What Happens If You Don’t Have a Power of Attorney in Place?
June 20, 2025
A power of attorney (POA) is a legal document that grants one person (the agent) the authority to act on behalf of another (the principal) in financial, legal, or medical matters. A POA is a critical tool for confirming that your affairs are managed according to your wishes if you become incapacitated or unable to make decisions.
Failing to have a POA in place can lead to significant complications, affecting your finances, healthcare, and family dynamics.
It’s important to know the consequences of not having a power of attorney in Missouri, the legal processes that may ensue, and the broader implications for individuals and their loved ones, so you can have a comprehensive understanding of the risks involved. For guidance or any questions, contact me at Ford, Parshall and Baker, in Columbia, Missouri.
Power of Attorney in Missouri
Before going into the consequences of not having a POA, it’s essential to understand what a POA entails in Missouri. Missouri law recognizes several types of POAs, including:
Durable power of attorney: This remains effective even if the principal becomes incapacitated, making it a vital tool for long-term planning.
Non-durable power of attorney: This is effective only for a specific period or purpose and terminates if the principal becomes incapacitated.
Healthcare power of attorney: This designates an agent to make medical decisions on the principal’s behalf if they can’t do so.
Springing power of attorney: This becomes effective only upon a specific event, such as the principal’s incapacitation.
Missouri Revised Statutes, particularly Chapter 404, govern POAs, outlining the requirements for validity, such as the principal’s capacity to understand the document, proper execution, and notarization in most cases.
A POA allows the principal to specify who will manage their affairs and how, offering flexibility and control. Without this document, however, the state’s default legal processes take over, often leading to outcomes that may not align with the individual’s preferences.
Consequences of Not Having a Power of Attorney
When an individual in Missouri doesn’t have a POA and becomes incapacitated, whether due to illness, injury, or cognitive decline, several significant consequences can arise. These consequences impact financial management, healthcare decisions, and family dynamics, often leading to costly, time-consuming, and emotionally draining processes.
Loss of Control Over Financial and Legal Affairs
Without a durable POA, no one automatically has the authority to manage your financial or legal affairs if you become incapacitated. This includes paying bills, managing bank accounts, filing taxes, or handling real estate transactions.
In Missouri, if no POA is in place, a court may need to appoint a guardian or conservator to handle these matters, as outlined in Missouri Revised Statutes Chapter 475.
Guardianship/conservatorship process: A family member, friend, or interested party must petition the probate court to appoint a guardian (for personal decisions) or conservator (for financial decisions). This process involves:
Filing a petition with the court often requires legal representation.
Providing medical evidence of incapacity, such as evaluations from physicians or psychologists.
Attending a hearing where the court determines the need for guardianship or conservatorship.
The court appoints a guardian or conservator, who may not be the person you would have chosen.
Drawbacks of guardianship/conservatorship:
Cost: The process can be expensive, with attorney fees, court costs, and ongoing reporting requirements often costing thousands of dollars. For example, legal fees for establishing a conservatorship in Missouri can range from $2,000 to $5,000 or more, depending on the intricacy.
Time: The court process can take weeks or months, during which bills may go unpaid, and financial matters may be neglected, potentially leading to penalties, foreclosures, or loss of assets.
Loss of autonomy: The court, not you, decides who manages your affairs. This could result in a stranger, such as a public administrator, being appointed if no suitable family member is available or willing.
Ongoing oversight: Guardians and conservators must submit regular reports to the court, which can be burdensome and invasive, further increasing costs.
For instance, if an individual suffers a stroke and can’t manage their finances, without a POA, their spouse or children may need to seek conservatorship. This could delay access to funds needed for medical care or household expenses, exacerbating financial strain.
Complications in Healthcare Decision-Making
A healthcare POA designates someone to make medical decisions on your behalf if you’re unable to communicate your wishes. Without this document, Missouri law follows a default hierarchy for surrogate decision-makers under Missouri Revised Statutes Section 404.710. This hierarchy typically prioritizes:
A spouse.
Adult children.
Parents.
Siblings.
Other relatives or close friends.
