L0896.03T

To repeal sections 404.703, 404.705, 404.710, 404.714, 404.717, 404.723, 404.727, 404.730 and 474.490, RSMo 1994, and sections 404.719 and 456.520, RSMo Supp. 1996, relating to probate, and to enact in lieu thereof twenty-two new sections relating to the same subject.

Be it enacted by the General Assembly of the State of Missouri, as follows:

     Section A. Sections 404.703, 404.705, 404.710, 404.714, 404.717, 404.723, 404.727, 404.730 and 474.490, RSMo 1994, and sections 404.719 and 456.520, RSMo Supp. 1996, are repealed and twenty-two new sections enacted in lieu thereof, to be known as sections 404.703, 404.705, 404.710, 404.714, 404.717, 404.719, 404.723, 404.727, 404.730, 456.520, 469.010, 469.020, 469.030, 469.040, 469.050, 469.060, 469.070, 469.080, 469.090, 469.100, 469.110 and 469.120, to read as follows:

     404.703. As used in sections 404.700 to 404.735 the following terms mean:

     (1) "Attorney in fact", an individual or corporation appointed to act as agent of a principal in a written power of attorney;

     (2) "Court", the circuit court including the probate division of the circuit court;

     (3) "Disabled" or "incapacitated", a person who is wholly or partially disabled or incapacitated as defined in section 475.010, RSMo, or in a similar law of the place having jurisdiction of the person whose capacity is in question;

     (4) "Durable power of attorney", a written power of attorney in which the authority of the attorney in fact does not terminate in the event the principal becomes disabled or incapacitated or in the event of later uncertainty as to whether the principal is dead or alive and which complies with subsection 1 of section 404.705 or is durable under the laws of any of the following places:

     (a) The law of the place where executed;

     (b) The law of the place of the residence of the principal when executed; or

     (c) The law of a place designated in the written power of attorney if that place has a reasonable relationship to the purpose of the instrument;

     (5) "Legal representative", a decedent's personal representative, a guardian of a person or the conservator of the estate of a person, whether denominated as general, limited or temporary, or a person legally authorized to perform substantially the same functions;

     (6) "Person", an individual, corporation, or other legal entity;

     (7) "Personal representative", a legal representative of a decedent's estate as defined in section 472.010, RSMo;

     (8) "Power of attorney", a written power of attorney, either durable or not durable;

     (9) "Principal's family", the principal's parent, grandparent, uncle, aunt, brother, sister, son, daughter, grandson, granddaughter and their descendants, whether of the whole blood or the half blood, or by adoption, and the principal's spouse, stepparent and stepchild;

     (10) "Third person", any individual, corporation or legal entity that acts on a request from, contracts with, relies on or otherwise deals with an attorney in fact pursuant to authority granted by a principal in a power of attorney and includes a partnership, either general or limited, governmental agency, financial institution, issuer of securities, transfer agent, securities or commodities broker, real estate broker, title insurance company, insurance company, benefit plan, legal representative, custodian or trustee.

     404.705. 1. The authority granted by a principal to an attorney in fact in a written power of attorney is not terminated in the event the principal becomes wholly or partially disabled or incapacitated or in the event of later uncertainty as to whether the principal is dead or alive if:

     (1) The power of attorney is denominated a "Durable Power of Attorney";

     (2) The power of attorney includes a provision that states in substance [as follows] one of the following:

     (a) "THIS IS A DURABLE POWER OF ATTORNEY AND THE AUTHORITY OF MY ATTORNEY IN FACT SHALL NOT TERMINATE IF I BECOME DISABLED OR INCAPACITATED OR IN THE EVENT OF LATER UNCERTAINTY AS TO WHETHER I AM DEAD OR ALIVE"; or

     (b) "THIS IS A DURABLE POWER OF ATTORNEY AND THE AUTHORITY OF MY ATTORNEY IN FACT, WHEN EFFECTIVE, SHALL NOT TERMINATE OR BE VOID OR VOIDABLE IF I AM OR BECOME DISABLED OR INCAPACITATED OR IN THE EVENT OF LATER UNCERTAINTY AS TO WHETHER I AM DEAD OR ALIVE"; and

     (3) The power of attorney is subscribed by the principal, and dated and acknowledged in the manner prescribed by law for conveyances of real estate.

     2. All acts done by an attorney in fact pursuant to a durable power of attorney shall inure to the benefit of and bind the principal and the principal's successors in interest, notwithstanding any disability or incapacity of the principal or any uncertainty as to whether the principal is dead or alive.

     3. A durable power of attorney does not have to be recorded to be valid and binding between the principal and attorney in fact or between the principal and third persons, except to the extent that recording may be required for transactions affecting real estate under sections 442.360 and 442.370, RSMo.

     4. A person who is appointed an attorney in fact under a durable power of attorney has no duty to exercise the authority conferred in the power of attorney, whether or not the principal has become disabled or incapacitated, is missing or is held in a foreign country, unless the attorney in fact has agreed expressly in writing to act for the principal in such circumstances. An agreement to act on behalf of the principal is enforceable against the attorney in fact as a fiduciary without regard to whether there is any consideration to support a contractual obligation to do so. Acting for the principal in one or more transactions does not obligate an attorney in fact to act for the principal in subsequent transactions.

     404.710. 1. A principal may delegate to an attorney in fact in a power of attorney general powers to act in a fiduciary capacity on the principal's behalf with respect to all lawful subjects and purposes or with respect to one or more express subjects or purposes. A power of attorney with general powers may be durable or not durable.

