Power of Attorney Self-Dealing

An attorney-in-fact acting for a principal under a power of attorney instrument has a legal obligation to act in the principal’s best interests. For this reason, certain powers must be expressly authorized to be valid. Section 404.710.6, RSMo provides, in part, that there must be express written authority in the power of attorney document for an attorney-in-fact to “make or revoke a gift of the principal’s property in trust or otherwise.”
In construing this requirement, Missouri courts have found that an attorney-in-fact is prohibited from making a gift of the principal’s property to himself or herself, unless the power of attorney document contains written authorization. In re Estate of Lambur, 397 S.W.3d 54, 64 (Mo. Ct. App. 2013). Furthermore, “gifts” have been interpreted broadly to include any action that would result in assets eventually going to the attorney-in-fact. The law will not honor any claims of oral authorization or approval. It must be in writing to be valid, or else the attorney-in-fact may be liable for breach of fiduciary duty.

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