Power of Attorney and Health Care – General – Missouri
An “attorney in fact” is an individual or corporation appointed to act as agent of a principal in a written power of attorney.
A person who is “disabled” or “incapacitated” is a person who is wholly or partially disabled or incapacitated as defined in section 475.010, RSMo, or in a similar law of the place having jurisdiction of the person whose capacity is in question.
A “durable power of attorney”, is a written power of attorney in which the authority of the attorney in fact does not terminate in the event the principal becomes disabled or incapacitated or in the event of later uncertainty as to whether the principal is dead or alive and which complies with applicable Missouri law.
A “legal representative” a decedent’s personal representative, a guardian of a person or the conservator of the estate of a person, whether denominated as general, limited or temporary, or a person legally authorized to perform substantially the same functions;
A “power of attorney” is a written power of attorney, either durable or not durable.
Durable Power of Attorney
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”;
The power of attorney includes a provision that states in substance one of the following:
“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
“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
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 an attorney in fact pursuant to a durable power of attorney inure to the benefit of and bind the principal and the principal’s successors in interest, notwithstanding any disability or incapacity of the principal or any uncertainty as to whether the principal is dead or alive.
A durable power of attorney does not have to be recorded to be valid and binding between the principal and attorney in fact or between the principal and third persons, except to the extent that recording may be required for transactions affecting real estate under sections 442.360 and 442.370, RSMo.
A person who is appointed an attorney in fact under a durable power of attorney has no duty to exercise the authority conferred in the power of attorney unless the attorney in fact 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 in fact as a fiduciary without regard to whether there is any 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.
A principal may appoint more than one attorney in fact in one or more powers of attorney and may provide that the authority conferred on two or more attorneys in fact shall or may be exercised either jointly or severally or in a manner, with such priority and with respect to such subjects as is provided in the power of attorney.
Any person, other than a person who is disqualified from being appointed a guardian or conservator of the principal under subsection 2 of section 475.055, RSMo, is qualified to be designated an attorney in fact under a durable power of attorney.
A principal may delegate to an attorney in fact in a power of attorney general powers to act in a fiduciary capacity on the principal’s behalf with respect to all lawful subjects and purposes or with respect to one or more express subjects or purposes. A power of attorney with general powers may be durable or not durable.
An attorney in fact must exercise the powers conferred according to the principal’s instructions, in the principal’s best interest, in good faith, prudently and in accordance with §§ 404.712 and 404.714.
No power of attorney, whether durable or not durable, and whether or not it delegates general powers, may delegate or grant power or authority to an attorney in fact to do or carry out any of the following actions for the principal:
To make, publish, declare, amend or revoke a will for the principal;
To make, execute, modify or revoke a living will declaration for the principal;
To require the principal, against his or her will, to take any action or to refrain from taking any action; or
To carry out any actions specifically forbidden by the principal while not under any disability or incapacity.
“It is the policy of [Missouri] that an attorney in fact acting pursuant to the provisions of a power of attorney granting general powers shall be accorded the same rights and privileges with respect to the personal welfare, property and business interests of the principal, and if the power of attorney enumerates some express subjects or purposes, with respect to those subjects or purposes, as if the principal himself or herself were personally present and acting or seeking to act; and any provision of law and any purported waiver, consent or agreement executed or granted by the principal to the contrary shall be void and unenforceable.”
Modification and Termination
Between the principal and attorney in fact, or successor attorney in fact, and any agents appointed by either of them, unless the power of attorney is coupled with an interest, the authority granted in a power of attorney shall be modified or terminated as follows:
On the date shown in the power of attorney and in accordance with the express provisions of the power of attorney;
When the principal, orally or in writing, or the principal’s legal representative with approval of the court in writing informs the attorney in fact or successor that the power of attorney is modified or terminated, or when and under what circumstances it is modified or terminated;
When a written notice of modification or termination of the power of attorney is filed by the principal or the principal’s legal representative for record in the office of the recorder of deeds in the city or county of the principal’s residence or, if the principal is a nonresident of the state, in the city or county of the residence of the attorney in fact last known to the principal, or in the city or county in which is located any property specifically referred to in the power of attorney;
On the death of the principal;
When the attorney in fact under a durable power of attorney is not qualified to act for the principal;
On the filing of any action for divorce or dissolution of the marriage of the principal and the principal’s attorney in fact who were married to each other at or subsequent to the time the power of attorney was created, unless the power of attorney provides otherwise.
Between the principal and attorney in fact, or successor, acts and transactions of the attorney in fact or successor undertaken in good faith and without actual knowledge of the death of the principal or without actual knowledge that the authority granted in the power of attorney has been suspended, modified or terminated, relieves the attorney in fact or successor from liability to the principal and the principal’s successors in interest.
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