Missouri Healthcare Power of Attorney Requirements

Introduction

Key Things to Know

1. 1

   A Missouri Durable Power of Attorney for Health Care names a trusted adult, your attorney in fact or agent, to make health care decisions for you if you become incapacitated; unlike many states, Missouri has you notarize your signature instead of gathering witnesses, and holds your agent's actual decision making authority back until physicians certify that you are incapacitated.

2. 2

   Your attorney in fact's authority does not start the moment you sign. By default, two licensed physicians must examine you and certify in writing that you are incapacitated before your agent can act (Mo. Rev. Stat. Section 404.825); you may authorize a single physician's certification instead, but at least one is always required.

3. 3

   Missouri requires no witnesses for this document. Instead, you sign it, date it, and have your signature acknowledged before a notary public, the same way Missouri law requires for a real estate deed (Section 404.705).

4. 4

   Your attorney in fact cannot be your attending physician, that physician's employee, or an owner, operator, or employee of a health care facility where you live, unless that person is your close relative or shares your religious community (Section 404.815).

5. 5

   Unless you specifically grant it in the document, your attorney in fact does not automatically have authority to withhold or withdraw artificially supplied nutrition or hydration (Section 404.820).

6. 6

   You can revoke the document at any time, in any way you are able to communicate that intent, by telling your attorney in fact, your attending physician, or a health care provider (Section 404.850).

7. 7

   Missouri runs a voluntary Advance Health Care Directives Registry where you may file this document online for a small fee; not filing does not affect its validity (Section 459.250).

8. 8

   This is a different document from Missouri's separate declaration to withhold or withdraw death prolonging procedures, sometimes called a living will, which does require two witnesses if it is not entirely in your own handwriting. Do not confuse the two documents' execution rules.

9. 9

   This is also different from Missouri's general Durable Power of Attorney, which covers property and financial decisions and by law can never be used to make health care decisions for you.

Missouri Requirements for Healthcare Power of Attorney

• Designation of Healthcare Agent (Missouri Revised Statutes § 404.703, § 404.707)

  Section 404.703 defines the core terms used to name an agent ("attorney in fact," the person appointed; "principal," the person appointing) and Section 404.707(1) confirms a principal may appoint one or more attorneys in fact.

• Alternate Healthcare Agent Designation (Missouri Revised Statutes § 404.723)

  The principal may revocably name one or more successor attorneys in fact to act, in the order named, if a prior attorney in fact resigns, dies, becomes incapacitated, is unqualified, or refuses to act (Section 404.723, subsection 2, which is expressly incorporated into the health care act by Section 404.810).

• Agent Authority Scope (Missouri Revised Statutes § 404.710(6)(10))

  A power of attorney may grant the attorney in fact authority "to give consent to or prohibit any type of health care, medical care, treatment or procedure to the extent authorized by sections 404.800 to 404.865" (Section 404.710, subsection 6(10)).

• HIPAA Authorization (45 CFR § 164.508 (Health Insurance Portability and Accountability Act))

  Federal HIPAA regulations govern how the attorney in fact can be authorized to access the principal's protected health information once the document is in effect.

• Effective Date and Durability Provision (Missouri Revised Statutes § 404.705, § 404.825)

  Durability, meaning the document itself is not terminated by later incapacity, comes from Section 404.705 and exists from the moment the document is properly executed. The agent's actual authority to make decisions is a separate, later trigger under Section 404.825: it commences only once physicians certify the patient is incapacitated.

• Definition of Incapacity (Missouri Revised Statutes § 404.805)

  "Incapacitated" means a person unable, by reason of any physical or mental condition, to receive and evaluate information or communicate decisions to such an extent that essential needs such as food, clothing, shelter, or safety cannot be met without serious risk of injury, illness, or disease (Section 404.805(1)(2)).

• End-of-Life Decisions Authority (Missouri Revised Statutes § 404.710(6)(10), § 404.820)

  An attorney in fact's authority to make health care decisions, including decisions about life-sustaining treatment, flows from Section 404.710(6)(10) and Section 404.820. Missouri's separate declaration to withhold or withdraw death prolonging procedures (sometimes called a living will, Sections 459.010 to 459.055) is a different instrument with its own execution rules, executed directly by the patient rather than through an agent.

