Fiscal Note - SB 0265 - Revises Durable Power of Attorney Law
L.R. NO. 0896-03
BILL NO. Truly Agreed To and Finally Passed HCS for SCS for SB 265
SUBJECT: Durable Power of Attorney; Estates
TYPE: Original
DATE: April 30, 1997
FISCAL SUMMARY
ESTIMATED NET EFFECT ON STATE FUNDS
FUND AFFECTED FY 1998 FY 1999 FY 2000
None
Total Estimated
Net Effect on All
State Funds $0 $0 $0
ESTIMATED NET EFFECT ON FEDERAL FUNDS
FUND AFFECTED FY 1998 FY 1999 FY 2000
None
Total Estimated
Net Effect on All
Federal Funds $0 $0 $0
ESTIMATED NET EFFECT ON LOCAL FUNDS
FUND AFFECTED FY 1998 FY 1999 FY 2000
Local Government $0 $0 $0
FISCAL ANALYSIS
ASSUMPTION
Officials from the Office of State Courts Administrator (CTS) assume the
proposed legislation would make various changes to the Durable Power of
Attorney Law. CTS would anticipate substantial compliance with the
provisions of this proposal. Overall, CTS would not expect a significant
increase in the workload of the courts.
Officials from the Office of the Attorney General, the Department of Social
Services, the Department of Mental Health, and the Department of Revenue
assume the proposal would have no fiscal impact on their agencies.
FISCAL IMPACT - State Government FY 1998 FY 1999 FY 2000
(10 Mo.)
$0 $0 $0
FISCAL IMPACT - Local Government FY 1998 FY 1999 FY 2000
(10 Mo.)
$0 $0 $0
FISCAL IMPACT - Small Business
No direct fiscal impact to small businesses would be expected as a result of
this proposal.
DESCRIPTION
The proposal would make various changes to Missouri's Durable Power of
Attorney Law. The proposal would clarify the extent of an attorney-in-fact's
power to act on behalf of his principal. An attorney-in-fact who is granted
general powers would not be expressly limited to the powers enumerated in the
power of attorney instrument. An attorney-in-fact with general powers would
have the power to act for the principal with respect to property held jointly
by the principal. Such attorney-in-fact would also have the power to agree
to indemnify a third person from liability for acting or failing to act at
the request of such attorney. An attorney-in-fact who has provided an
indemnity agreement to a third party would not be required to provide a bond
if the attorney or principal has lived in the state for at least two years.
An attorney-in-fact could be granted the power to designate a successor.
Also, an attorney-in-fact would have an obligation to act in the best
interests of the principal. An attorney-in-fact who acts in bad faith or who
acts knowing that his power has been terminated would be liable to the
principal for damages caused and could be liable for punitive damages. If a
court finds that an attorney-in-fact has or is about to breach his duty to
the principal, the court could suspend or modify the power of attorney to
restrict the power of such attorney. A power of attorney that expires on the
death of the principal would not expire if such attorney was authorized to
make a gift of the principal's body parts or consent to an autopsy of the
principal. A third person could rely on, and would have no duty to inquire
as to, any act made by an attorney-in-fact, including any act which could
constitute a breach of such attorney's duty.
If no attorney-in-fact is available to act, the court could appoint an
individual or financial institution to act as a successor attorney-in-fact
rather than appoint a guardian or conservator. Additionally, if a power of
attorney is executed by a non-Missouri resident, such power could be
exercised according to the law which gives the attorney-in-fact the most
discretion to act.
This proposal would repeal the current section relating to disclaimers
(Section 474.490, RSMo.), and create a new chapter (Chapter 469) relating to
disclaimers. The following provisions would be included:
A trustee would be given the power to divide any trust into separate trusts
(456.520). Any individual who has a property interest could disclaim all or
a part of such interest. A disclaimed interest would pass directly to the
disclaimant's heirs or takers and could not be reached by creditors of the
disclaimant (469.010). A disclaimer would be made in writing and would have
to be delivered within nine months after a transfer was made to the
transferor or the transferor's representative (469.020). Acceptance of a
transfer would preclude any later disclaimer. A disclaimer or acceptance
could be made by a person's representative (469.030). A transfer subject to
revocation by the transferor would not be a transfer (469.040). Each
separate interest in property could be disclaimed or accepted (469.050). A
power over property (e.g. power to transfer) would be considered an interest
in such property (469.060). A contingent future interest could be disclaimed
within nine months after all beneficiaries of such interest have been
identified (469.070). In the case of a vested interest created by a transfer
prior to 1977, such interest would be subject to disclaimer for a reasonable
time after the disclaimant became aware of the transfer (469.090). In the
case of a transfer made after 1976 that creates a vested interest in a person
under age 21, such interest would be subject to disclaimer within nine months
after such person's 21st birthday (469.100). This chapter would not limit
other property rights under other statutes or common law (469.110) and would
be effective with respect to any disclaimer made after August 13, 1982
(469.120).
This legislation is not federally mandated, would not duplicate any other
program and would not require additional capital improvements or rental
space.
SOURCES OF INFORMATION
Office of State Courts Administrator
Office of the Attorney General
Department of Social Services
Department of Revenue
Department of Mental Health
This Fiscal Note is not an official copy and should not be quoted or cited.