Section 404.717

Title XXVI TRADE AND COMMERCE

Chapter 404

Effective - 28 Aug 2016, 2 histories   

  404.717.  Modification and termination of power of attorney — liability between principal and attorney in fact. — 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 attorney in fact, acts and transactions of the attorney in fact or successor attorney in fact undertaken in good faith, in accordance with section 404.714, and without actual knowledge of the death 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 attorney in fact 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 attorney in fact, if the attorney in fact or successor attorney in fact undertakes to act, and if in respect to such act, the attorney in fact or successor attorney in fact engages in willful misconduct or fraud or acts with willful disregard for the purposes, terms, or conditions of the power of attorney, or if the attorney in fact or successor attorney in fact 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 attorney in fact 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.

  6.  For purposes of this section, the principal's "successors in interest" shall include those persons who can prove they have been damaged as a result of the actions of the attorney in fact or successor attorney in fact, such as a conservator of the principal or a personal representative of a deceased principal.  If more than one person claims a recovery under this section the court shall determine the priority of their respective claims.

­­--------

(L. 1989 H.B. 145 § 8, A.L. 1997 S.B. 265, A.L. 2016 H.B. 1765)