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Title XXVI TRADE AND COMMERCE

Chapter 404

Effective - 28 Aug 2006 bottom

  404.550.  Duties and powers of personal custodian, directions of beneficiary, court's powers, contract with beneficiary. — 1.  The personal custodian shall collect, hold, maintain, manage, invest and reinvest the custodial property.  The personal custodian may accept a transfer of additional property for the same beneficiary into the personal custodianship and may consolidate into a single custodianship custodial property received for the same beneficiary from multiple transfers or transferors.

  2.  The personal custodian shall deliver, pay over to the beneficiary for expenditure by the beneficiary or expend for the beneficiary's benefit so much of the custodial property as the beneficiary may from time to time direct.  If the beneficiary is an incapacitated person, the personal custodian may deliver, pay over to the beneficiary for expenditure by the beneficiary or expend for the beneficiary's benefit so much of the custodial property as the personal custodian determines advisable for the use and benefit of the beneficiary and those members of the beneficiary's family who are legally entitled to support by the beneficiary or who were supported by the beneficiary at the time the beneficiary became incapacitated, without court order and without regard to the duty or ability of the personal custodian in the personal custodian's individual capacity or of any other person to support the beneficiary, or any other income or property of the beneficiary.

  3.  (1)  Upon the petition of the beneficiary, guardian or conservator of an incapacitated beneficiary, an adult member of a beneficiary's family or any person interested in the welfare of the beneficiary, the court may order the personal custodian to expend or to pay over to the beneficiary or the beneficiary's guardian or conservator so much of the custodial property as the court determines advisable for the use and benefit of the beneficiary.

  (2)  Upon petition of a personal custodian, the beneficiary, an adult member of the beneficiary's family or any person interested in the welfare of the beneficiary, the probate division of the circuit court shall determine and declare whether the beneficiary is a disabled or incapacitated person.

  4.  Any delivery, payment or expenditure under subsections 2 and 3 of this section is in addition to, not in substitution for, and does not affect the obligation of any person to support the incapacitated beneficiary or the incapacitated beneficiary's dependents.

  5.  The personal custodian is under a duty to act in the interest of the beneficiary and to avoid conflicts of interest that impair the personal custodian's ability to so act.  In dealing with the custodial property, the personal custodian shall follow the investment and other directions of a beneficiary who is not incapacitated and shall observe the degree of care that would be observed by a prudent person dealing with the property and conducting the affairs of another, except that all investments made on or after August 28, 1998, shall be in accordance with the provisions of the Missouri prudent investor act, sections 469.900 to 469.913. The personal custodian is not limited by any other statute restricting investments or expenditures by fiduciaries.  If the personal custodian has special skills or is named personal custodian on the basis of representation of special skills or expertise, the custodian is under a duty to use those skills.  The personal custodian, in the custodian's discretion and without liability to the beneficiary or the beneficiary's estate, may retain any custodial property received under sections 404.400 to 404.650, and may hold money or securities in the financial institution or brokerage company to which the property was delivered by the transferor.

  6.  The personal custodian may invest in and pay premiums out of custodial property for life or endowment insurance policies on the life of the beneficiary or the life of another person in whom the beneficiary has an insurable interest, provided the insurance proceeds will be distributed on the death of the insured life to the beneficiary, the persons designated by an adult nonincapacitated beneficiary, the beneficiary's estate or the personal custodian in the personal custodian's representative capacity.

  7.  Subject to the degree of care prescribed in subsection 5 of this section, the personal custodian, acting in the capacity of personal custodian for the benefit of the beneficiary, has all rights, power and authority over the custodial property that unmarried, nonincapacitated adult owners have over their own property, except the power to make a gift of the beneficiary's property (i) unless granted such power by a nonincapacitated beneficiary in a writing signed and dated, and acknowledged or proved and certified in the manner provided by law for conveyances of real estate, or (ii) unless the gift to be made is approved by a court under section 475.094.

  8.  The personal custodian at all times shall keep custodial property separate and distinct from all other property in a manner to identify it clearly as custodial property of the beneficiary.  Custodial property consisting of an undivided interest in property is sufficiently separate and distinct if the personal custodian's interest in the property is held as a tenant in common with the other owners of the property and the beneficiary's proportional interest in the property is fixed.  Custodial property is sufficiently so identified if it is held in the name of the personal custodian in the manner prescribed in section 404.540.

  9.  The personal custodian may establish checking, savings or other similar accounts with financial institutions and brokers whereby both the personal custodian and the beneficiary may withdraw money from the account or draw or issue checks or drafts against the account.  Money withdrawn from an account or checks written against an account by the beneficiary shall be treated as a delivery of custodial property from the personal custodian to the beneficiary.

  10.  Subject to the degree of care prescribed in subsection 5 of this section, the personal custodian, acting in the capacity of personal custodian and for the benefit of the beneficiary, may borrow money, lend money, acquire by lease the use of property for the beneficiary, lease custodial property and enter into contracts under which the performance required by such agreements may extend beyond the date the personal custodianship terminates.  The personal custodian shall hold property that is borrowed or leased for the beneficiary as custodial property in the name of the personal custodian in the manner prescribed in section 404.540.

  11.  The personal custodian shall keep records of all transactions with respect to the custodial property, including information necessary for preparation of the beneficiary's tax returns, and make them available for inspection at reasonable intervals by the beneficiary, an adult member of the beneficiary's family if the beneficiary is incapacitated, and a legal representative of the beneficiary.

  12.  The power, authority, duties and responsibilities of a personal custodian, as provided in sections 404.400 to 404.650, may be modified by the provisions of a written agreement between the transferor or beneficiary and personal custodian.

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(L. 1986 S.B. 651 § 6 subsecs. 1 to 4, 6 to 13, A.L. 1989 H.B. 145, A.L. 1998 H.B. 1571, A.L. 2006 S.B. 892)


---- end of effective   28 Aug 2006 ----

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