§8.7 Who Can Be a Principal?

LibraryElder Law Deskbook (2023 Ed.)

A. (§8.7) Who Can Be a Principal?

The statute contains no definition of who can be a principal.

At a minimum, the requirements would seem to include having reached the age of 18 or being emancipated. Section 431.055, RSMo 2016, governing contracts, states that a person becomes competent at age 18 (with limited exceptions).

Additionally, a principal must have the capacity to execute the document. In Couch v. Couch, 824 S.W.2d 65 (Mo. App. W.D. 1991), the court invalidated a durable power of attorney on the ground that the principal did not have the capacity to execute the document when the document was executed. The court in Keyser v. Keyser, 81 S.W.3d 164 (Mo. App. W.D. 2002), relied on the Couch ruling and invalidated a durable power of attorney because the principal lacked capacity when she executed it as she did not understand the significance of her execution.

Although, as noted in §8.1 above, incapacity is statutorily defined, no statute in the Missouri Durable Power of Attorney Law or under the Probate Code, as to the making of a will, provides a definition of capacity. Section 474.310, RSMo 2016, simply requires a person to be of “sound mind” to make a will, and § 456.4-402, RSMo 2016, requires a settlor to have capacity to create a trust but does not define the term.


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