Sample Durable Power of Attorney

A power of attorney is very easy to prepare and can be such an important document for your family. The following is a sample durable power of attorney. As you will see, this is a very broad power of attorney. When creating your own, you will need to decide what powers to give to the holder of the power of attorney.

DURABLE POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that I am hereby creating a Durable Power of Attorney.

That I [insert your name], of [insert city], [insert state], do hereby appoint [name the person you would like to appoint] as my attorney-in-fact for me and in my name, place and stead, and for my use and benefit to exercise all of the powers enumerated below, should I be incapacitated. If [person you named] is not reasonably available or is unable to act, then I appoint [name a successor person] as substitute or successor attorney-in-fact to serve with the same powers, in the event I am incapacitated.

I. POWERS

SECTION 1: To exercise, do, or perform any act, right, power, duty, or obligation whatsoever that I may have or may acquire the legal right, power, capacity to exercise, do, or perform in connection with, arising out of, or relating to any personal item, thing, transaction, business, business property, personal property, or real property (including my homestead), or matter whatsoever.

SECTION 2: To ask, demand, sue for, collect, and hold all sums of money, debts, bonds, notes, checks, drafts, accounts, legacies, interest, dividends, stock certificates, certificates of deposit, annuities, pension retirement benefits, insurance benefits and proceeds, and documents of title as I now have or shall hereafter become due, owing, payable, owned, or belonging to me or in which I have or may acquire any interest.

SECTION 3: To establish, utilize, and terminate accounts (including margin accounts) with security brokers; to establish, utilize, and terminate managing agency accounts with corporate fiduciaries.

SECTION 4: To establish accounts of all kinds, including checking and savings, for me with financial institutions of any kind, including but not limited to banks and thrift institutions, to modify, terminate, make deposits to and write checks on or make withdrawals from and grant security interests in all accounts in my name or with respect to which I am an authorized signatory (except accounts held by me in a fiduciary capacity), whether or not any such account was established by me or for me by my attorney-in-fact, to negotiate, endorse, or transfer any checks or other instruments with respect to any such accounts; to contract for any services rendered by any bank or financial institution.

SECTION 5: To purchase, lease, invest, exchange, assign, and acquire, and to bargain, contract, sell, agree to lease, purchase, and exchange, and take, receive, and possess any real or personal property, intangible or mixed, wherever located, including without being limited to commodities, contracts of all kinds, securities of all kinds, bonds, debentures, notes (secured or unsecured), stocks of corporations, regardless of class, interest in limited partnerships, real estate or any interest in real estate, including but not limited to my homestead, whether or not productive at the time of investment, interest in trusts, investment trusts, whether of the open and/ or closed funds types, and participation in common, collective, or pooled trust funds or annuity contracts, without being limited by any statute or rule of law concerning investments by fiduciaries, whatsoever upon such terms and conditions as my said attorney-in-fact shall deem proper and to execute any leases, deeds, conveyances, bills of sale, or other instruments of conveyance in connection with either the purchase or sale of any said property, real or personal; to make gifts to my family but not to exceed $13,000.00 to any one person per year, and to any charitable organization described in Section 170(c) and 2522(a) of the Internal Revenue Code of 1986.

SECTION 6: To improve, repair, maintain, manage, insure, rent, lease, sell, release, convey, mortgage, and hypothecate and in any way and manner deal with all or any part of any personal or real property (including my homestead), business, business property, or any other property, which I now own or may hereafter acquire.

SECTION 7: To sign, endorse, execute, acknowledge and deliver, receive and possess such contracts, agreements, options, deeds, conveyances, mortgages, security agreements, bills of sale, leases, insurance policies, documents of title, checks, drafts, certificates of deposit, notes, satisfactions of mortgages, and such other instruments in writing of whatever kind and nature as may be necessary or proper to the exercise of the rights and powers herein granted.

SECTION 8: To prepare, execute, and file any income, gift, or other tax return or claim, federal, state, or municipal, or agency thereof, specifically including Federal Income Tax Return Form 1040 for the years 2007 through 2035, for which I am responsible or to which my property is subject, and to do all things reasonably necessary with respect thereto; to pay any taxes, duties, or assessments, and collect any claims arising therefrom; to negotiate with the appropriate tax authorities, and to litigate or compromise any differences that may arise, with respect to any tax obligations.

