404.710. Power of attorney with general powers.
Power of attorney with general powers.
404.710. 1. A principal may delegate to an attorney in fact in apower of attorney general powers to act in a fiduciary capacity on theprincipal's behalf with respect to all lawful subjects and purposes or withrespect to one or more express subjects or purposes. A power of attorneywith general powers may be durable or not durable.
2. If the power of attorney states that general powers are granted tothe attorney in fact and further states in substance that it grants powerto the attorney in fact to act with respect to all lawful subjects andpurposes or that it grants general powers for general purposes or does notby its terms limit the power to the specific subject or purposes set out inthe instrument, then the authority of the attorney in fact acting under thepower of attorney shall extend to and include each and every action orpower which an adult who is nondisabled and nonincapacitated may carry outthrough an agent specifically authorized in the premises, with respect toany and all matters whatsoever, except as provided in subsections 6 and 7of this section. When a power of attorney grants general powers to anattorney in fact to act with respect to all lawful subjects and purposes,the enumeration of one or more specific subjects or purposes does not limitthe general authority granted by that power of attorney, unless otherwiseprovided in the power of attorney.
3. If the power of attorney states that general powers are granted toan attorney in fact with respect to one or more express subjects orpurposes for which general powers are conferred, then the authority of theattorney in fact acting under the power of attorney shall extend to andinclude each and every action or power, but only with respect to thespecific subjects or purposes expressed in the power of attorney that anadult who is nondisabled and nonincapacitated may carry out through anagent specifically authorized in the premises, with respect to any and allmatters whatsoever, except as provided in subsections 6 and 7 of thissection.
4. Except as provided in subsections 6 and 7 of this section, anattorney in fact with general powers has, with respect to the subjects orpurposes for which the powers are conferred, all rights, power andauthority to act for the principal that the principal would have withrespect to his or her own person or property, including property ownedjointly or by the entireties with another or others, as a nondisabled andnonincapacitated adult; and without limiting the foregoing has with respectto the subjects or purposes of the power complete discretion to make adecision for the principal, to act or not act, to consent or not consentto, or withdraw consent for, any act, and to execute and deliver or acceptany deed, bill of sale, bill of lading, assignment, contract, note,security instrument, consent, receipt, release, proof of claim, petition orother pleading, tax document, notice, application, acknowledgment or otherdocument necessary or convenient to implement or confirm any act,transaction or decision. An attorney in fact with general powers, whetherpower to act with respect to all lawful subjects and purposes, or only withrespect to one or more express subjects or purposes, shall have the power,unless specifically denied by the terms of the power of attorney, to make,execute and deliver to or for the benefit of or at the request of a thirdperson, who is requested to rely upon an action of the attorney in fact, anagreement indemnifying and holding harmless any third person or personsfrom any liability, claims or expenses, including legal expenses, incurredby any such third person by reason of acting or refraining from actingpursuant to the request of the attorney in fact, and such indemnityagreement shall be binding upon the principal who has executed such powerof attorney and upon the principal's successor or successors in interest.No such indemnity agreement shall protect any third person from anyliability, claims or expenses incurred by reason of the fact that, and tothe extent that, the third person has honored the power of attorney foractions outside the scope of authority granted by the power of attorney.In addition, the attorney in fact has complete discretion to employ andcompensate real estate agents, brokers, attorneys, accountants andsubagents of all types to represent and act for the principal in any andall matters, including tax matters involving the United States governmentor any other government or taxing entity, including, but not limited to,the execution of supplemental or additional powers of attorney in the nameof the principal in form that may be required or preferred by any suchtaxing entity or other third person, and to deal with any or all thirdpersons in the name of the principal without limitation. No suchsupplemental or additional power of attorney shall broaden the scope ofauthority granted to the attorney in fact in the original power of attorneyexecuted by the principal.
5. An attorney in fact, who is granted general powers for allsubjects and purposes or with respect to any express subjects or purposes,shall exercise the powers conferred according to the principal'sinstructions, in the principal's best interest, in good faith, prudentlyand in accordance with sections 404.712 and 404.714.
