valuable for individuals who have significant wealth or who are in professions that are more susceptible to lawsuits, such as doctors or business owners.

Another benefit of this type of trust is that it can help minimize estate taxes. Assets placed in an irrevocable trust are not usually included in the grantor's taxable estate, meaning they may not be subject to estate taxes upon the grantor's death. This can help preserve more wealth to be passed on to beneficiaries.

Furthermore, an irrevocable trust can ensure that assets are distributed according to the grantor's wishes. By placing assets in a trust, the grantor can specify how and when beneficiaries will receive those assets. This can be beneficial in situations where the beneficiary may not have the best ability to manage money responsibly or if there are complex family dynamics.

While an irrevocable trust may offer significant advantages, it is important to consider that once assets are placed in the trust, the grantor no longer has control over them.

Who Might Need an Irrevocable Trust?

Irrevocable trusts are typically used by individuals who want to pass on assets to their beneficiaries while minimizing taxes and protecting those assets from creditors and potential lawsuits. These trusts can also be used to provide for family members who have special needs or to support a charitable organization.

Individuals with a high net worth concerned about estate taxes may also consider setting up an irrevocable trust to ensure that the assets are distributed according to their wishes and that their beneficiaries receive the maximum amount possible.

If you are worried about your beneficiaries’ ability to manage money responsibly or want to protect your assets from potential legal judgments, an irrevocable trust may be a practical solution. Additionally, if you are facing long-term care costs or require assistance with Medicaid planning, an irrevocable trust can help to protect your assets and ensure that you are eligible for government benefits.

Irrevocable Trust Attorneys in Joplin, Missouri

Checkett, Pauly, Bay & Morgan will help you find the best option for your estate plan and advise if an irrevocable trust is right for you. You are welcome to call for a free consultation at (417) 358-4049.

March 14, 2023

Melissa Wiatrak

How Does Probate Work in Missouri?

March 14, 2023

Melissa Wiatrak

After a relative dies, their will goes through the probate process. An experienced probate lawyer can help you navigate this process to help it go faster and make sure you cover all the necessary steps. Checkett, Pauly, Bay & Morgan explain the probate process in Missouri.

What Is Probate?

Probate is simply a way to transfer assets from a person who is deceased to those who are alive. These assets are still in the deceased person’s name and must go through a process before being distributed to those who will inherit them.

Do You Need a Will?

If the deceased person has a valid last will and testament, the probate court will enforce that document and require assets to be passed as directed. A will can help the process move faster.

If the deceased person does not have a valid will, then Missouri law takes over and determines who will be the executor of the estate and what assets will go to what relatives. In other words, everyone has an estate plan. Some are thought out and carefully implemented, while some are provided by state law.

What Is the Probate Process in Missouri?

Missouri probate courts are part of each county’s circuit court. The process is controlled and supervised by the court to administer the deceased person’s affairs and make an orderly distribution of assets.

First, the will must be validated. Then the executor of the will is named. If there is no will, the court will choose someone, usually a relative, to be the executor of the will. That person must notify any creditors, and settle any debts, then notify any beneficiaries of assets.

How Long Is the Probate Process?

Probate administration typically takes six to twelve months, assuming no particular problems with the heirs or with the assets to be administered. The probate administration will commonly cost anywhere from three to six percent of the total estate. Probate can easily be avoided through a simple yet important estate plan designed by attorneys experienced in such matters.

Probate Attorneys in Joplin, Missouri

Checkett, Pauly, Bay & Morgan has administered hundreds of probate cases over the years, and we’re glad to assist you in probate or in avoiding probate. You are welcome to call for a free consultation at (417) 358-4049.

January 3, 2023

Kevin Checkett

estate planning

Guardianships in Missouri- What You Need to Know

January 3, 2023

Kevin Checkett

estate planning

Guardianships are an important aspect of elder law and deal with a very serious issue. Who will care for you if you cannot take care of yourself?

Checkett, Pauly, Bay, and Morgan answer some basic questions about guardianships in Missouri.

What Is a Guardianship?

If you become disabled because of a serious physical or mental condition, someone must have the authority to make the decisions about your medical and financial needs. A guardianship occurs when a trusted person is legally appointed to make these decisions for you and act in your best interests based on your wishes.

Who Needs a Guardianship?

Typically those in need of a guardianship are elderly persons who can no longer take care of their health, financial affairs, or everyday tasks or minors who are unable to be responsible for themselves.

Some of the signs a person needs legal guardianship to include someone who cannot:

Bathe themselves, as well as perform other basic hygiene tasks
Dress themselves and wash their clothing
Manage financial affairs
Take care of their own health
Make sound decisions about health and finances
Communicate clearly

A guardianship is usually a collaboration among the court, the person’s family, and medical providers. In these cases, the legally appointed guardian makes the basic health and financial decisions that the person is no longer able to make.

What Is the Process for Guardianship in Missouri?

The guardianship process involves several people, at least one physician, two attorneys, the next of kin, and a judge who you do not know and who likely does not know you. This is a court case with all records and hearings open to the public.

First, someone hires an attorney to file a petition with the court containing your personal and financial information. The court will hear testimony in a public proceeding to decide who will be the guardian to handle your personal and financial needs. As a general rule, the court requires a certificate of incapacity from a local physician.

How is a Guardian Chosen?

If you have not assigned this role to someone through a power of attorney, a petition must be filed with the local probate court to nominate your guardian. The guardianship petition seeks to have you declared incapacitated so another person can step in and make decisions on your behalf. This person may or may not be who you would otherwise choose.

The guardianship process is in place so that a person’s physical and mental well-being are honored when they are no longer able to make sound decisions. Someone undergoing guardianship could avoid a laborious, after-the-fact process by executing a well-drafted durable power of attorney in Missouri. This happens when you choose who can act on your behalf. The goal of a power of attorney is to designate someone to make vital decisions before you become incapacitated.

What Is the Difference Between a Conservatorship and Guardianship?

In a conservatorship, the conservator only has legal power over the other person’s financial affairs and nothing else. Unlike a guardianship, they are not involved in their ward's personal life, including medical decisions and day-to-day care.

Contact Checkett, Pauly, Bay, and Morgan

Our experienced attorneys have decades of experience dealing with both guardianships and power of attorney and can help navigate your situation. If you are looking for legal advice in Southwest Missouri, contact us today or call us at (417) 358-4049.