     2. If the power of attorney states that general powers are granted to the attorney in fact and [does not enumerate one or more express subjects or purposes for which general powers are conferred] further states in substance that it grants power to the attorney in fact to act with respect to all lawful subjects and purposes or that it grants general powers for general purposes or does not by its terms limit the power to the specific subject or purposes set out in the instrument, then the authority of the attorney in fact acting under the power of attorney shall extend to and include each and every action or power which an adult who is nondisabled and nonincapacitated may carry out through an agent specifically authorized in the premises, with respect to any and all matters whatsoever, except as provided in subsections 6 and 7 of this section. When a power of attorney grants general powers to an attorney in fact to act with respect to all lawful subjects and purposes, the enumeration of one or more specific subjects or purposes does not limit the general authority granted by that power of attorney, unless otherwise provided in the power of attorney.

     3. If the power of attorney states that general powers are granted to an attorney in fact with respect to one or more express subjects or purposes for which general powers are conferred, then the authority of the attorney in fact acting under the power of attorney shall extend to and include each and every action or power, but only with respect to the specific subjects or purposes expressed in the power of attorney that an adult who is nondisabled and nonincapacitated may carry out through an agent specifically authorized in the premises, with respect to any and all matters whatsoever, except as provided in subsections 6 and 7 of this section.

     4. Except as provided in subsections 6 and 7 of this section, an attorney in fact with general powers has, with respect to the subjects or purposes for which the powers are conferred, all rights, power and authority to act for the principal that the principal would have with respect to his or her own person or property, including property owned jointly or by the entireties with another or others, as a nondisabled and nonincapacitated adult; and without limiting the foregoing has with respect to the subjects or purposes of the power complete discretion to make a decision for the principal, to act or not act, to consent or not consent to, or withdraw consent for, any act, and to execute and deliver or accept any deed, bill of sale, bill of lading, assignment, contract, note, security instrument, consent, receipt, release, proof of claim, petition or other pleading, tax document, notice, application, acknowledgment or other document necessary or convenient to implement or confirm any act, transaction or decision. An attorney in fact with general powers, whether power to act with respect to all lawful subjects and purposes, or only with respect to one or more express subjects or purposes, shall have the power, unless specifically denied by the terms of the power of attorney, to make, execute and deliver to or for the benefit of or at the request of a third person, who is requested to rely upon an action of the attorney in fact, an agreement indemnifying and holding harmless any third person or persons from any liability, claims or expenses, including legal expenses, incurred by any such third person by reason of acting or refraining from acting pursuant to the request of the attorney in fact, and such indemnity agreement shall be binding upon the principal who has executed such power of attorney and upon the principal's successor or successors in interest. No such indemnity agreement shall protect any third person from any liability, claims or expenses incurred by reason of the fact that, and to the extent that, the third person has honored the power of attorney for actions outside the scope of authority granted by the power of attorney. In addition, the attorney in fact has complete discretion to employ and compensate real estate agents, brokers, attorneys, accountants and subagents of all types to represent and act for the principal in any and all matters, including tax matters involving the United States government or any other government or taxing entity, including, but not limited to, the execution of supplemental or additional powers of attorney in the name of the principal in form that may be required or preferred by any such taxing entity or other third person, and to deal with any or all third [parties] persons in the name of the principal without limitation. No such supplemental or additional power of attorney shall broaden the scope of authority granted to the attorney in fact in the original power of attorney executed by the principal.

     5. An attorney in fact, who is granted general powers for all subjects and purposes or with respect to any express subjects or purposes, shall exercise the powers conferred according to the principal's instructions, in the principal's best interest, in good faith, prudently and in accordance with sections 404.712 and 404.714.

     6. [No] Any power of attorney, whether durable or not durable, and whether or not it grants general powers for all subjects and purposes or with respect to express subjects or purposes, shall be construed to grant power or authority to an attorney in fact to carry out any of the [following] actions [unless] described in this subsection if the actions are expressly enumerated and authorized in the power of attorney. Any power of attorney may grant power of authority to an attorney in fact to carry out any of the following actions if the actions are expressly authorized in the power of attorney:

     (1) To execute, amend or revoke any trust agreement;

     (2) To fund with the principal's assets any trust not created by the principal;

     (3) To make or revoke a gift of the principal's property in trust or otherwise;

     (4) To disclaim a gift or devise of property to or for the benefit of the principal;

     (5) To create or change survivorship interests in the principal's property or in property in which the principal may have an interest; provided, however, that the inclusion of the authority set out in this paragraph shall not be necessary in order to grant to an attorney in fact acting under a power of attorney granting general powers with respect to all lawful subjects and purposes the authority to withdraw funds or other property from any account, contract or other similar arrangement held in the names of the principal and one or more other persons with any financial institution, brokerage company or other depository to the same extent that the principal would be authorized to do if the principal were present, not disabled or incapacitated, and seeking to act in the principal's own behalf;

     (6) To designate or change the designation of beneficiaries to receive any property, benefit or contract right on the principal's death;

     (7) To give or withhold consent to an autopsy or postmortem examination;

     (8) To make a gift of, or decline to make a gift of, the principal's body parts under the Uniform Anatomical Gift Act;

     (9) To nominate a guardian or conservator for the principal; [or] and if so stated in the power of attorney, the attorney in fact may nominate himself as such;

     (10) To give consent to or prohibit any type of health care, medical care, treatment or procedure to the extent authorized by sections 404.800 to 404.865[.]; or

     (11) To designate one or more substitute or successor or additional attorneys in fact.

     7. No power of attorney, whether durable or not durable, and whether or not it delegates general powers, may delegate or grant power or authority to an attorney in fact to do or carry out any of the following actions for the principal:

     (1) To make, publish, declare, amend or revoke a will for the principal;

     (2) To make, execute, modify or revoke a living will declaration for the principal;

     (3) To require the principal, against his or her will, to take any action or to refrain from taking any action; or

     (4) To carry out any actions specifically forbidden by the principal while not under any disability or incapacity.

