A Missouri power of attorney is a document by which an individual can appoint a person to act as their agent. An agent is one who has authorization to act for another person. A power of attorney can authorize the attorney-in-fact to perform a single or multiple actions and is created in accordance with Section 404.710.1 of the Missouri Revised Statute[1]. One type of a power of attorney concerns health-related decisions[2].

Who May Be Appointed Under a Missouri Power of Attorney?

The agent appointed by a power of attorney must be an adult and is often a close relative, lawyer or other trusted individual. The person appointed does not have to be a resident of the state of Missouri although some individuals are prohibited from acting as a Missouri attorney-in-fact including:

• Licensed Facility: No one connected with a facility licensed by the Missouri Department of Mental Health or Missouri Department of Social Services in which the principal resides unless such person is closely related to the principal.

• Judiciary Personnel: No full-time judge and no clerk of court, unless closely related.

• Qualifications: No one under 18, no person judicially determined to be incapacitated or disabled, and no habitual drunkard.

• Medical personnel: For a health care provider, no one who is the attending physician of the principal and no one who is connected with the health care facility in which the principal is a patient unless such a person is closely related to the principal.

What is a Missouri “Durable” Power of Attorney?

If a principal in an ordinary power of attorney becomes incapacitated, the agent’s power to act for the principal automatically stops. Under Missouri law, a power of attorney with proper wording may be made “durable.” This means that the power of the agent to act on the principal’s behalf would continue even in the event that the principal becomes incapacitated. With a durable power of attorney, even after an incapacitating illness or accident, the named agent could continue to pay bills or otherwise act on behalf of the principal.

Revocation of Missouri Durable Power of Attorney

The death of the principal revokes even a durable power of attorney, except for a third-person relying on the power of attorney who does not know of the death. It is recommended that the revocation be written whenever possible.

Missouri Powers Which Must Be Specifically Listed

In Missouri, certain powers must be specifically stated in the power of attorney in order for the attorney-in-fact to be authorized to perform such acts including:

(1) To execute, amend or revoke any trust agreement;

(2) To fund with the principal’s assets any trust not created by the principal;

(3) To make or revoke a gift of the principal’s property in trust or otherwise;

(4) To disclaim a gift or devise of property to or for the benefit of the principal;

(5) To create or change survivorship interests in the principal’s property or in property in which the principal may have an interest; provided, however, that the inclusion of the authority set out in this paragraph shall not be necessary in order to grant to an attorney-in-fact acting under a power of attorney granting general powers with respect to all lawful subjects and purposes the authority to withdraw funds or other property from any account, contract or other similar arrangement held in the names of the principal and one or more other persons with any financial institution, brokerage company or other depository to the same extent that the principal would be authorized to do if the principal were present, not disabled or incapacitated, and seeking to act in the principal’s own behalf;

(6) To designate or change the designation of beneficiaries to receive any property, benefit or contract right on the principal’s death;

(7) To give or withhold consent to an autopsy or postmortem examination;

(8) To make a gift of, or decline to make a gift of, the principal’s body parts under the Uniform Anatomical Gift Act;

(9) To nominate a guardian or conservator for the principal; and if so stated in the power of attorney, the attorney-in-fact may nominate himself as such;

(10) To give consent to or prohibit any type of health care, medical care, treatment or procedure; or

(11) To designate one or more substitute or successor or additional attorneys-in-fact.

Contact an Experienced Missouri Probate Attorney

A durable power of attorney needs to be very carefully worded and you should seek the assistance of a Missouri probate lawyer. It is also important to review your choice for an agent with a probate attorney to make sure that the selected person is trustworthy and otherwise allowed under the terms of Missouri law. Call Kenneth P. Carp today at (636) 947-3600 to schedule a free consultation to discuss your case.

[1] http://revisor.mo.gov/main/Home.aspx

[2] http://www.mobar.org/uploadedFiles/Home/Publications/Legal_Resources/Durable_Power_of_Attorney/final-dpa-forms-fillable.pdf

Written by kennethpcarplaw@gmail.com