6. Any power of attorney, whether durable or not durable, and whetheror not it grants general powers for all subjects and purposes or withrespect to express subjects or purposes, shall be construed to grant poweror authority to an attorney in fact to carry out any of the actionsdescribed in this subsection if the actions are expressly enumerated andauthorized in the power of attorney. Any power of attorney may grant powerof authority to an attorney in fact to carry out any of the followingactions if the actions are expressly authorized in the power of attorney:
(1) To execute, amend or revoke any trust agreement;
(2) To fund with the principal's assets any trust not created by theprincipal;
(3) To make or revoke a gift of the principal's property in trust orotherwise;
(4) To disclaim a gift or devise of property to or for the benefit ofthe principal;
(5) To create or change survivorship interests in the principal'sproperty or in property in which the principal may have an interest;provided, however, that the inclusion of the authority set out in thisparagraph shall not be necessary in order to grant to an attorney in factacting under a power of attorney granting general powers with respect toall lawful subjects and purposes the authority to withdraw funds or otherproperty from any account, contract or other similar arrangement held inthe names of the principal and one or more other persons with any financialinstitution, brokerage company or other depository to the same extent thatthe principal would be authorized to do if the principal were present, notdisabled or incapacitated, and seeking to act in the principal's ownbehalf;
(6) To designate or change the designation of beneficiaries toreceive any property, benefit or contract right on the principal's death;
(7) To give or withhold consent to an autopsy or postmortemexamination;
(8) To make a gift of, or decline to make a gift of, the principal'sbody parts under the Uniform Anatomical Gift Act;
(9) To nominate a guardian or conservator for the principal; and ifso stated in the power of attorney, the attorney in fact may nominatehimself as such;
(10) To give consent to or prohibit any type of health care, medicalcare, treatment or procedure to the extent authorized by sections 404.800to 404.865; or
(11) To designate one or more substitute or successor or additionalattorneys in fact.
7. No power of attorney, whether durable or not durable, and whetheror not it delegates general powers, may delegate or grant power orauthority to an attorney in fact to do or carry out any of the followingactions for the principal:
(1) To make, publish, declare, amend or revoke a will for theprincipal;
(2) To make, execute, modify or revoke a living will declaration forthe principal;
(3) To require the principal, against his or her will, to take anyaction or to refrain from taking any action; or
(4) To carry out any actions specifically forbidden by the principalwhile not under any disability or incapacity.
8. A third person may freely rely on, contract and deal with anattorney in fact delegated general powers with respect to the subjects andpurposes encompassed or expressed in the power of attorney without regardto whether the power of attorney expressly identifies the specificproperty, account, security, storage facility or matter as being within thescope of a subject or purpose contained in the power of attorney, andwithout regard to whether the power of attorney expressly authorizes thespecific act, transaction or decision by the attorney in fact.
9. It is the policy of this state that an attorney in fact actingpursuant to the provisions of a power of attorney granting general powersshall be accorded the same rights and privileges with respect to thepersonal welfare, property and business interests of the principal, and ifthe power of attorney enumerates some express subjects or purposes, withrespect to those subjects or purposes, as if the principal himself orherself were personally present and acting or seeking to act; and anyprovision of law and any purported waiver, consent or agreement executed orgranted by the principal to the contrary shall be void and unenforceable.
10. Sections 404.700 to 404.735 shall not be construed to precludeany person or business enterprise from providing in a contract with theprincipal as to the procedure that thereafter must be followed by theprincipal or the principal's attorney in fact in order to give a validnotice to the person or business enterprise of any modification ortermination of the appointment of an attorney in fact by the principal; andany such contractual provision for notice shall be valid and binding on theprincipal and the principal's successors so long as such provision isreasonably capable of being carried out.
(L. 1989 H.B. 145 § 5, A.L. 1991 S.B. 148, A.L. 1997 S.B. 265)