     8. A third person may freely rely on, contract and deal with an attorney in fact delegated general powers with respect to the subjects and purposes encompassed or expressed in the power of attorney without regard to whether the power of attorney expressly identifies the specific property, account, security, storage facility or matter as being within the scope of a subject or purpose contained in the power of attorney, and without regard to whether the power of attorney expressly authorizes the specific act, transaction or decision by the attorney in fact.

     9. It is the policy of this state that an attorney in fact acting pursuant to the provisions of a power of attorney granting general powers shall be accorded the same rights and privileges with respect to the personal welfare, property and business interests of the principal, and if the power of attorney enumerates some express subjects or purposes, with respect to those subjects or purposes, as if the principal himself or herself were personally present and acting or seeking to act; and any provision of law and any purported waiver, consent or agreement executed or granted by the principal to the contrary shall be void and unenforceable[, unless any deed, bill of sale, bill of lading, assignment, contract, note, security instrument, consent, receipt, release, proof of claim, petition or other pleading, tax document, notice, application, acknowledgment or other document necessary or convenient to implement or confirm any act, transaction or decision, expressly modifies the provisions of the power of attorney pursuant to section 404.717].

     10. Sections 404.700 to 404.735 shall not be construed to preclude any person or business enterprise from providing in a contract with the principal as to the procedure that thereafter must be followed by the principal or the principal's attorney in fact in order to give a valid notice to the person or business enterprise of any modification or termination of the appointment of an attorney in fact by the principal; and any such contractual provision for notice shall be valid and binding on the principal and the principal's successors so long as such provision is reasonably capable of being carried out.

     404.714. 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. 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.

     404.717. 1. As between the principal and attorney in fact or successor attorney in fact, and any agents appointed by either of them, unless the power of attorney is coupled with an interest, the authority granted in a power of attorney shall be modified or terminated as follows:

     (1) On the date shown in the power of attorney and in accordance with the express provisions of the power of attorney;

     (2) When the principal, orally or in writing, or the principal's legal representative with approval of the court in writing informs the attorney in fact or successor that the power of attorney is modified or terminated, or when and under what circumstances it is modified or terminated;

     (3) When a written notice of modification or termination of the power of attorney is filed by the principal or the principal's legal representative for record in the office of the recorder of deeds in the city or county of the principal's residence or, if the principal is a nonresident of the state, in the city or county of the residence of the attorney in fact last known to the principal, or in the city or county in which is located any property specifically referred to in the power of attorney;

     (4) On the death of the principal, except that if the power of attorney grants authority under subdivision (7) or (8) of subsection 6 of section 404.710, the power of attorney and the authority of the attorney in fact shall continue for the limited purpose of carrying out the authority granted under either or both of said subdivisions for a reasonable length of time after the death of the principal;

     (5) When the attorney in fact under a durable power of attorney is not qualified to act for the principal;

     (6) On the filing of any action for divorce or dissolution of the marriage of the principal and the principal's attorney in fact who were married to each other at or subsequent to the time the power of attorney was created, unless the power of attorney provides otherwise.

     2. Whenever any of the events described in subsection 1 of this section operate merely to terminate the authority of the particular person designated as the attorney in fact, rather than terminating the power of attorney, if the power of attorney designates a successor or contingent attorney in fact or prescribes a procedure whereby a successor or contingent attorney in fact may be designated, then the authority provided in the power of attorney shall extend to and vest in the successor or contingent attorney in fact in lieu of the attorney in fact whose power and authority was terminated under any of the circumstances referred to in subsection 1 of this section.

     3. As between the principal and attorney in fact or successor, acts and transactions of the attorney in fact or successor undertaken in good faith, in accordance with section 404.714, and without actual [or constructive] knowledge of the death[, disability or incapacity] of the principal or without actual knowledge, or constructive knowledge pursuant to subdivision (3) of subsection 1 of this section, that the authority granted in the power of attorney has been suspended, modified or terminated, relieves the attorney in fact or successor from liability to the principal and the principal's successors in interest.

     4. This section does not prohibit the principal, acting individually, and the person designated as the attorney in fact from entering into a written agreement that sets forth their duties and liabilities as between themselves and their successors, and which expands or limits the application of sections 404.700 to 404.735, with the exception of those acts enumerated in subsection 7 of section 404.710.

     5. As between the principal and any attorney in fact or successor, if the attorney in fact or successor undertakes to act, and if in respect to such act, the attorney in fact or successor acts in bad faith, fraudulently or otherwise dishonestly, or if the attorney in fact or successor intentionally acts after receiving actual notice that the power of attorney has been revoked or terminated, and thereby causes damage or loss to the principal or to the principal's successors in interest, such attorney in fact or successor shall be liable to the principal or to the principal's successors in interest, or both, for such damages, together with reasonable attorney's fees, and punitive damages as allowed by law.

