Section 404.727

Title XXVI TRADE AND COMMERCE

Chapter 404

Effective - 28 Aug 1997   

  404.727.  Accounting, determination of disability, modification and termination, limitation or removal of attorney in fact and limitations for principal to bring actions. — 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.

  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.

  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; 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.

  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.

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(L. 1989 H.B. 145 § 13, A.L. 1997 S.B. 265)