Missouri Revised Statutes













Chapter 404

Transfers to Minors--Personal Custodian and Durable Power of Attorney

←404.712

Section 404.714.1

404.717→

August 28, 2015

Duties of attorney in fact.

404.714. 1. An attorney in fact who elects to act under a power of

attorney is under a duty to act in the interest of the principal and to avoid

conflicts of interest that impair the ability of the attorney in fact so to

act. A person who is appointed an attorney in fact under a power of attorney,

either durable or not durable, who undertakes to exercise the authority

conferred in the power of attorney, has a fiduciary obligation to exercise

the powers conferred in the best interests of the principal, and to avoid

self-dealing and conflicts of interest, as in the case of a trustee with

respect to the trustee's beneficiary or beneficiaries; and in the absence of

explicit authorization, the attorney in fact shall exercise a high degree of

care in maintaining, without modification, any estate plan which the

principal may have in place, including, but not limited to, arrangements made

by the principal for disposition of assets at death through beneficiary

designations, ownership by joint tenancy or tenancy by the entirety, trust

arrangements or by will or codicil. Unless otherwise provided in the power

of attorney or in a separate agreement between the principal and attorney in

fact, an attorney in fact who elects to act shall exercise the authority

granted in a power of attorney with that degree of care that would be

observed by a prudent person dealing with the property and conducting the

affairs of another, except that all investments made on or after August 28,

1998, shall be in accordance with the provisions of the Missouri prudent

investor act, sections 469.900 to 469.913. If the attorney in fact has

special skills or was appointed attorney in fact on the basis of

representations of special skills or expertise, the attorney in fact has a

duty to use those skills in the principal's behalf.



2. On matters undertaken or to be undertaken in the principal's behalf

and to the extent reasonably possible under the circumstances, an attorney in

fact has a duty to keep in regular contact with the principal, to communicate

with the principal and to obtain and follow the instructions of the principal.



3. If the principal is not available to communicate in person with the

attorney in fact because:



(1) The principal is missing under such circumstances that it is not

known whether the principal is alive or dead; or



(2) The principal is captured, interned, besieged or held hostage or

prisoner in a foreign country;

the authority of the attorney in fact under a power of attorney, whether

durable or not, shall not terminate and the attorney in fact may continue to

exercise the authority conferred, faithfully and in the best interests of the

principal, until the principal returns or is publicly declared dead by a

governmental agency, domestic or foreign, or is presumed dead because of

continuous absence of five years as provided in section 472.290, RSMo 1986,

or a similar law of the place of the last known domicile of the person whose

absence is in question.



4. If, following execution of a power of attorney, the principal is

absent or becomes wholly or partially disabled or incapacitated, or if there

is a question with regard to the ability or capacity of the principal to give

instructions to and supervise the acts and transactions of the attorney in

fact, an attorney in fact exercising authority under a power of attorney,

either durable or not durable, may consult with any person or persons

previously designated by the principal for such purpose, and may also consult

with and obtain information from the principal's spouse, physician, attorney,

accountant, any member of the principal's family or other person, corporation

or government agency with respect to matters to be undertaken in the

principal's behalf and affecting the principal's personal affairs, welfare,

family, property and business interests.



5. If, following execution of a durable power of attorney, a court

appoints a legal representative for the principal, the attorney in fact shall

follow the instructions of the court or of the legal representative, and shall

communicate with and be accountable to the principal's guardian on matters

affecting the principal's personal welfare and to the principal's conservator

on matters affecting the principal's property and business interests, to the

extent that the responsibilities of the guardian or conservator and the

authority of the attorney in fact involve the same subject matter.



6. The authority of an attorney in fact, under a power of attorney that

is not durable, is suspended during any period that the principal is disabled

or incapacitated to the extent that the principal is unable to receive or

evaluate information or to communicate decisions with respect to the subject

of the power of attorney; and an attorney in fact exercising authority under

a power of attorney that is not durable shall not act in the principal's

behalf during any period that the attorney in fact knows the principal is so

disabled or incapacitated.



7. An attorney in fact shall exercise authority granted by the principal

in accordance with the instrument setting forth the power of attorney, any

modification made therein by the principal or the principal's legal

representative or a court, and the oral and written instructions of the

principal, or the written instructions of the principal's legal representative

or a court.



8. An attorney in fact may be instructed in a power of attorney that the

authority granted shall not be exercised until, or shall terminate on, the

happening of a future event, condition or contingency, as determined in a

manner prescribed in the instrument.



9. On the death of the principal, the attorney in fact shall follow the

instructions of the court, if any, having jurisdiction over the estate of the

principal, or any part thereof, and shall communicate with and be accountable

to the principal's personal representative, or if none, the principal's

successors; and the attorney in fact shall promptly deliver to and put in the

possession and control of the principal's personal representative or

successors any property of the principal and copies of any records of the

attorney in fact relating to transactions undertaken in the principal's

behalf that are deemed by the personal representative or the court to be

necessary or helpful in the administration of the decedent's estate.



10. If an attorney in fact has a property or contract interest in the

subject of the power of attorney or the authority of the attorney in fact is

otherwise coupled with an interest in a person other than the principal, this

section does not impose any duties on the attorney in fact that would conflict

or be inconsistent with that interest.