     404.719. 1. A third person, who is acting in good faith, without liability to the principal or the principal's successors in interest, may rely and act on any power of attorney executed by the principal; and, with respect to the subjects and purposes encompassed by or separately expressed in the power of attorney, may rely and act on the instructions of or otherwise contract and deal with the principal's attorney in fact or successor attorney in fact and, in the absence of actual knowledge, as defined in subsection 3 of this section, is not responsible for determining and has no duty to inquire as to any of the following:

     (1) The authenticity of a certified true copy of a power of attorney furnished by the principal's attorney in fact or successor;

     (2) The validity of the designation of the attorney in fact or successor;

     (3) Whether the attorney in fact or successor is qualified to act as an attorney in fact for the principal;

     (4) The propriety of any act of the attorney in fact or successor in the principal's behalf, including, but not limited to, whether or not an act taken or proposed to be taken by the attorney in fact, constitutes a breach of any duty or obligation owed to the principal, including, but not limited to, the obligation to the principal not to modify or alter the principal's estate plan or other provisions for distributions of assets at death, as provided in subsection 1 of section 404.714;

     (5) Whether any future event, condition or contingency making effective or terminating the authority conferred in a power of attorney has occurred;

     (6) Whether the principal is disabled or incapacitated or has been adjudicated disabled or incapacitated;

     (7) Whether the principal, the principal's legal representative or a court has given the attorney in fact any instructions or the content of any instructions, or whether the attorney in fact is following any instructions received;

     (8) Whether the authority granted in a power of attorney has been modified by the principal, a legal representative of the principal or a court;

     (9) Whether the authority of the attorney in fact has been terminated, except by an express provision in the power of attorney showing the date on which the power of attorney terminates;

     (10) Whether the power of attorney, or any modification or termination thereof, has been recorded, except as to transactions affecting real estate;

     (11) Whether the principal had legal capacity to execute the power of attorney at the time the power of attorney was executed;

     (12) Whether, at the time the principal executed the power of attorney, the principal was subjected to duress, undue influence or fraud, or the power of attorney was for any other reason void or voidable, if the power of attorney appears to be regular on its face;

     (13) Whether the principal is alive;

     (14) Whether the principal and attorney in fact were married at or subsequent to the time the power of attorney was created and whether the marriage has been dissolved; or

     (15) The truth or validity of any facts or statements made in an affidavit of the attorney in fact or successor with regard to the ability or capacity of the principal, the authority of the attorney in fact or successor under the power of attorney, the happening of any event or events vesting authority in any successor or contingent attorney in fact, the identity or authority of a person designated in the power of attorney to appoint a substitute or successor attorney in fact or that the principal is alive.

     2. A third person, in good faith and without liability to the principal or the principal's successors in interest, even with knowledge that the principal is disabled or incapacitated, may rely and act on the instructions of or otherwise contract and deal with the principal's attorney in fact or successor attorney in fact acting pursuant to authority granted in a durable power of attorney.

     3. A third person that conducts activities through employees shall not be charged under sections 404.700 to 404.735 with actual knowledge of any fact relating to a power of attorney, nor of a change in the authority of an attorney in fact, unless the information is received at a home office or a place where there is an employee with responsibility to act on the information, and the employee has a reasonable time in which to act on the information using the procedures and facilities that are available to the third person in the regular course of its operations.

     4. A third person, when being requested to engage in transactions with a principal through the principal's attorney in fact, may require the attorney in fact to provide specimens of his or her signature and any other information reasonably necessary or appropriate in order to facilitate the actions of the third [party] person in transacting business through the attorney in fact, may require the attorney in fact to indemnify the third [party] person against forgery of the power of attorney, by bond or otherwise; provided, however, that if the power of attorney is durable as defined in subsection 1 of section 404.705 and if either the principal or the attorney in fact seeking to act is and has been a resident of this state for at least two years, and if the attorney in fact has executed in the name of the principal and delivered to the third person an indemnity agreement reasonably satisfactory in form to such third person, no such bond shall be required; and may prescribe the place and manner in which the third person will be given any notice respecting the principal's power of attorney and the time in which the third person has to comply with any notice.

     404.723. 1. An attorney in fact or successor from time to time may revocably delegate any or all of the powers granted in a durable power of attorney to one or more qualified persons, subject to any directions or limitations of the principal expressed in the power of attorney, but the attorney in fact making the delegation shall remain responsible to the principal for the exercise or nonexercise of the powers delegated.

     2. The principal in a durable power of attorney may revocably name one or more qualified persons as successor attorneys in fact to exercise the authority granted in the power of attorney in the order named in the event a prior named attorney in fact resigns, dies, becomes disabled or incapacitated, is not qualified to act or refuses to act; and the principal in a durable power of attorney may revocably grant a power to another person, designated by name, by office, or by function, including the initial and any successor attorney in fact, whereby there may be revocably named at any time one or more successor attorneys in fact.

     3. A delegated or successor attorney in fact need not indicate his or her capacity as a delegated or successor attorney in fact.

     4. If a wholly or partially incapacitated or wholly or partially disabled person has provided for personal care or property management in an unrevoked durable power of attorney which the court finds is reasonably adequate to provide guidance to the attorney in fact for the conduct of the principal's personal or business affairs, and there is no attorney in fact or successor designated in the durable power of attorney who is willing, able and available to act, the court in lieu of appointing a full or limited guardian or a full or a limited conservator may appoint any adult person or financial institution as successor attorney in fact to act pursuant to the incapacitated or disabled principal's durable power of attorney, with or without bond and with or without court supervision, upon such terms and conditions as the court may require. In lieu of or in addition to appointing a successor attorney in fact or a limited or full conservator for management of a disabled person's estate the court may appoint any adult person or financial institution to act as personal custodian of the disabled person's estate pursuant to section 404.510. None of the actions described in this subsection shall be taken by the court until after hearing upon reasonable notice to all persons identified in a verified statement supplied by the petitioner who is requesting such action identifying the immediate relatives of the principal and any other persons known to the petitioner to be interested in the welfare of the principal; except that in the event of an emergency as determined by the court, the court may, without notice, enter such temporary order as seems proper to the court, but no such temporary order shall be effective for more than thirty days unless extended by the court after hearing on reasonable notice to the persons identified as herein provided.

     404.727. 1. The principal may petition the court for an accounting by the principal's attorney in fact or the legal representative of the attorney in fact. If the principal is disabled, incapacitated or deceased, a petition for accounting may be filed by the principal's legal representative, an adult member of the principal's family or any person interested in the welfare of the principal.

