Power of attorney, health care directive and guardianship in Missouri

Financial power of attorney in Missouri

Law and official form

Law

Durable Power of Attorney Law of Missouri

Uniform Power of Attorney Act

No

Law: RSMo §§ 404.700-404.737

Signing rules

How to sign

For a power of attorney to be durable it must be called a 'Durable Power of Attorney', include a statement in substance like the one in the law that the attorney in fact's authority does not end if you become disabled or incapacitated, and be signed, dated and acknowledged (notarized) the way a real estate deed is. It does not have to be recorded to be valid, except where recording is needed for real estate transactions.

Who signs

Subscribed (signed) and dated by you.

Notary

Required

Witnesses

None required

Agent's acknowledgment

No signed acceptance is required. An attorney in fact has no duty to act unless they expressly agreed in writing to act for you.

Law: RSMo 404.705.4

Law: RSMo § 404.705

Durable and springing

Is it durable?

A power of attorney is durable only if it is titled 'Durable Power of Attorney', contains the durability statement required by RSMo 404.705.1, and is signed, dated and notarized. Otherwise, the attorney in fact's authority is suspended while you are disabled or incapacitated.

Law: RSMo 404.705, 404.714.6

Durable unless it says otherwise?

No: it continues after incapacity only if it says so.

Starting later (springing)

The power of attorney can say that the authority will not be used until, or will end on, a future event, condition or contingency, determined in the way the document prescribes.

Law: RSMo 404.714.8

What an agent can and cannot do

Needs express permission

• Execute, amend or revoke a trust agreement
• Fund a trust you did not create with your assets
• Make or revoke a gift of your property
• Disclaim a gift or inheritance, or disclaim or release a power of appointment
• Create or change survivorship interests in your property (bank withdrawals from joint accounts are allowed under a general power)
• Designate or change beneficiaries who receive property at your death
• Consent to or refuse an autopsy
• Make or refuse an anatomical gift, or exercise the right of sepulcher
• Nominate a guardian or conservator for you
• Make health care decisions (under the Durable Power of Attorney for Health Care Act)
• Name substitute, successor or additional attorneys in fact
• Exercise, release or amend a power of appointment

No power of attorney can

No power of attorney can let the attorney in fact make, amend or revoke your will; make, change or revoke your living will declaration; force you to do or not do something against your will; or do anything you specifically forbade while you had capacity.

Law: RSMo 404.710.7

Law: RSMo § 404.710.6

Agent duties, pay and court review

Agent duties

• Act in your best interests, avoid self-dealing and conflicts of interest (a fiduciary duty like a trustee's)
• Keep your estate plan in place unless explicitly authorized to change it
• Use the care of a prudent person handling another's affairs; invest under the Missouri prudent investor act
• Keep in regular contact with you and follow your instructions where reasonably possible
• Keep your property and accounts separate and clearly identified as yours
• Follow court or guardian/conservator instructions if a legal representative is appointed

Agent pay

Subject to the power of attorney and any separate agreement, the attorney in fact is entitled to reasonable compensation and reimbursement of reasonable expenses.

Law: RSMo 404.725

Asking a court to review an agent

You can ask the probate division of the circuit court for an accounting. If you are disabled, incapacitated or deceased, your legal representative, an adult family member or anyone interested in your welfare can ask. The court can order, limit, suspend or end the power of attorney, remove the attorney in fact, or appoint a successor.

Law: RSMo 404.727, 404.731

Law: RSMo §§ 404.712, 404.714

When it ends and how to revoke it

It ends when

• The date or terms stated in the power of attorney
• You tell the attorney in fact, orally or in writing, that it is changed or ended
• A written notice of termination is recorded with the recorder of deeds as the law describes
• Your death (with limited exceptions for autopsy and anatomical gift powers)
• The attorney in fact is not qualified to act
• Filing of a divorce or dissolution action between you and your spouse-attorney in fact, unless the document says otherwise
• Your disability or incapacity suspends a power of attorney that is not durable

Divorce ends a spouse's authority

Yes · Divorce rules in Missouri (Divorce Law Map)

How to revoke

You can end or change your power of attorney by telling the attorney in fact, orally or in writing. You can also file a written notice of modification or termination for record with the recorder of deeds in the city or county where you live (or, as the law specifies, where the attorney in fact lives if you live out of state, or where property named in the power of attorney is located).

Law: RSMo 404.717.1

Telling others

A third person is bound by the termination only once it has actual knowledge of your death or of the termination. A business may set by contract how it must be notified. An attorney in fact who acts in good faith without actual knowledge of the termination (or constructive notice from a recorded notice) is not liable to you.

