404.714. Duties of attorney in fact.

MISSOURI STATUTES AND CODES

404.714. Duties of attorney in fact.

Duties of attorney in fact.

404.714. 1. An attorney in fact who elects to act under a power ofattorney is under a duty to act in the interest of the principal and toavoid conflicts of interest that impair the ability of the attorney in factso to act. A person who is appointed an attorney in fact under a power ofattorney, either durable or not durable, who undertakes to exercise theauthority conferred in the power of attorney, has a fiduciary obligation toexercise the powers conferred in the best interests of the principal, andto avoid self-dealing and conflicts of interest, as in the case of atrustee with respect to the trustee's beneficiary or beneficiaries; and inthe absence of explicit authorization, the attorney in fact shall exercisea high degree of care in maintaining, without modification, any estate planwhich the principal may have in place, including, but not limited to,arrangements made by the principal for disposition of assets at deaththrough beneficiary designations, ownership by joint tenancy or tenancy bythe entirety, trust arrangements or by will or codicil. Unless otherwiseprovided in the power of attorney or in a separate agreement between theprincipal and attorney in fact, an attorney in fact who elects to act shallexercise the authority granted in a power of attorney with that degree ofcare that would be observed by a prudent person dealing with the propertyand conducting the affairs of another, except that all investments made onor after August 28, 1998, shall be in accordance with the provisions of theMissouri prudent investor act, sections 469.900 to 469.913, RSMo. If theattorney in fact has special skills or was appointed attorney in fact onthe basis of representations of special skills or expertise, the attorneyin fact has a duty to use those skills in the principal's behalf.

2. On matters undertaken or to be undertaken in the principal'sbehalf and to the extent reasonably possible under the circumstances, anattorney in fact has a duty to keep in regular contact with the principal,to communicate with the principal and to obtain and follow the instructionsof the principal.

3. If the principal is not available to communicate in person withthe attorney in fact because:

(1) The principal is missing under such circumstances that it is notknown whether the principal is alive or dead; or

(2) The principal is captured, interned, besieged or held hostage orprisoner in a foreign country;

the authority of the attorney in fact under a power of attorney, whetherdurable or not, shall not terminate and the attorney in fact may continueto exercise the authority conferred, faithfully and in the best interestsof the principal, until the principal returns or is publicly declared deadby a governmental agency, domestic or foreign, or is presumed dead becauseof continuous absence of five years as provided in section 472.290, RSMo1986, or a similar law of the place of the last known domicile of theperson whose absence is in question.

4. If, following execution of a power of attorney, the principal isabsent or becomes wholly or partially disabled or incapacitated, or ifthere is a question with regard to the ability or capacity of the principalto give instructions to and supervise the acts and transactions of theattorney in fact, an attorney in fact exercising authority under a power ofattorney, either durable or not durable, may consult with any person orpersons previously designated by the principal for such purpose, and mayalso consult with and obtain information from the principal's spouse,physician, attorney, accountant, any member of the principal's family orother person, corporation or government agency with respect to matters tobe undertaken in the principal's behalf and affecting the principal'spersonal affairs, welfare, family, property and business interests.

5. If, following execution of a durable power of attorney, a courtappoints a legal representative for the principal, the attorney in factshall follow the instructions of the court or of the legal representative,and shall communicate with and be accountable to the principal's guardianon matters affecting the principal's personal welfare and to theprincipal's conservator on matters affecting the principal's property andbusiness interests, to the extent that the responsibilities of the guardianor conservator and the authority of the attorney in fact involve the samesubject matter.

6. The authority of an attorney in fact, under a power of attorneythat is not durable, is suspended during any period that the principal isdisabled or incapacitated to the extent that the principal is unable toreceive or evaluate information or to communicate decisions with respect tothe subject of the power of attorney; and an attorney in fact exercisingauthority under a power of attorney that is not durable shall not act inthe principal's behalf during any period that the attorney in fact knowsthe principal is so disabled or incapacitated.

7. An attorney in fact shall exercise authority granted by theprincipal in accordance with the instrument setting forth the power ofattorney, any modification made therein by the principal or the principal'slegal representative or a court, and the oral and written instructions ofthe principal, or the written instructions of the principal's legalrepresentative or a court.

8. An attorney in fact may be instructed in a power of attorney thatthe authority granted shall not be exercised until, or shall terminate on,the happening of a future event, condition or contingency, as determined ina manner prescribed in the instrument.

9. On the death of the principal, the attorney in fact shall followthe instructions of the court, if any, having jurisdiction over the estateof the principal, or any part thereof, and shall communicate with and beaccountable to the principal's personal representative, or if none, theprincipal's successors; and the attorney in fact shall promptly deliver toand put in the possession and control of the principal's personalrepresentative or successors any property of the principal and copies ofany records of the attorney in fact relating to transactions undertaken inthe principal's behalf that are deemed by the personal representative orthe court to be necessary or helpful in the administration of thedecedent's estate.

10. If an attorney in fact has a property or contract interest in thesubject of the power of attorney or the authority of the attorney in factis 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 wouldconflict or be inconsistent with that interest.