     2. Any requirement for an accounting may be waived or an accounting may be approved by the court without hearing, if the accounting is waived or approved by a principal who is not disabled, or by a principal whose legal capacity has been restored, or by all creditors and distributees of a deceased principal's estate whose claims or distributions theretofore have not been satisfied in full. The approval or waiver shall be in writing, signed by the affected persons and filed with the court.

     3. For the purposes of subsection 2 of this section, a legal representative or a person providing services to the principal's estate shall not be considered a creditor of the principal's estate; and no express approval or waiver shall be required from the legal representative of a disabled or incapacitated principal if the principal's legal capacity has been restored, or from the personal representative of a deceased principal's estate, or from any other person entitled to compensation or expense for services rendered to a disabled, incapacitated or deceased principal's estate, unless the principal or the principal's estate is unable to pay in full the compensation and expense to which the person rendering the services may be entitled.

     4. The principal, the principal's attorney in fact, an adult member of the principal's family or any person interested in the welfare of the principal may petition the probate division of the circuit court in the county or city where the principal is then residing to determine and declare whether a principal, who has executed a power of attorney, is a disabled or incapacitated person.

     5. If the principal is a disabled or incapacitated person, on petition of the principal's legal representative, an adult member of the principal's family or any interested person, including a person interested in the welfare of the principal, for good cause shown the court, may:

     (1) Order the attorney in fact to exercise or refrain from exercising authority in a durable power of attorney in a particular manner or for a particular purpose;

     (2) Modify the authority of an attorney in fact under a durable power of attorney;

     (3) Declare suspended a power of attorney that is not durable;

     (4) Terminate a durable power of attorney;

     (5) Remove the attorney in fact under a durable power of attorney;

     (6) Confirm the authority of an attorney in fact or a successor attorney in fact to act under a durable power of attorney; and

     (7) Issue such other orders as the court finds will be in the best interest of the disabled or incapacitated principal, including appointment of a guardian or conservator for the principal.

     6. If, after notice and hearing, the court determines that there has been a prima facie showing that the principal is a disabled or incapacitated person and that the attorney in fact has breached his fiduciary duty to the principal or that there is a reasonable likelihood that he may do so in the immediate future, the court may, in its discretion, issue an order that some or all of the authority granted by the power of attorney be suspended or modified, and that a different attorney in fact be authorized to exercise some or all of the powers granted by the power of attorney. Such attorney in fact may be designated by the court. The court may require any person petitioning for any such order to file a bond in such amount and with such sureties as required by the court to indemnify either the attorney in fact who has been acting on behalf of the principal or the principal and the principal's successors in interest for the expenses, including attorney's fees, incurred by any such persons with respect to such proceeding. The court may, after hearing, allow payment or enter judgment for any such amount in the manner as provided by subsection 6 of section 404.731. None of the actions described in this subsection shall be taken by the court until after hearing upon reasonable notice to all persons identified in a verified statement supplied by the petitioner who is requesting such action identifying the immediate relatives of the principal and any other persons known to the petitioner to be interested in the welfare of the principal; except that in the event of an emergency as determined by the court, the court may, without notice, enter such temporary order as seems proper to the court, but no such temporary order shall be effective for more than thirty days unless extended by the court after hearing on reasonable notice to the persons identified as herein provided.

     [6.] 7. If a power of attorney is suspended or terminated by the court or the attorney in fact is removed by the court, the court may require an accounting from the attorney in fact and order delivery of any property belonging to the principal and copies of any necessary records of the attorney in fact concerning the principal's property and affairs to a successor attorney in fact or the principal's legal representative.

     [7.] 8. In a proceeding under sections 404.700 to 404.735 or in any other proceeding, or upon petition of an attorney in fact or successor, the court may:

     (1) Require or permit an attorney in fact under a durable power of attorney to account;

     (2) Authorize the attorney in fact under a durable power of attorney to enter into any transaction, or approve, ratify, confirm and validate any transaction entered into by the attorney in fact that the court finds is, was or will be beneficial to the principal and which the court has power to authorize for a guardian or conservator under chapter 475, RSMo; and

     (3) Relieve the attorney in fact of any obligation to exercise authority for a disabled or incapacitated principal under a durable power of attorney.

     [8.] 9. Unless previously barred by adjudication, consent or limitation, any cause of action against an attorney in fact or successor for breach of duty to the principal shall be barred as to any principal who has received an account or other statement fully disclosing the matter unless a proceeding to assert the cause of action is commenced within two years after receipt of the account or statement by him or, if the principal is a disabled or incapacitated person, by a guardian or conservator of his estate; provided that, if a disabled or incapacitated person has no guardian or conservator of his estate at the time an account or statement is presented, then the cause of action shall not be barred until one year after the removal of the principal's disability or incapacity, one year after the appointment of a conservator for the principal, or one year after the death of the principal. The cause of action thus barred does not include any action to recover from an attorney in fact or successor for fraud, misrepresentation or concealment related to the settlement of any transaction involving the agency relationship of the attorney in fact with the principal.

     404.730. 1. Sections 404.700 to 404.735 apply to the acts and transactions in this state of attorneys in fact under powers of attorney executed in this state or by residents of this state; and also apply to acts and transactions of attorneys in fact in this state or outside this state under powers of attorney that refer to the durable power of attorney law of Missouri in the instrument creating the power of attorney, if any of the following conditions are met:

     (1) The principal or attorney in fact was a resident of this state at the time the power of attorney was executed;

     (2) The powers and authority conferred relate to property, acts or transactions in this state;

     (3) The acts and transactions of the attorney in fact or successor occurred or were to occur in this state;

     (4) The power of attorney was executed in this state; or

     (5) There is otherwise a reasonable relationship between this state and the subject matters of the power of attorney.