Law: RSMo 404.721; RSMo 404.710.10; RSMo 404.717.3

If it was recorded

A written notice of modification or termination can be filed for record in the recorder of deeds office of the city or county where you live, where the attorney in fact lives (if you live out of state), or where property named in the power of attorney is located.

Law: RSMo 404.717.1(3)

Law: RSMo §§ 404.714.6, 404.717.1; RSMo §§ 404.717, 404.719, 404.721

Banks, other states and real estate

Banks and other businesses

A third person acting in good faith may rely on a power of attorney without liability and has no duty to check many listed matters. It may ask for signature specimens and other reasonable information, and may require indemnity; a bond cannot be required for a durable power of attorney when the principal or attorney in fact has lived in Missouri at least two years and the attorney in fact gives a satisfactory indemnity agreement. State policy is that an attorney in fact with general powers be treated as if you were present. The law does not set a deadline or penalty for refusing a power of attorney.

Law: RSMo 404.719; RSMo 404.719.4; RSMo 404.710.9

Signed in another state

A durable power of attorney made under the law of another state is governed by that state's law and, if durable where signed, is durable and can be used in Missouri.

Law: RSMo 404.703(4), 404.730.5, 404.730.6

Real estate

A durable power of attorney does not have to be recorded to be valid, except where recording is required for real estate transactions under RSMo 442.360 and 442.370.

Law: RSMo 404.705.3

Health care directive in Missouri

The document and its form

Document

Durable power of attorney for health care; separately, a declaration (living will)

Official form

Declaration (sample living will form in RSMo 459.015.3)Published by Missouri Revisor of Statutes (official statute text; the sample form is printed in the section)Version: Statutory sample form, RSMo 459.015 (effective August 28, 1985)

You do not have to use it.

Living will

Declaration

The living will is a separate document.

A competent adult can sign a declaration directing that death-prolonging procedures be withheld or withdrawn if they have a terminal condition and cannot make decisions. It must be in writing, signed (or signed for you in your presence at your direction) and dated; if not wholly in your handwriting, it must be signed in front of two or more witnesses age 18 or older, neither of whom signed for you. Death-prolonging procedures do not include comfort care or nutrition and hydration. You must make sure your doctor knows about it. It has no effect while you are pregnant.

Living will

Law: RSMo § 459.015.3; RSMo §§ 459.010, 459.015, 459.025

Signing rules

How to sign

Sign and date the durable power of attorney for health care and have it acknowledged before a notary. A living will declaration has a different rule: if it is not entirely in your handwriting, sign it in front of two adult witnesses; a notary is not required for the declaration.

Who signs

A durable power of attorney for health care must meet the same rules as a financial durable power of attorney: titled 'Durable Power of Attorney', with the durability statement, signed and dated by you.

Notary

Required

Witnesses

None required

Nursing facilities and special settings

Your attending physician or their employee, or an owner, operator or employee of a health care facility where you live, cannot be your attorney in fact unless related to you within the second degree or a member of the same religious community.

Law: RSMo 404.815

Law: RSMo §§ 404.705, 404.810, 459.015

Who can be your agent and what the agent can do

Who cannot be your agent

Your attending physician or their employee, or an owner, operator or employee of a health care facility where you live, cannot serve unless related to you within the second degree or a member of the same religious community. A person disqualified from being your guardian or conservator under RSMo 475.055.2 cannot be your attorney in fact under a durable power of attorney.

Law: RSMo 404.815; RSMo 404.707.2

When the agent starts

Unless you expressly say otherwise, the attorney in fact's health care powers start when two licensed physicians (one may be your attending physician) certify after examining you that you are incapacitated and will remain so while decisions are needed, and stop when you are certified no longer incapacitated. At least one physician's certification is always required.

Law: RSMo 404.825

Decisions an agent cannot make

The attorney in fact can direct withholding or withdrawal of artificially supplied nutrition and hydration only if you specifically granted that power in the document, and never food or water you can take by natural means with intent to cause death. The attorney in fact cannot delegate health care decisions unless you explicitly allowed it. Providers may refuse decisions contrary to religious or moral convictions but must not block a transfer.

Law: RSMo 404.820; RSMo 404.865; RSMo 404.830

Revoking and conflicting documents

Revoking your agent

You can revoke a power of attorney for health care at any time and in any manner by which you can communicate your intent. It takes effect when you tell the attorney in fact, your attending physician or another health care provider. Signing a new valid health care power of attorney revokes earlier ones unless it says otherwise.

Law: RSMo 404.850

Revoking your instructions

You can revoke a declaration at any time and in any manner you can communicate, regardless of your mental or physical condition.

