A Missouri durable power of attorney form is a legal document that authorizes an individual (the “agent”) to make financial decisions and take actions on behalf of another person (the “principal”) within the state of Missouri.
Once the form is signed in the presence of a notary public, the designated individual entrusted with managing the financial affairs gains the authority to conduct banking, real estate, and other business transactions on behalf of the principal.
Unlike a standard non-durable power of attorney, the durable power of attorney (DPOA) remains effective even if the principal becomes incapacitated and cannot make their own choices.
Laws
- Statute: §§ 404.700 — 404.737
- Presumed Durable: No. § 404.705(1) and (2)
- Signing Requirements: A signature by the principal and the date of signing are required. § 404.705(3)
- Notarization: A durable power of attorney must be notarized in Missouri. § 404.705(3)
- Statutory Form: No.
Definitions
Durable – “Durable power of attorney”, 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 subsection 1 of Section 404.705 or is durable under the laws of any of the following places:
(a) The law of the place where executed;
(b) The law of the place of the residence of the principal when executed; or
(c) The law of a place designated in the written power of attorney if that place has a reasonable relationship to the purpose of the instrument (§ 404.703(4)).
Power of Attorney – “Power of attorney”, a written power of attorney, either durable or not durable (§ 404.703(4)); “Attorney in fact”, an individual or corporation appointed to act as agent of a principal in a written power of attorney (§ 404.703(1)).
Specific Powers and Limitations
Restrictions on Gifts and Transfers
The general authority regarding gifts must be in compliance with § 404.710 to § 404.735, which discusses the durable power of attorney and the powers that can be granted therein.
Types of Gifts:
- Gift splitting among family members to reduce estate taxes.
- Outright gifts to individuals or charities.
- Gifts for the benefit of someone, such as payments into a trust or education fund.
- Annual exclusion gifts under the federal tax code.
Considerations:
- The agent must consider the principal’s usual pattern of giving or intentions.
- Gifts should be made only if they serve the best interest of the principal, taking into account the principal’s estate plan and financial needs.
- The size of the gift should not endanger the principal’s financial stability.
- Consideration of any tax implications for the principal.
Agent’s Authority Limitations:
The authority granted to an agent can be broad or limited, depending on the principal’s wishes. However, certain limitations are commonly observed:
- The agent cannot make decisions after the principal’s death unless specifically allowed (e.g., funeral arrangements).
- An agent cannot vote in public elections on behalf of the principal.
- An agent cannot change the principal’s will.
- The agent must act within the scope of authority granted by the POA document and in the principal’s best interest.
Revocation and Termination
As per § 404.717, A Durable Power of Attorney is revoked or terminated under several circumstances:
- Revocation by the Principal: The principal may revoke at any time when competent to do so, typically by a written document declaring the revocation and properly notifying the agent and any institutions relying on the document.
- Death of the Principal: The DPOA automatically terminates upon the principal’s death.
- Incapacity of the Agent: If the agent becomes unable or unwilling to serve, and no successor agent is named, the document terminates.
- Expiration: If it specifies an expiration date, it terminates on that date unless renewed.
Safekeeping and Registration
Missouri does not have a state-wide registry for Durable Powers of Attorney. However, it is recommended that the document be kept in a safe, accessible place. Copies should be provided to the agent, financial institutions, and others who may need to recognize the agent’s authority.
Additional Resources:
- Missouri Bar Association: Offers resources and information on powers of attorney and estate planning.
- Legal Services of Missouri: Provides legal aid and pro bono services, including assistance with drafting and understanding POA documents.
- Missouri Department of Health & Senior Services: Offers information on legal documents for end-of-life decisions, including durable powers of attorney.