The power of attorney so created remains subject to sections 404.700 to 404.735 despite a subsequent change in residence of the principal or the attorney in fact and any successor, or the removal from this state of property which was the subject of the power of attorney.

     2. A person who acts as an attorney in fact or successor pursuant to a power of attorney governed by sections 404.700 to 404.735 is subject to personal jurisdiction in this state with respect to matters relating to acts and transactions of the attorney in fact or successor performed in this state, performed for a resident of this state or affecting property in this state.

     3. Sections 404.700 to 404.735 shall not be construed as providing an exclusive method for creating powers of attorney that are in fact durable or that may be durable as to one or more acts by reason of the fact that the attorney in fact or other person has a property or contract interest in the authority conferred.

     4. Sections 404.700 to 404.735 shall not be construed to apply to powers of attorney that are not durable except where specifically so stated; and sections 404.700 to 404.735, insofar as they apply to powers of attorney that are not durable, are intended to be declaratory of existing law.

     5. A durable power of attorney that purports to have been made under the provisions of the uniform durable power of attorney act or a substantially similar law of another state is governed by the law of the designated state and, if durable where executed, is durable and may be carried out and enforced in this state.

     6. A power of attorney, whether durable or not, executed by a resident of another state, may authorize the carrying out in this state of all acts permitted to be delegated to an agent by the laws of the state of the residence of the principal, the laws of the state where the power of attorney is executed, or the laws of this state, whichever law is most favorable toward authorizing such delegation, and is durable if so designated either under the laws of this state, under the laws of the state of residence of the principal, or under the laws of the state where the power of attorney is executed.

     456.520. 1. From time of creation of the trust until final distribution of the assets of the trust, a trustee has the power to perform, without court authorization, every act which a prudent investor would perform for the purposes of the trust including but not limited to the powers specified in subsection 3 of this section.

     2. In the exercise of his powers including the powers granted by this chapter, a trustee has a duty to act with due regard to his obligation as a fiduciary.

     3. A trustee has the power, subject to subsections 1 and 2 of this section:

     (1) To collect, hold, and retain trust assets received from a trustor until, in the judgment of the trustee, disposition of the assets should be made; and the assets may be retained even though they include an asset in which the trustee is personally interested;

     (2) To receive additions to the assets of the trust;

     (3) To continue or participate in the operation of any business or other enterprise, and to effect incorporations, dissolution, or other change in the form of the organization of the business or enterprise;

     (4) To acquire an undivided interest in a trust asset in which the trustee, in any trust capacity, holds an undivided interest;

     (5) To invest and reinvest trust assets in accordance with the provisions of the trust or as provided by law;

     (6) To deposit trust funds in savings and loan associations, credit unions and banks, including a bank operated by the trustee;

     (7) To acquire or dispose of an asset, for cash or on credit, at public or private sale; and to manage, develop, improve, exchange, partition, change the character of, or abandon a trust asset or any interest therein; and to encumber, mortgage, or pledge a trust asset for a term within or extending beyond the term of the trust, in connection with the exercise of any power vested in the trustee;

     (8) To make ordinary or extraordinary repairs or alterations in buildings or other structures, to demolish any improvements, to raze existing or erect new party walls or buildings;

     (9) To subdivide, develop, or dedicate land to public use; or to make or obtain the vacation of plats and adjust boundaries; or to adjust differences in valuation on exchange or partition by giving or receiving consideration; or to dedicate easements to public use without consideration;

     (10) To enter for any purpose into a lease as lessor or lessee with or without option to purchase or renew for a term within or extending beyond the term of the trust;

     (11) To enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;

     (12) To grant an option involving disposition of a trust asset, or to take an option for the acquisition of any asset;

     (13) To vote a security, in person or by general or limited proxy;

     (14) To pay calls, assessments, and any other sums chargeable or accruing against or on account of securities;

     (15) To sell or exercise stock subscription or conversion rights; directly or through a committee or other agent, to consent to or oppose the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;

     (16) To hold a security in the name of a nominee or in other form without disclosure of the trust, so that title to the security may pass by delivery, but the trustee is liable for any act of the nominee in connection with the security so held;

     (17) To insure the assets of the trust against damage or loss, and the trustee against liability with respect to third persons;

     (18) To borrow money to be repaid from trust assets or otherwise; to advance money for the protection of the trust, and for all expenses, losses, and liability sustained in the administration of the trust or because of the holding or ownership of any trust assets, for which advances with any interest the trustee has a lien on the trust assets as against the beneficiary;

     (19) To pay or contest any claim; to settle a claim by or against the trust by compromise, arbitration, or otherwise; and to release, in whole or in part, any claim belonging to the trust to the extent that the claim is uncollectible;

     (20) To pay taxes, assessments, compensation of the trustee, and other expenses incurred in the collection, care, administration, and protection of the trust;

     (21) To allocate items of income or expense to either trust income or principal, as provided by this chapter, including creation of reserves out of income for depreciation, obsolescence, or amortization, or for depletion in mineral or timber properties;

     (22) To pay any sum distributable to a beneficiary under legal disability, without liability to the trustee, by paying the sum to the beneficiary or by paying the sum for the use of the beneficiary;

     (23) To effect distribution of property and money in divided or undivided interests and to adjust resulting differences in valuation;

     (24) To employ persons, including attorneys, accountants, investment advisors, or agents, even if they are associated with the trustee, to advise or assist the trustee in the performance of his administrative duties; to act without independent investigation upon their recommendations; and instead of acting personally, to employ one or more agents to perform any act of administration, whether or not discretionary;

     (25) To prosecute or defend actions, claims, or proceedings for the protection of trust assets and of the trustee in the performance of his duties;

