Missouri Law on Power of Attorney

A power of attorney (POA) is a document that gives a designated person the power to act for another person. The person designated is called an agent or an attorney in fact, and the extent of their authority is set out in the document.

Powers of attorney are legal documents with critical ramifications for the people involved. For that reason, they are subject to strict state laws about creation and responsibilities. Missouri law on this subject is found at Missouri Laws Section 404.710.

A power of attorney is a legal document. In the document, one person, termed the principal, grants to another the right to act for them. The person given this authority is called the agent or the attorney in fact.

The range of authority that can be granted in a Missouri power of attorney is broad. It can be a very specific and limited authority or a very broad power to make decisions about the principal's property, finances, investments or medical care.

An example of narrow authority might be a one-time transaction giving the agent authority to sell the principal's car. A broad power of attorney can empower the agent to serve permanently to make all health care decisions for the principal.

Some acts cannot be delegated to a POA agent in Missouri. These include authorizing an agent to make or alter a will or living will on the principal’s behalf.

The choice of an agent, or attorney in fact, under a POA is always very important. Many people select family members or trusted friends, but that is not a legal requirement in Missouri. A principal in Missouri can pick any person of sound mind who is over the age of 18 years to be their agent under a POA with certain exceptions:

• Missouri law forbids a principal from picking as an agent a primary physician or any employee in a health care facility where the principal is a patient.
  

• A Missouri principal cannot name any sitting judge, court clerk or employee of the Missouri Department of Social Services or Department of Mental Health as their agent except when that individual is the principal’s relative.

In general, the principal will select someone they know and trust, usually a close friend or relative.

The subject and scope of potential POAs in Missouri are very broad. POAs are most frequently used to cover decision-making when a principal will not be present to deal with documentation of a sale, or in case of a principal's temporary or permanent illness or disability.

A general power of attorney is often used for a one-time transaction, like selecting someone to sign real estate paperwork on the principal's behalf. Before 1989, Missouri law required a general POA to include specific details regarding any transaction that the POA was being issued to accomplish.

The law has since been relaxed, but experts suggest that all authorizations by the principal be defined precisely in writing to avoid miscommunication and/or abuse.

Regarding POAs prepared in case of a principal's temporary or permanent illness or disability, many people in Missouri use POAs as part of their estate plans. This is in contemplation of the principal's temporary disability or end-of-life issues like loss of mobility or the ability to manage their own financial affairs.

Two types of powers of attorney are especially popular for use in estate plans. They are:

• Financial power of attorney: Authorizes an agent to handle the principal's

business or financial matters.

• Medical

power of attorney

: Authorizes the agent to make medical decisions on the principal's behalf. Missouri terms this a power of attorney for health care.

These types of POAs can be durable or not. If they are not durable, they last only for the period of time that the principal is of sound mind. However, most people who prepare this type of POA do so with a thought to possible future incapacity.

Therefore, the POAs in most estate plans are called "durable" POAs. This means that they remain in effect even if and when the principal becomes incapacitated. This is permitted under Section 404.705 of the Missouri Revised Statutes, which states that a POA can remain in effect when the principal becomes incapacitated if it is a durable POA.

The durable POA is not just a document reserved for sweeping powers when someone nears the end of their life. In fact, they are also useful during temporary issues, permitting the agent to handle day-to-day transactions for the principal during short periods in which the principal is out of the country or ill.

A durable POA can authorize broad authority including paying bills, purchasing and selling real estate, or operating the principal’s business. However, the sweeping power it can confer is subject to some limitations under Missouri law. For example, a principal preparing a durable POA must specifically and clearly authorize their agent to perform certain duties:

• Change trust beneficiaries.
• Change beneficiaries of an insurance policy.
  
• Change ownership or beneficiaries of other property.
  
• Make or change trusts.
  
• Make or change any medical decisions.

Anyone wishing to make a power of attorney in Missouri needs to understand the state's requirements. In order for the POA to be valid in Missouri, the principal must meet certain requirements, namely, they must be of sound mind and they must sign the durable POA in front of a notary.

Since the term "of sound mind" can be interpreted in a number of ways, Missouri has left it to the courts to describe this term's exact contours. In most cases, the person is not near the edge of this mental capacity requirement, but is either clearly of sound mind or not. However, anyone assisting another to make a POA who is unsure of whether this mental capacity requirement is an issue should consult a lawyer.

A principal making a power of attorney that is not durable need not have the document notarized. However, to make a durable power of attorney in Missouri (one that is not extinguished in case of incapacity of the principal), the principal must sign the document in front of a notary public. This can be a good idea for any POA since it provides authentication for the document.