Effective - 28 Aug 2006
404.714. Duties of attorney in fact. — 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.
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(L. 1989 H.B. 145 § 7, A.L. 1997 S.B. 265, A.L. 1998 H.B. 1571, A.L. 2006 S.B. 892)
Structure Missouri Revised Statutes
Title XXVI - Trade and Commerce
Chapter 404 - Transfers to Minors — Personal Custodian and Durable Power of Attorney
Section 404.005 - Law, how cited.
Section 404.007 - Definitions.
Section 404.014 - Present transfer of property, effect.
Section 404.016 - Future transfers of property are revocable by donor, exception.
Section 404.018 - Custodian and third persons dealing with custodian, powers, duties, immunities.
Section 404.021 - Single custodianship — but custodian may serve more than one minor.
Section 404.023 - Custodians for present transfers of property, who may serve.
Section 404.035 - Qualifications of custodians — transfers to persons not qualified, effect.
Section 404.061 - Exemption of third person from liability.
Section 404.067 - Liability to third persons.
Section 404.077 - Effect on prior existing custodianship.
Section 404.094 - Law of Missouri to apply, when — other state's laws applicable, when.
Section 404.400 - Law, how cited.
Section 404.410 - Definitions.
Section 404.450 - Present transfer, effect.
Section 404.460 - Future transfers of property revocable by donor, exception.
Section 404.470 - Custodian designation by donor on present transfer, who may serve.
Section 404.510 - Court's designation of custodian, when — who may serve, court's powers.
Section 404.520 - Custodian's rights in other property of beneficiary.
Section 404.530 - Qualifications of personal custodians, transfer to person not qualified, effect.
Section 404.600 - Exemption of third person from liability.
Section 404.610 - Liability to third persons.
Section 404.640 - Jurisdiction for transfers to personal custodianship.
Section 404.650 - Law of Missouri to apply, when — other state's laws applicable, when.
Section 404.700 - Law, how cited.
Section 404.703 - Definitions.
Section 404.710 - Power of attorney with general powers.
Section 404.714 - Duties of attorney in fact.
Section 404.719 - Exemption of third persons from liability.
Section 404.721 - Liability as between principal and third person.
Section 404.725 - Compensation of attorney in fact.
Section 404.737 - Exceptions to amendments of durable power of attorney law enacted in 1997.
Section 404.800 - Short title.
Section 404.805 - Definitions.
Section 404.810 - Applicability of general law.
Section 404.815 - Physician, health care facility, not to serve as attorney in fact — exceptions.
Section 404.820 - Withdrawing or withholding treatment, specific authority required — restrictions.
Section 404.822 - Health care decisions, attorney in fact to consider medical diagnosis.
Section 404.825 - Examination of patient required, content.
Section 404.835 - Execution of durable power of attorney not to be required.
Section 404.840 - Medical records to include durable power of attorney, when — effect.
Section 404.845 - Death resulting from withholding treatment, not to be suicide or homicide, when.
Section 404.847 - Prior durable power of attorney remains valid, when.
Section 404.850 - Revocation, procedure, effect.
Section 404.855 - Liability, immunity from, when.
Section 404.865 - Delegation of decision-making authority by attorney in fact prohibited, when.
Section 404.870 - Handicapped or disabled, discrimination against not allowed.
Section 404.872 - Refusal to honor health care decision, discrimination prohibited, when.