Frequently Asked Questions: Powers of Attorney

Misty A. Watson

Misty A. Watson




Co-authored by Misty Watson & Patrick Murphy.

What is a power of attorney?

  • A power of attorney appoints a person to act as an agent for the person who executes the document. An agent is authorized to act for another person to the extent that the document permits. The acts of the agent (also known as the attorney-in-fact) will legally bind the person who granted him or her the power to act.
  • Powers of attorney come in a variety of forms. There are two major types of powers of attorney: financial and healthcare. These powers can be combined into one document, but are frequently separate documents.
  • Financial powers of attorney can be effective immediately or become effective upon the incapacitation or disability of the person who executed the power of attorney.
  • Powers of attorney can also be limited to a certain period of time or last until they are revoked by the person who executed the power of attorney.

What is a durable power of attorney?

  • A durable power of attorney remains effective during such periods of time that the individual who executed the document is considered incompetent.
  • A durable power of attorney must be designated as such in the title.
  • Specific wording must be used for a power of attorney to last during any period of time the person who signed the document is considered incompetent.

Who can execute a power of attorney?

  • A power of attorney can be executed by anyone over the age of eighteen. The person signing the power of attorney must have the ability to understand the document he or she is signing.
  • In cases where a person is diagnosed with an illness that may limit his or her cognitive function, a doctor’s report stating that the person is capable of understanding the document may be required by the attorney drafting the document.

Who may be appointed as the agent under a power of attorney?

  • The agent may be any adult who is competent to act. The agent is often a family member or close friend. Typically, one person is appointed as an agent with one or more persons appointed as backup agents if the first person cannot act. The agent is not required to live in the same state.
  • Under Missouri law, the following persons cannot serve as the agent:
    • The individual’s attending physician or employee of the attending physician unless the individual and the agent are closely related.
    • An owner, operator or employee of a health care facility in which the individual is a resident.
    • No person or corporation licensed as a facility by the Missouri Department of Mental Health or the Missouri Department of Social Services, nor any administrator, owner, operator, manager or employee of such a facility may be appointed as an agent unless closely related.
    • No full-time judge of any court of this state and no clerk, deputy clerk or division clerk shall be appointed as agent unless closely related.
    • No one under 18 may serve as an agent.
    • No incapacitated or disabled person may serve as agent.
    • No “habitual drunkard” may serve as agent.

How can a Power of Attorney be revoked?

  • The death of the individual who granted the power of attorney revokes the document.
  • The individual who granted the power of attorney can revoke the power of attorney either orally or in writing. A written revocation is recommended.

If a Power of Attorney is over 10 years old is it still effective?

  • Yes. It is recommended that the power of attorney be reviewed by an attorney every five years to determine if any changes in the law have occurred. For powers of attorney that were enacted before the HIPAA changes, the document may not be effective to release the necessary medical records to make an informed healthcare decision.

If a Power of Attorney grants the agent the authority to take any and all actions on behalf of the individual are there any powers that are not covered?

  • Certain powers must be specifically listed in the power of attorney in order for the agent to act on the individual’s behalf. These powers are:
    • The authority to execute, amend, or revoke a trust;
    • The authority to fund a trust not created by the individual with the individual’s assets;
    • The authority to make a gift from the individual’s assets or to revoke a gift of the individual;
    • The authority to disclaim a gift or inheritance to the individual;
    • The authority to change the beneficiary or survivor interest of the individual’s assets;
    • The authority to give consent to an autopsy or postmorten exam;
    • The authority to make a gift of the individual’s body;
    • The authority to nominate a guardian or principal for the individual;
    • The authority to give consent to or decline any type of health care, medical care, treatment or procedure; or
    • The authority to direct the withholding or withdrawal of artificially supplied nutrition or hydration.
  • A power of attorney may not grant the following powers:
    • The authority to make, amend, or revoke a will on behalf of the individual;
    • The authority to execute, amend, or revoke a living will declaration of the individual;
    • The authority to require the individual to take any action or refrain from any action against his or her will; or
    • The authority to take any action specifically forbidden by the individual during any period the individual is competent.

If you have been appointed as an agent under a power of attorney must you serve as agent?

  • No, before serving as agent it is recommended you consult with an attorney to fully understand the duties imposed by serving.

Who should be appointed as an agent under the power of attorney?

  • The choice of an agent is often difficult and should be done only in connection with consultation of legal counsel. The agent should be trustworthy and capable of understanding the nature of his or her duties.

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