• Artificial Nutrition and Hydration Provisions (Missouri Revised Statutes § 404.820)

  If a patient wants to give the attorney in fact authority to direct withholding or withdrawal of artificially supplied nutrition or hydration, that authority must be specifically granted in the power of attorney; it is not included by default (Section 404.820, subsection 1). No attorney in fact may, with intent to cause death, authorize withdrawal of nutrition or hydration the patient could ingest through natural means (subsection 2).

• Mental Health Treatment Decisions (Missouri Revised Statutes § 404.710(6)(10))

  Missouri's Durable Power of Attorney for Health Care Act contains no carve-out excluding mental health treatment, inpatient psychiatric admission, or similar decisions from an attorney in fact's authority; the broad grant in Section 404.710(6)(10) covers "any type of health care, medical care, treatment or procedure" the Act authorizes.

• Organ Donation Authorization (Missouri Revised Statutes § 404.710(6)(8), § 194.220, § 194.210-194.294)

  A power of attorney may grant the attorney in fact authority to make or prohibit an anatomical gift of the principal's body under the Revised Uniform Anatomical Gift Act (Section 404.710(6)(8)). The Revised Uniform Anatomical Gift Act (Sections 194.210 to 194.294) defines an 'agent' to include a person authorized to make health care decisions under a power of attorney, and Section 194.220(2)(2) confirms that agent may make an anatomical gift on the donor's behalf unless the power of attorney or another record prohibits it.

• Agent Compensation and Reimbursement (Missouri Revised Statutes § 404.725)

  Unlike a general financial power of attorney, the Durable Power of Attorney for Health Care Act does not automatically grant an attorney in fact a statutory right to compensation or expense reimbursement. A compensation clause can still be included by private agreement between principal and agent.

• Revocation Procedures (Missouri Revised Statutes § 404.850)

  A power of attorney for health care may be revoked at any time and in any manner by which the patient is able to communicate the intent to revoke, effective upon communication to the attorney in fact, the attending physician, or a health care provider; the provider must then record the revocation in the medical record (Section 404.850). Executing a later valid power of attorney for health care revokes a prior one unless stated otherwise.

• No Witness Requirement for This Document (Missouri Revised Statutes § 404.705)

  Missouri's Durable Power of Attorney for Health Care Act has no witness requirement of any kind; the only execution formality is notarized acknowledgment under Section 404.705(1)(3), acknowledged in the manner prescribed by law for conveyances of real estate. Do not confuse this with Missouri's separate death prolonging procedures declaration (Section 459.015), a different document, which does require two witnesses at least eighteen years old if the declaration is not wholly in the declarant's handwriting.

• Notarization Requirement (Missouri Revised Statutes § 404.705)

  To be a valid durable power of attorney, the document must be denominated a "Durable Power of Attorney," include one of two statutory durability sentences, and be subscribed by the principal, dated, and acknowledged in the manner prescribed by law for conveyances of real estate, meaning acknowledged before a notary public or other officer authorized to take real-estate acknowledgments (Section 404.705(1)(3)).

• Patient Self-Determination Act Compliance (42 U.S.C. § 1395cc(f) (Patient Self-Determination Act))

  Facilities that participate in Medicare and Medicaid must inform patients of their rights under state law to make advance directives, including a Durable Power of Attorney for Health Care.

• Guardianship Provisions (Missouri Revised Statutes § 475.050)

  Before appointing any other eligible person as guardian or conservator, a Missouri court must consider, in order of priority, any eligible person nominated in a durable power of attorney executed before the incapacity began (Section 475.050, subsection 1(2)).

• Out-of-State Recognition (Missouri Revised Statutes § 404.730)

  While Missouri law generally recognizes powers of attorney valid in other states under Section 404.730, the Durable Power of Attorney for Health Care Act does not explicitly adopt this provision for health care instruments specifically.

• Integration with Advance Directives (Missouri Revised Statutes § 459.250)

  The two documents are treated together in the Advance Health Care Directives Registry (Section 459.250), which defines "advance health care directive" to expressly cover both "a power of attorney for health care or a declaration." Otherwise, the two instruments are legally independent documents with different execution rules.