Spring Committee Meetings - Friday, May 9, 2014

ADR Committee / Elder Law Committee Joint Meetng Agenda 

General Information


How to Submit Articles for Future Issues

Please e-mail links or files to Kara Burgess at kara@northlandelderlaw.com.

All submissions will be considered. Submissions should be original; reprints requiring copyright permission should be supplied with the submission to reprint articles in the Elder Law newsletter.  Long scholarly articles are just as welcome as short practical notes.  We also welcome news about our members. 


2013-2014 Officers

Chair:
Samantha Shepherd

Vice Chairs: 
Kara Burgess
Barbara Gilchrist
Connie Haden
Jessica Kruse
Erin Merkle

Council Members:
Steven Cox
Bill Hubbard
Tim Murphy
Reg Turnbull

Liaison to Board of Governors of the Missouri Bar:
Mark Levison

Communicate with Fellow Members Using the Listserve: elder@mobarlist.org


Contact Information

The Missouri Bar
326 Monroe
Jefferson City, MO 65102
Phone: (573) 635-4128
Email: mobar@mobar.org

WD Case Prompts Call for Action

by Reg Turnbull, Chair, Elder Law Committee

Reg TurnbullThe Western District of Missouri issued an opinion on August 6, 2013, In the Estate of Betty Jean Collins, WD 75448, that pointed out that the words we use in the documents that we draft make a difference. By the terms of a healthcare durable power of attorney form provided by the healthcare provider in that case, the authority of the agent was not to take effect until a physician (or two physicians) certifies that the principal is incapacitated.

The principal in the case, Betty Collins, died instantly; thus, the condition precedent to the authority of the agent taking effect as specified in the document never occurred. Claiming that she was following Betty’s wishes, the agent sought to exercise the right of sepulcher found in section 194.119, RSMo., under the healthcare power of attorney to follow Betty’s wishes for cremation. Other family members, however, wanted her body buried in a family burial plot.

The court ruled that Betty’s agent did not have authority to have her cremated under the terms of the document.

Some of our members are calling for legislative changes (I suppose to insulate against drafting errors) while others are encouraging that documents be written differently in (1) the healthcare power of attorney, (2) the financial power of attorney that may not be springing, or (2) a standalone power of attorney with instructions as to what arrangements are to be made of the principal’s body after death.

It is too early to say what will be done; however, this has been a good example of how we must stay on top of developments to always exercise the professional diligence expected of us in preparing documents that accurately and clearly reflect our clients’ intent.

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