Missouri Durable Power of Attorney

The Missouri Statute Section 404.703 (§ 404.703 R.S.Mo.) defines a Durable power of attorney.  It states that a durable power of attorney is a written power of attorney in which the authority of the attorney in fact does not terminate even when the principal becomes disabled or incapacitated or when a later uncertainty as to whether the principal is dead or alive arises; and which complies with subsection 1 of Section 404.705;(that deals with procedure to create, requirements, effect, of durable power of attorney, along with details about recording and exceptions); or is considered durable under the laws of:  i) the place where it is executed; ii) the place of the residence of the principal when executed; or ii) the place designated in the written power of attorney if that place has a reasonable relationship to the purpose of the instrument.

Section 404.705 of Missouri Statute (§ 404.705 R.S.Mo.), states that the authority granted by a principal to an attorney in fact in a written power of attorney is not terminated in the event the principal becomes wholly or partially disabled or incapacitated or in the event of later uncertainty as to whether the principal is dead or alive if the power of attorney is denominated a “Durable Power of Attorney”; or if the power of attorney includes a provision that states in substance that “This is a durable power of attorney and the authority of my attorney in fact shall not terminate if I become disabled or incapacitated or in the event of later uncertainty as to whether I am dead or alive”; or that “this is a durable power of attorney and the authority of my attorney in fact, when effective, shall not terminate or be void or voidable if I am or become disabled or incapacitated or in the event of later uncertainty as to whether I am dead or alive”; and if the power of attorney is subscribed by the principal, and dated and acknowledged in the manner prescribed by law for conveyances of real estate.

All acts done by the durable power of attorney holder shall inure to the benefit of and shall bind the principal and the principal’s successors in interest, in spite of any disability or incapacity of the principal or any uncertainty as to whether the principal is dead or alive.

It is not required that the durable power of attorney be recorded to be valid and binding between the principal and attorney in fact or between the principal and third persons. Recording may be required for certain transactions affecting real estate.

A durable power of attorney holder does not have a duty to exercise the authority conferred by the durable power of attorney, whether or not the principal has become disabled or incapacitated, is missing or is held in a foreign country, unless he/she has agreed expressly in writing to act for the principal in such circumstances.  An agreement to act on behalf of the principal is enforceable against the attorney as a fiduciary even if there is no consideration to support a contractual obligation to do so.  Acting for the principal in one or more transactions does not obligate an attorney in fact to act for the principal in subsequent transactions.


Inside Missouri Durable Power of Attorney