     (26) To execute and deliver all instruments which will accomplish or facilitate the exercise of the powers vested in the trustee;

     (27) To invest and reinvest trust assets in United States government obligations, either directly or in the form of securities of, or other interests in, any open-end or closed-end management type investment company or investment trust registered under the Investment Company Act of 1940, as amended, provided that the governing instrument or order directs, requires, authorizes, or permits investment in United States government obligations, and provided that the portfolio of such investment company or investment trust is limited to United States government obligations and to repurchase agreements fully collateralized by such obligations, and provided further that such investment company or investment trust shall take delivery of such collateral;

     (28) To invest and reinvest trust assets in securities or obligations of any state or its political subdivisions, including securities or obligations that are underwritten by the trustee or an affiliate of the trustee or a syndicate in which the trustee or an affiliate of the trustee is a member which in addition to meeting the standards under subsections 1 and 2 of this section also meet the standards established by the division of finance under subsection 5 of section 362.550, RSMo.

     (29) To divide any trust, before or after its initial funding, into two or more separate trusts, and to make payments or distributions that are authorized by or directed in the governing instrument from any one or more of such separate trusts.

     469.010. Any individual to whom property or an interest therein is donatively transferred by any means, including a transfer resulting from another disclaimer, may disclaim all or any portion of the transfer. Unless the terms of the transfer otherwise provide, the disclaimer shall cause the terms of the transfer to be applied to the disclaimed transfer and to any future interests taking effect thereafter as if the disclaimant had died immediately before the transfer. The presumption of a disclaimant's death does not prevent recognition of the disclaimant's later born children and their issue, assuming they have rights after all proper acceleration has taken place, nor does it prevent recognition of future and other interests of the disclaimant which are not disclaimed. For all purposes the disclaimed interest is deemed to have passed directly from the transferor to the ultimate taker or takers and is not subject to the claim of any creditor of the disclaimant. A disclaimed portion of a transfer passes to the same ultimate taker or takers and in the same proportions as in the case of a disclaimer of all of the transfer.

     469.020. 1. A disclaimer is made by a writing showing an unconditional refusal to accept a transfer, or a portion thereof, signed by the disclaimant, or representative, and delivered on or before nine months after the transfer, or by any later time provided in the particular case or pursuant to other provisions of this chapter, and before any acceptance of the disclaimed interest. Delivery of a disclaimer may be accomplished by delivery to the transferor, the transferor's personal representative or other legal representative, or the holder of the legal title to the property to which the interest related. A disclaimer involving an estate or property within the jurisdiction of the probate division of a circuit court may be filed in that division.

     2. The right to disclaim exists notwithstanding any intention to the contrary expressed by the transferor and notwithstanding any limitation on the disclaimant such as a spendthrift provision or similar restriction.

     469.030. 1. Except as otherwise provided in sections 469.090 and 469.100, acceptance of a transferred interest or a portion thereof may be shown by conduct, including acceptance of benefits. Acceptance precludes any later disclaimer.

     2. A disclaimer or acceptance may be made on a person's behalf by the person's representative who may be an authorized agent, the guardian or conservator of a minor or disabled person, or the personal representative of a deceased person.

     469.040. A transfer that is subject to the transferor's power to revoke is not a transfer for purposes of this chapter unless such power is released or extinguished.

     469.050. Each separate interest in property is subject to disclaimer or acceptance and each separate interest, including any specific amount, part, fraction or asset thereof, or formula amount based on present or future facts independent of the disclaimant's volition, is subject to disclaimer or acceptance.

     469.060. A power with respect to property shall be treated as an interest in such property and if releasable shall be disclaimable in whole or in part under the provisions of this chapter by the holder of the power. An individual who is a potential object of a power exercise has an interest in the property that is disclaimable in whole or in part.

     469.070. A contingent future interest may be disclaimed in whole or in part under the provisions of this chapter at any time before, or within nine months after, beneficiaries of the interest have been fully ascertained and their interests vested. A vested interest subject to defeasance or divestment shall be deemed a contingent interest for purposes of this chapter.

     469.080. In the case of a per stirpes distribution or vesting, either under an instrument or by operation of law, a prior or subsequent disclaimer by an individual living at the time of the transfer or vesting does not change the stocks that are to be used as the basis of the division between beneficiaries of succeeding generations.

     469.090. The following rules set forth in subdivisions (1) and (2) of this section shall apply in the case of a vested interest or vested future interest created by a transfer made before 1977, and may apply in such case to lengthen, but shall not shorten, the time for disclaimer otherwise available:

     (1) Such interest is subject to disclaimer in whole or in part for a reasonable time after the disclaimant has knowledge of the existence of the transfer;

     (2) If the interest has vested before the disclaimant's eighteenth birthday, and the disclaimant has knowledge of the existence of the transfer before the disclaimant's eighteenth birthday, such interest is subject to disclaimer in whole or in part until a reasonable time elapses after the disclaimant's eighteenth birthday, except that a written acceptance by the disclaimant's representative shall constitute an acceptance of any portion of the interest.

     469.100. In the case of a transfer made after 1976 creating an interest or future interest that has vested in a person before such person's twenty-first birthday, such interest shall be subject to disclaimer as provided in this chapter until nine months after the person's twenty-first birthday. No act or conduct of the person prior to such twenty-first birthday, other than a written acceptance, shall constitute an acceptance of any portion of the interest.

     469.110. This chapter does not abridge or affect the right of any person to transfer, release, disclaim or renounce any property, interest or power, or elect against a will, under any other statute or under the common law.

