- Limited versus general powers
- Eligibility to act as an agent
- “Durable” powers of attorney
- Powers excluded unless specified
- Prohibited powers
A power of attorney is a legal document in which one person, called a “principal,” appoints another person, called an “agent” or “attorney-in-fact,” to act on behalf of the principal. Actions taken by the agent under a power of attorney are viewed by the law as if they were performed by the principal. A principal who is not disabled or incapacitated can revoke a power of attorney at any time.
Powers of attorney can be an important adjunct in an estate-planning program. A power of attorney can permit an agent to handle the principal’s affairs and arrange for the principal’s care if the principal becomes unable to take care of himself or herself.
A power of attorney can be limited or general. The distinction is:
- A limited power of attorney specifies a single action or limited range of actions the agent is authorized to undertake on behalf of the principal.
- A general power of attorney authorizes the agent to perform any action the principal could have taken, subject to any exceptions specified by the principal or by law.
Missouri power-of-attorney law prohibits some actions by an agent on behalf of a principal, even if the principal wants to authorize such actions. For example, no agent can execute a valid will on behalf of the principal. See the complete list of prohibited actions below.
An agent under a power of attorney can be any person 18 or older and is often a close relative, friend, lawyer or other trusted person. Under Missouri law, the agent does not have to be a resident of Missouri, but the following persons are forbidden by law from acting as agents under a power of attorney:
- Persons connected with a facility licensed by the Missouri Department of Mental Health or the Missouri Department of Social Services in which the principal resides, unless closely related to the principal
- Physicians treating the principal and persons connected with a health care facility in which the principal is a patient, unless closely related to the principal
- Full-time judge and court clerks, unless closely related to the principal
- Persons who are legally incapacitated or disabled
- Habitual drunkards
Under former Missouri law, a power of attorney became invalid if the principal became incapacitated or disabled (see the Guardian and Conservator page for definitions of these terms). Now it is possible under Missouri law to sign a “durable” power of attorney under which the power of the agent to act for the principal continues even if the principal becomes incapacitated or disabled.
A durable power of attorney can be an important adjunct to proper estate planning. For instance, if a principal has a properly prepared durable power of attorney and then suffers a stroke or other incapacitating illness or accident, the agent could continue to act on the principal’s behalf by paying bills, arranging for care, and making health care decisions.
It is possible to write a durable power of attorney so that it will only take effect when the principal becomes incapacitated or disabled or when some other specified event or condition occurs. This is called a “springing” power of attorney because it “springs” into effect only upon the occurrence of the specified event or condition.
While a durable power of attorney can continue in effect after the principal becomes incapacitated or disabled, no power of attorney remains valid after the principal’s death.
Under Missouri law, if a principal wants an agent to be able to exercise certain powers, they must be specified in the power of attorney. Such powers are:
- To execute, amend or revoke any trust agreement
- To fund with the principal’s assets any trust not created by the principal
- To make or revoke a gift or devise of property to or for the benefit of the principal
- To disclaim a gift or devise of property to or for the benefit of the principal
- To create or change survivorship interests in the principal’s property or in property in which the principal may have an interest
- To designate or change the designation of beneficiaries to receive any property, benefit or contract right upon the principal’s death
- To give consent to an autopsy or postmortem examination of the principal
- To make a gift of the principal’s body parts under the Uniform Anatomical Gift Act
- To nominate a guardian or conservator for the principal
- To give consent to or prohibit any type of health care, medical care, treatment or procedure
- To direct the withholding or withdrawal of artificially supplied nutrition or hydration
Under Missouri law, certain powers cannot be granted to an agent by power of attorney under any circumstances. Even if a power of attorney purported to grant these powers, the agent would not have the legal authority to exercise them. Powers that cannot be granted to an agent under Missouri law are:
- To make, publish, declare, amend or revoke a will for the principal
- To make, execute, modify or revoke a living will for the principal
- To require the principal, against his or her will, to take any action or to refrain from taking any action
- To carry out any actions specifically forbidden by the principal while not declared disabled or incapacitated by a court
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