HCS/SCS/SB 265 - This act makes various changes to Missouri's Durable Power of Attorney Law. The main intent of this law is to clarify the extent of an attorney in fact's power to act on behalf of his principal. This act also creates a new chapter (Chapter 469) relating to disclaimers. The disclaimer provisions are taken from SB 163.

DURABLE POWERS OF ATTORNEY: An attorney in fact who is granted general powers is not limited to the powers enumerated in the power of attorney instrument. An attorney in fact with general powers has the power to act for the principal with respect to property held jointly by the principal. Such attorney in fact also has the power to agree to indemnify a third person from liability for acting or failing to act at the request of such attorney. However, a third party who honors the power of attorney for actions outside the scope of the attorney in fact's authority shall not be protected by such indemnity agreement. An attorney in fact who has provided an indemnity agreement to a third party is not required to provide a bond if the attorney or principal has lived in the state for at least two years. An attorney in fact may be granted the power to designate a successor.

An attorney in fact has 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 shall be liable to the principal for damages caused and may 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 may suspend or modify the power of attorney to restrict the power of such attorney. The court may also appoint a different attorney in fact after notice is given to immediate relatives of the principal and other interested parties.

A power of attorney that expires on the death of the principal shall not expire if such attorney is authorized to make a gift of the principal's body parts or consent to an autopsy of the principal.

A third person may rely on, and has no duty to inquire as to, any act taken by an attorney in fact, including any act which may constitute a breach of such attorney's duty.

If no attorney in fact is available to act, the court may appoint an individual or financial institution to act as a successor attorney in fact rather than appoint a guardian or conservator. The court shall first provide notice to immediate relatives of the principal and other interested parties before making such appointment, except the court may make a temporary appointment in the event of an emergency.

If a power of attorney is executed by a non-Missouri resident, such power may be exercised according to the law which gives the attorney in fact the most discretion to act.

DISCLAIMERS: Any individual who has a property interest may disclaim all or a part of such interest. A disclaimed interest passes directly to the disclaimant's heirs or takers and may not be reached by creditors of the disclaimant (469.010).

A disclaimer is made in writing and must be delivered within 9 months after a transfer is made to the transferor or the transferor's representative (469.020). Acceptance of a transfer precludes any later disclaimer. A disclaimer or acceptance may be made by a person's representative (469.030). Each separate interest in property may be disclaimed or accepted (469.050).

A transfer subject to revocation by the transferor is not a transfer (469.040).

A power over property (ex. power to transfer) is considered an interest in such property (469.060).

A contingent future interest may be disclaimed within 9 months after all beneficiaries of such interest have been identified (469.070). In the case of a per stirpes distribution or vesting, a prior or subsequent disclaimer does not change the stocks that are used as the basis for the division of property (469.080).

In the case of a vested interest created by a transfer prior to 1977, such interest is subject to disclaimer for a reasonable time after the disclaimant is 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 is subject to disclaimer within 9 months after such person's 21st birthday (469.100).

This chapter does not limit other property rights under other statutes or common law (469.110) and is effective with respect to any disclaimer made after August 13, 1982 (469.120).

The current section relating to disclaimers, set out in Section 474.490, RSMo, is repealed.

Section 456.520, RSMo: A trustee is given the power to divide any trust into separate trusts.

JAMES KLAHR