     469.120. This chapter shall be effective with respect to any disclaimer made after August 13, 1982, except that rights which have vested pursuant to any such disclaimer shall not be disturbed by the provisions of this chapter.     [474.490. 1. When used in this section, the following terms shall mean:

     (1) "Disclaimant", a person disclaiming a transfer, or, if such person is deceased, whose personal representative disclaims a transfer, without the necessity of obtaining leave of court, on behalf of the estate of such person, or, if such person is disabled as defined in chapter 475, RSMo, whose conservator disclaims a transfer, with leave of court, on behalf of such person;

     (2) "Disclaimer", an irrevocable and unqualified refusal to accept a transfer;

     (3) "Effective date of the transfer":

     (a) Except as provided in paragraphs (b) through (e) of this subdivision, the date of death of the transferor;

     (b) Except as provided in paragraphs (c) through (e) of this subdivision, if the transfer being disclaimed is not a joint tenancy with rights of survivorship or a tenancy by the entirety and is transferred, conveyed or conferred by the exercise of an inter vivos power of appointment, the date of such exercise, or by any other nontestamentary instrument under which the transferor, during his lifetime, retains no power to revoke or convey to himself or another the transfer being disclaimed, the earliest date upon which the transferor retains no such power;

     (c) Except as provided in paragraphs (d) and (e) of this subdivision, if the transfer is a future interest or power, the date of the event determining that the taker of the interest or the holder of the power has become finally ascertained and his interest or power is vested to the full extent possible under the terms of the transfer;

     (d) Except as provided in paragraph (e) of this subdivision, if the disclaimant is under the age of eighteen years at any time referred to in the foregoing provisions of this subdivision, the date upon which the disclaimant attains the age of eighteen years; and

     (e) If the disclaimant is under the age of twenty-one years at any time referred to in the foregoing provisions of this subdivision and if the transfer does not confer fee ownership of property or an undivided portion thereof prior to the date upon which the disclaimant attains the age of twenty-one years, the date upon which the disclaimant attains the age of twenty-one years;

     (4) "Interest", any beneficial interest in property;

     (5) "Power", the power to establish or alter an interest, including an inter vivos or testamentary power of appointment and any power held in a fiduciary capacity;

     (6) "Transfer", the transfer, conveyance or conferment of any property, interest or power from a person other than the disclaimant by operation of law or any testamentary or nontestamentary instrument, including, but not limited to, the laws of intestate succession, a will, a trust instrument, the exercise or nonexercise of a power of appointment, a life insurance or annuity contract, a joint tenancy with rights of survivorship, a tenancy by the entirety, an account or bond payable on the death of the transferor, a benefit plan (including, without limitation, any pension, retirement, death benefit, stock bonus or profit-sharing plan, system or trust), and any transfer created or increased by reason of a disclaimer by a person other than the disclaimant;

     (7) "Transferor", any person who makes a transfer.

     2. A disclaimant may disclaim any transfer by delivering a written disclaimer within the time and in the manner specified in this section. A disclaimant under this section may accept one transfer and disclaim another, may disclaim a transfer in whole or in part, or with reference to any specific amount, part, fractional share, undivided portion or asset thereof. The right to disclaim under this section exists irrespective of any limitation on the disclaimant in the nature of a spendthrift provision or similar restriction.

     3. The disclaimer must:

     (1) Be in writing,

     (2) Identify the transfer being disclaimed,

     (3) Be signed by the disclaimant or by one with authority to sign on behalf of the disclaimant, and

     (4) No later than nine months after the effective date of the transfer, be received by the transferor, or the transferor's legal representative, or the holder of legal title to the property being disclaimed or the property to which the interest or power being disclaimed relates. A copy of the disclaimer may be filed in the probate division of the circuit court of the county in which proceedings for the administration of the estate of the deceased owner of the property or deceased donee of the power have been commenced. If real property or an interest therein is disclaimed, a copy of the disclaimer may be recorded in the office of the recorder of deeds of the county in which the real property is located.

     4. Unless the transferor has otherwise provided, the disclaimer has the same effect with respect to the disclaimed transfer as though the disclaimant died immediately prior to the effective date of the transfer. Notwithstanding the foregoing provisions of this subsection, a disclaimer by the surviving spouse of a decedent of a transfer by such decedent shall not be deemed to be a disclaimer by such spouse of all or any part of any other transfer from such decedent to or for the benefit of such spouse, regardless of whether the property or interest which would have passed under such disclaimed transfer passes, by reason of such disclaimer, to or for the benefit of such spouse by virtue of such other transfer. A disclaimer under this section relates back for all purposes to the effective date of the transfer and shall not be subject to the claims of any creditor of the disclaimant.

     5. A disclaimer may not be made under this section with respect to any transfer, or part thereof, which the disclaimant has accepted; provided that, an acceptance does not preclude a person from disclaiming all or a part of any other property or interest or power to which he becomes entitled when another person disclaims after such acceptance. For purposes of this subsection, a person accepts a transfer if such person voluntarily transfers or encumbers, or contracts to transfer or encumber, all or a part thereof, or executes a written waiver of the right to disclaim, or receives benefits from the transfer, or otherwise indicates acceptance of the transfer; provided that, a person who has received benefits from property or an interest without any action on his part before attaining the age of twenty-one shall not be deemed to have accepted such property or interest; and provided, further, that a person retaining the fee ownership of property or of an undivided portion thereof for more than nine months after attaining the age of eighteen years shall be deemed to have accepted such property or undivided interest.

     6. This section does not abridge the right of any person to assign, convey, release, disclaim or renounce any property, interest or power under any other statute or the common law.

     7. A present interest or power that exists on August 13, 1982, as to which the time for disclaimer under this section has not expired may be disclaimed nine months after August 13, 1982; provided that, an interest or power which exists on August 13, 1982, but which has not then become indefeasibly fixed both in quality and quantity, or the taker of which has not then become finally ascertained, may be disclaimed as provided in this section.]