Missouri Real Estate Lawyer

A durable power of attorney is a very important power. It allows someone else, called an attorney-in-fact, to act on your behalf, even when you are disabled or incapacitated. The person granting the power is the “principal”, and the attorney-in-fact is an agent of the principal. A principal may appoint as an attorney-in-fact any individual at least 18 years of age, or any other legal entity.  The power can be durable or not durable. A durable power of attorney does not terminate if the principal becomes disabled or incapacitated.

A durable power of attorney is most often granted to a spouse or adult children so that they can manage the financial affairs of the principal when the principal cannot manage his or her own affairs. Absent a durable power of attorney, such affairs cannot typically be managed without a court order.

Creating a Durable Power of Attorney

A Missouri durable power of attorney must be denominated as a “Durable Power of Attorney”. It must state that the power shall not terminate if the principal is disabled or incapacitated, and the principal must sign the durable power of attorney before a notary.

Unless the attorney-in-fact agrees in writing to take certain action on behalf of the principal, the attorney-in-fact is not obligated to exercise any of the powers granted in a durable power of attorney. If an attorney-in-fact does take action pursuant to a durable power of attorney, then the principal is generally bound by such action.

The principal may create multiple durable powers of attorney, and the principal may appoint more than one attorney-in-fact in a durable power of attorney. A durable power of attorney may provide that multiple attorneys-in-fact shall act jointly or that they may act separately. The principal may also appoint attorneys-in-fact in succession so that one attorney-in-fact can replace another one.

A durable power of attorney granting to the attorney-in-fact the power to convey real estate of the principal must be recorded. Likewise, a revocation of the authority to convey real estate must be recorded.

Powers of an Attorney-in Fact

The principal may delegate to an attorney-in-fact general powers, specific powers, or both general and specific powers. The principal may, for example, provide an attorney-in-fact with the general power to act as a fiduciary for the principal as to all lawful subjects and purposes. An attorney-in-fact granted general powers is authorized to perform any action on behalf of the principal, except those listed below. A delegation of specific powers along with a general power as to all subjects and purposes will not limit the general power, except as may be stated in the instrument. A delegation of general powers as to specific subjects or purposes shall limit the general power to such subjects or purposes.

A general power also authorizes the attorney-in-fact to employ and compensate real estate agents, attorneys, brokers, and accountants on behalf of the principal. The attorney-in-fact may even execute documents required by third parties that supplement or add to the powers of the attorney-in-fact. However, no such document may broaden the scope of the authority granted to the attorney-in-fact.

Indemnity of Third Parties

An attorney-in-fact has full discretion to act within the scope of authority granted by the power of attorney. Additionally, an attorney-in-fact with general powers may agree, on behalf of the principal, to indemnify and hold harmless any third party acting in reliance on the power of attorney. The indemnity may include the claims, liabilities, and expenses, including legal expenses, incurred by the third party as a result of acting at the request of the attorney-in-fact. The principal will be bound by such agreement, unless the power to indemnify and hold harmless is specifically denied in the power of attorney. The principal will not be bound to the extent the requested action of the third party was outside the scope of the power of the attorney-in-fact.

Durable Power of Attorney for Real Estate Must be Recorded

A durable power of attorney must be recorded to the extent it grants to an attorney-in-fact the power to convey the real estate of the principal. Additionally, no such power is deemed revoked until it likewise is recorded.

Specific Powers

An attorney-in-fact may perform the following actions only if they are specifically authorized in the power of attorney.

1. Amend or revoke any trust agreement
2. Use assets of the principal to fund any trust not created by the principal
3. To make or revoke any gift by the principal
4. Disclaim: a gift to the principal, any power of appointment granted to the principal, or any interest of the principal in appointive property
5. Create or change survivorship interests in the property of the principal
6. Change or designate beneficiaries of the principal’s property
7. To consent or deny performance of an autopsy
8. Make or prohibit an anatomical gift
9. Nominate a guardian or conservator for the principal
10. Consent or deny any healthcare treatment
11. Designate attorneys in fact
12. Exercise, amend, or revoke any power of appointment granted to the principal

No power of attorney may authorize an attorney-in-fact to perform any of the following actions.

1. Make, amend, or revoke a will for the principal
2. Make, amend, or revoke a healthcare directive for the principal
3. Require the principal to take any action against his or her will
4. Take any action forbidden by the principal

Sewell Law is located in St. Louis, Missouri. We provide legal services in the areas of real estate law, business law, and litigation. Contact Michael Sewell at (314) 942-3232 or at michael@sewelllaw.net.

This article is for general informational purposes only. It does not include all of the laws and regulations related to the topics discussed in this article, and it is not intended as legal, tax, or investment advice. As such, you should not rely in this article alone in making decisions regarding the subject matter discussed in this article.

The choice of a lawyer is an important decision and should not be based solely upon advertisements.

© 2016 Sewell Law, LC

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