(L. 1989 H.B. 145 § 7, A.L. 1997 S.B. 265, A.L. 1998 H.B. 1571, A.L.

2006 S.B. 892)





1998



1998



404.714. 1. An attorney in fact who elects to act under a power of

attorney is under a duty to act in the interest of the principal and to

avoid conflicts of interest that impair the ability of the attorney in fact

so to act. A person who is appointed an attorney in fact under a power of

attorney, either durable or not durable, who undertakes to exercise the

authority conferred in the power of attorney, has a fiduciary obligation to

exercise the powers conferred in the best interests of the principal, and

to avoid self-dealing and conflicts of interest, as in the case of a

trustee with respect to the trustee's beneficiary or beneficiaries; and in

the absence of explicit authorization, the attorney in fact shall exercise

a high degree of care in maintaining, without modification, any estate plan

which the principal may have in place, including, but not limited to,

arrangements made by the principal for disposition of assets at death

through beneficiary designations, ownership by joint tenancy or tenancy by

the entirety, trust arrangements or by will or codicil. Unless otherwise

provided in the power of attorney or in a separate agreement between the

principal and attorney in fact, an attorney in fact who elects to act shall

exercise the authority granted in a power of attorney with that degree of

care that would be observed by a prudent person dealing with the property

and conducting the affairs of another, except that all investments made on

or after August 28, 1998, shall be in accordance with the provisions of the

Missouri prudent investor act, sections 456.900 to 456.913, RSMo. If the

attorney in fact has special skills or was appointed attorney in fact on

the basis of representations of special skills or expertise, the attorney

in fact has a duty to use those skills in the principal's behalf.



2. On matters undertaken or to be undertaken in the principal's

behalf and to the extent reasonably possible under the circumstances, an

attorney in fact has a duty to keep in regular contact with the principal,

to communicate with the principal and to obtain and follow the instructions

of the principal.



3. If the principal is not available to communicate in person with

the attorney in fact because:



(1) The principal is missing under such circumstances that it is not

known whether the principal is alive or dead; or



(2) The principal is captured, interned, besieged or held hostage or

prisoner in a foreign country;





the authority of the attorney in fact under a power of attorney, whether

durable or not, shall not terminate and the attorney in fact may continue

to exercise the authority conferred, faithfully and in the best interests

of the principal, until the principal returns or is publicly declared dead

by a governmental agency, domestic or foreign, or is presumed dead because

of continuous absence of five years as provided in section 472.290, RSMo

1986, or a similar law of the place of the last known domicile of the

person whose absence is in question.



4. If, following execution of a power of attorney, the principal is

absent or becomes wholly or partially disabled or incapacitated, or if

there is a question with regard to the ability or capacity of the principal

to give instructions to and supervise the acts and transactions of the

attorney in fact, an attorney in fact exercising authority under a power of

attorney, either durable or not durable, may consult with any person or

persons previously designated by the principal for such purpose, and may

also consult with and obtain information from the principal's spouse,

physician, attorney, accountant, any member of the principal's family or

other person, corporation or government agency with respect to matters to

be undertaken in the principal's behalf and affecting the principal's

personal affairs, welfare, family, property and business interests.



5. If, following execution of a durable power of attorney, a court

appoints a legal representative for the principal, the attorney in fact

shall follow the instructions of the court or of the legal representative,

and shall communicate with and be accountable to the principal's guardian

on matters affecting the principal's personal welfare and to the

principal's conservator on matters affecting the principal's property and

business interests, to the extent that the responsibilities of the guardian

or conservator and the authority of the attorney in fact involve the same

subject matter.



6. The authority of an attorney in fact, under a power of attorney

that is not durable, is suspended during any period that the principal is

disabled or incapacitated to the extent that the principal is unable to

receive or evaluate information or to communicate decisions with respect to

the subject of the power of attorney; and an attorney in fact exercising

authority under a power of attorney that is not durable shall not act in

the principal's behalf during any period that the attorney in fact knows

the principal is so disabled or incapacitated.



7. An attorney in fact shall exercise authority granted by the

principal in accordance with the instrument setting forth the power of

attorney, any modification made therein by the principal or the principal's

legal representative or a court, and the oral and written instructions of

the principal, or the written instructions of the principal's legal

representative or a court.



8. An attorney in fact may be instructed in a power of attorney that

the authority granted shall not be exercised until, or shall terminate on,

the happening of a future event, condition or contingency, as determined in

a manner prescribed in the instrument.



9. On the death of the principal, the attorney in fact shall follow

the instructions of the court, if any, having jurisdiction over the estate

of the principal, or any part thereof, and shall communicate with and be

accountable to the principal's personal representative, or if none, the

principal's successors; and the attorney in fact shall promptly deliver to

and put in the possession and control of the principal's personal

representative or successors, any property of the principal and copies of

any records of the attorney in fact relating to transactions undertaken in

the principal's behalf that are deemed by the personal representative or

the court to be necessary or helpful in the administration of the

decedent's estate.



10. If an attorney in fact has a property or contract interest in the

subject of the power of attorney or the authority of the attorney in fact

is otherwise coupled with an interest in a person other than the principal,

this section does not impose any duties on the attorney in fact that would

conflict or be inconsistent with that interest.



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