However, this default system has several limitations:
Ambiguity and disputes: If multiple family members (e.g., adult children) have equal authority, disagreements about medical treatment can arise, leading to delays or court intervention. For example, one child may favor aggressive treatment while another prefers palliative care, creating conflict.
No clear surrogate: If no family member is available or willing to act, the court may appoint a guardian to make medical decisions, a process that, as noted, is costly and slow.
Misalignment with wishes: Without a healthcare POA or advance directive (like a living will), your surrogate may not know your preferences regarding life-sustaining treatment, organ donation, or other critical decisions. This can result in medical care that contradicts your values.
For example, if an unmarried individual without a POA is in a coma, their estranged sibling might be tasked with making decisions, even if a close friend better understands their wishes. This misalignment can lead to emotional distress for loved ones and care that doesn’t reflect the individual’s desires.
Family Conflict and Emotional Strain
The absence of a POA can strain family relationships, particularly during a crisis. When no clear agent is designated, family members may disagree about who should take responsibility or what decisions should be made. These disputes can escalate into legal battles, further complicating matters.
Contested guardianships: In Missouri, if multiple family members seek guardianship or conservatorship, the court must resolve the dispute, often requiring hearings and evidence. This can pit relatives against each other, fostering resentment and division.
Emotional toll: The uncertainty and stress of traversing the legal system while a loved one is incapacitated can be overwhelming. Family members may feel guilty, frustrated, or helpless, especially if they believe the individual’s wishes aren’t being honored.
For instance, if a parent without a POA develops dementia, their children may disagree on whether to sell the family home to fund care. Without a designated agent, resolving such disputes may require court intervention, prolonging stress and uncertainty.
Potential for Financial Exploitation
Without a POA, your assets may be vulnerable to mismanagement or exploitation, particularly if a court-appointed conservator isn’t closely monitored. While Missouri courts require conservators to act in the best interest of the incapacitated person, oversight varies, and cases of financial abuse have been reported.
For example, a conservator might mismanage funds or prioritize their own interests, depleting your estate.
Additionally, during the period before a conservator is appointed, no one may have legal authority to protect your assets, leaving them at risk of fraud or neglect. For instance, if you’re unable to monitor your bank accounts, unauthorized transactions could go unnoticed until significant damage is done.
Impact on Minor Children or Dependents
If you have minor children or other dependents and become incapacitated without a POA, the lack of a designated guardian can create further complications.
In Missouri, a POA can include provisions for appointing a temporary guardian for minors or managing funds for their care. Without such provisions, the court may need to appoint a guardian for your children, which may not align with your preferences.
For example, if a single parent becomes incapacitated, the court might place their children with a relative you wouldn’t have chosen, or, in rare cases, with a foster care provider until a permanent solution is determined. This can disrupt the children’s lives and add to the family’s emotional burden.
Missouri-Specific Considerations
Missouri’s laws emphasize the importance of POAs in avoiding guardianship and conservatorship. However, the state’s probate courts are designed to protect incapacitated individuals, which can make the process more rigorous and intrusive. Some Missouri-specific factors include:
Notarization requirements: Missouri law generally requires a POA to be notarized to be valid, particularly for real estate transactions (Missouri Revised Statutes Section 442.360). Without a properly executed POA, your agent may face challenges proving their authority, even if you intended for them to act.
Public administrators: In Missouri, if no suitable family member or friend is available to serve as a guardian or conservator, the court may appoint a county public administrator. These professionals manage the affairs of incapacitated individuals but may not have a personal connection to you, potentially leading to decisions that don’t reflect your values.
Healthcare surrogate rules: Missouri’s healthcare surrogate hierarchy is rigid, and without a POA, you have no control over who makes decisions if family members are unavailable or unwilling.
Contact an Estate Planning Attorney
Not having a power of attorney in place can lead to a cascade of challenges, from financial mismanagement and healthcare disputes to family conflict and loss of autonomy. Missouri’s guardianship and conservatorship processes, while designed to protect incapacitated individuals, are costly, time-consuming, and often fail to reflect the individual’s preferences.
My firm, Ford, Parshall and Baker, is located in Columbia, Missouri, and serves Jefferson City, Fulton, and Boonville. Contact me today for skilled legal assistance.