Law: RSMo 459.020

Telling others

A physician or provider who learns of a revocation must put it in your medical record. A person is not liable for failing to act on a declaration revocation unless it is in your record or they actually know of it.

Law: RSMo 404.850.2, 459.020.2; RSMo 459.020.3

Divorce ends a spouse's authority

Yes · Divorce rules in Missouri (Divorce Law Map)

Conflicting documents

Unless the document says otherwise, signing a new valid power of attorney for health care revokes earlier ones. Your own current decisions always override your declaration.

Law: RSMo 404.850.3; RSMo 459.025

Law: RSMo §§ 404.717.1(6), 404.810, 404.850, 459.020

If you have no directive

Who decides without a directive

Missouri's health care decision statutes do not set a general priority list of family members who may decide for an adult who has no durable power of attorney for health care and no guardian.

Other states, registry and medical orders

Signed in another state

Missouri's definition of a durable power of attorney, which also applies to health care powers, includes one that is durable under the law of the place where it was signed, where you lived when you signed it, or a place named in it that has a reasonable relationship to it.

Law: RSMo 404.703(4), 404.805.2

Guardianship and conservatorship in Missouri

What guardianship or conservatorship is

What it is called

Guardian or limited guardian (of an incapacitated person); conservator or limited conservator (of a disabled person's estate); emergency guardian ad litem or conservator ad litem

When a court may appoint one

An 'incapacitated person' cannot receive and evaluate information or communicate decisions to such an extent that, even with appropriate services and assistive technology, they cannot meet essential requirements for food, clothing, shelter, safety or other care, so that serious physical injury, illness or disease is likely. The petitioner must prove incapacity or disability by clear and convincing evidence. Before appointing, the court must consider less restrictive alternatives, including a durable power of attorney, a trust, a representative payee, supported decision-making agreements or supportive services, assistive technology, and limited guardianship, and must apply the least restrictive alternative principle.

Law: RSMo 475.010; RSMo 475.075, 475.079

Kinds

• Full guardian or limited guardian of the person
• Full conservator or limited conservator of the estate
• Emergency guardian ad litem or conservator ad litem (up to 90 days)
• Standby guardian
• Court-appointed successor attorney in fact under an existing durable power of attorney

Law: RSMo §§ 475.010, 475.050, 475.060, 475.075, 475.078, 475.079

Who can ask, which court and your own choice

Who may ask

Any person may petition for the appointment of themselves or another qualified person as guardian or limited guardian of an incapacitated person.

Law: RSMo 475.060.2

Court

Probate division of the circuit court.

Choosing your own

You can nominate a guardian or conservator in a durable power of attorney, or in a writing signed by you and two witnesses before incapacity; the court must follow your most recent valid nomination except for good cause. A power of attorney can also authorize the attorney in fact to nominate a guardian or conservator.

Law: RSMo 475.050; RSMo 404.710.6(9)

Effect on a power of attorney

If a guardian or conservator is appointed, the attorney in fact must follow the court's or legal representative's instructions and be accountable to them on overlapping matters; the court may set out how they coordinate. If your durable power of attorney is adequate but no attorney in fact can serve, the court may appoint a successor attorney in fact instead of a guardian or conservator.

Law: RSMo 404.714.5, 404.731.3; RSMo 404.723.4

Other options and where to report abuse

Less restrictive options

• Durable power of attorney: An attorney in fact named before the petition was filed; the court must consider it before appointing a guardian or conservator.
• Trust managed by a trustee: A trustee manages the person's beneficial interests in a trust.
• Representative payee: A payee manages the person's public benefits.
• Supported decision-making agreements and supportive services: Protective or supportive services or arrangements from individuals or agencies, including supported decision-making agreements.
• Services or assistive technology; limited guardianship or conservatorship: Appropriate services or technology, or a limited appointment, instead of full guardianship.

Report abuse or exploitation

Missouri Department of Health and Senior Services - Adult Abuse and Neglect Hotline · 1-800-392-0210

Call or text the Eldercare Locator to find your local adult protective services: 1-800-677-1116 · eldercare.acl.gov

Good to know in Missouri

• A Missouri power of attorney is NOT durable unless it is titled 'Durable Power of Attorney', contains the statutory durability statement and is notarized.

  Law: RSMo 404.705

• A health care attorney in fact can stop tube feeding or IV fluids only if you specifically granted that power.

  Law: RSMo 404.820

• Unless you say otherwise, two physicians must certify your incapacity before your health care attorney in fact can act.

  Law: RSMo 404.825

• Filing for divorce ends your spouse's authority as attorney in fact unless the power of attorney says otherwise.

  Law: RSMo 404.717.1(6)

Questions about powers of attorney in Missouri