Powers of Attorney in Missouri

Overview

Sources

• MO Rev Stat § 404.700
• MO Rev Stat § 442.360

Compliance

• Can agents prepare?

Forms

• Statutory Durable POA
• Common Law Form (property specific)

Searching

• POAs are recorded in the Public Land Records Office in each county.

Examination

• In Missouri, Powers of Attorney that are used in connection with real property transactions must be recorded. MO Rev Stat § 442.360. Any failure to record a Power of Attorney that is used in connection with a real estate transaction should be raised as a possible missing interest due to lack of capacity.

Curative

• Any curative statutes or MIA provisions?
• Any rule for removing missing interests due to a lack of recording POA after X years?

Underwriting

A Power of Attorney can be approved to use in a transaction for title insurance purposes as long as it conforms to the following:

• Must be in recordable form. (properly executed, witnessed, and acknowledged)
• Must enumerate power to engage in the proposed transaction. (explicitly stated or incorporated by reference to statute)
• Must be durable. (for durable POAs only must state that it can be used in case of incapacity of Principal)
• Cannot be more than three (3) months old. (for transaction specific POAs only)
• Principal must be unavailable. (sick, infirm, travelling, incapacitated)
• Use of POA for transaction must be independently verified with Principal to the extent possible. Third party representation by doctor's note required in the case of incapacitated individuals.

Requirement Language

• In the event any party to the transaction contemplates the use of a Power of Attorney, the Company requires submission of the Power of Attorney no less than three (3) days prior to closing for approval. (WFG Version)
• If any party to the settlement intends to use a Power of Attorney at settlement, a copy of such Power of Attorney must be submitted for review in advance of settlement. Failure to comply with this requirement may result in the postponement of the settlement. Acceptability of the Power of Attorney for purposes of completion of settlement is within the discretion of the insurer. (other)

Recording

• Durable POAs must be recorded.
• Property specific POAs must be recorded and include the legal description.

Pricing

• Can agents charge for preparing or recording POAs?

Self-Dealing

Missouri law prohibits a POA from being used for self-dealing unless expressly authorized by the POA.

Cross-References

• Missouri
• Powers of Attorney

Missouri has a durable power of attorney law. (Section 404.700 Missouri Revised Statutes) It provides that the authority of the attorney-in-fact does not terminate in the event that the principal becomes disabled or incapacitated. If the power of attorney is to be used for the conveyance of real estate, it must be recorded in the county in which the real estate is located, and a legal description needs to be attached to the power of attorney.

Attorney-in-fact

An "attorney-in-fact" is defined by statute as being an individual or corporation appointed to act as agent of a principal in a written power of attorney. (Section 404.7030 Missouri Revised Statutes)

Durable powers

Missouri has a statute based upon the Uniform Durable Power of Attorney Act. (Section 404.700 Missouri Revised Statutes)

Recording

A power of attorney, which is used to convey real estate, must be recorded in the county in which the real estate is located. A legal description of the real estate to be conveyed must be attached to the power of attorney. There is no requirement for recording an affidavit along with any instrument recorded. There is no case law to establish the proposition that recording an affidavit that the attorney-in-fact is not aware of any revocation of the power or the death of the principal establishes a presumption that the exercise of the power was valid.

MO Rev Stat § 442.360.

Powers of attorney, how acknowledged and proved.

442.360. Every letter of attorney or other instrument containing a power to convey real estate, as agent or attorney for the owner thereof, or to execute, as agent or attorney for another, any instrument in writing conveying real estate, or whereby real estate may be affected in law or equity, shall be acknowledged or proved, and certified and recorded, as other instruments in writing conveying or affecting real estate are required to be acknowledged or proved and certified and recorded.