SECTION 9: To create a Qualified Income Trust within the meaning of the Medicaid Act, or rules promulgated thereunder, and/or the Omnibus Budget Reconciliation Act as they now exist or may hereafter be amended.

SECTION 10: I grant to my said attorney-in-fact full power and authority to do and perform all and every act and thing whatsoever requisite, necessary, and proper to be done and exercise any of the rights and powers herein granted, as fully to all intents and purposes as I might or could do if personally present.

II. LIMITATION OF POWERS

Notwithstanding the powers contained in this Durable Power of Attorney, my attorney-in-fact may not:

  • Perform duties under a contract that requires the exercise of my personal services;

  • Make any affidavit as to my personal knowledge;

  • Vote in any public election on my behalf;

  • Execute or revoke any will or codicil on my behalf;

  • Create, amend, modify or revoke any documents or other disposition effective at my death or transfer assets to an existing trust created by me unless expressly authorized by this Power of Attorney; or

  • Exercise powers and authority granted to me as trustee or as a court-appointed fiduciary.

III. STANDARD OF CARE

Except as otherwise provided herein, any attorney-in-fact named herein is a fiduciary who must observe the standards of care applicable to trustees. My attorney-in-fact is not liable to third parties for any act pursuant to this Durable Power of Attorney if the act was authorized at the time. If the exercise of power is improper, my attorney-in-fact is liable to interested persons for damage or loss resulting from a breach of fiduciary duty by my attorney-in-fact to the same extent as the trustee of an express trust. If my attorney-in-fact has accepted appointment either expressly in writing or by acting under this Power, my attorney-in-fact is not excused from liability for failure either to participate in the administration of assets subject to this Power or for failure to attempt to prevent a breach of fiduciary obligations hereunder.

IV. STANDARD OF CARE LIMITATION

My attorney-in-fact shall not be liable for any acts or decisions made by him in good faith and under the terms of this Durable Power of Attorney.

V. THIRD PARTY RELIANCE

  • Any third party may rely upon the authority granted in my Durable Power of Attorney until the third party has received notice as provided herein.

  • Until a third party has received notice of revocation pursuant to the terms contained herein, partial or complete termination of this Durable Power of Attorney by adjudication of incapacity, suspension by initiation of proceedings to determine incapacity, my death, or the occurrence of an event referenced in this Durable Power of Attorney, the third party may act in reliance upon the authority granted in this Durable Power of Attorney.

  • A third party that has not received written notice hereunder may, but need not, require that my attorney-in-fact execute an affidavit stating that there has been no revocation, partial or complete termination, or suspension of this Durable Power of Attorney at the time the Power of Attorney is exercised. A written affidavit executed by my attorney-in-fact under this paragraph may, but need not, be in the form prescribed by F.S. §709.08, as amended.

  • Third parties who act in reliance upon the authority granted to my attorney-in-fact hereunder and in accordance with the instructions of the attorney-in-fact will be held harmless by me from any loss suffered or liability incurred as a result of actions taken prior to receipt of written notice of revocation, suspension, notice of a petition to determine incapacity, partial or complete termination, or my death. A person who acts in good faith upon any representation, direction, decision, or act of my attorney-in-fact is not liable to me or to my estate, beneficiaries, or joint owners for those acts.

VI. NOTICE

  • A notice, including, but not limited to, a notice of revocation, partial or complete termination, suspension, or otherwise, is not effective until written notice is served upon my attorney-in-fact or any third party relying upon this Durable Power of Attorney.

  • Notice must be in writing and served on the person or entity to be bound by such notice.

VII. DAMAGES AND COSTS

If any third party unreasonably refuses to allow my attorney-in-fact to act pursuant to this Durable Power of Attorney or challenges the proper exercise of authority of my attorney-in-fact, the prevailing party in any judicial action under the applicable section will be entitled to damages, including reasonable attorney's fees.

VIII. REVOCATION OF PRIOR INSTRUMENTS

By this instrument I hereby revoke any power of attorney, durable or otherwise, that I may have executed prior to the date of this Durable Power of Attorney.

I hereby confirm all acts of my attorney-in-fact pursuant to this Power.

Any act that is done under this Power between the revocation of this instrument and notice of that revocation to my attorney-in-fact shall be valid unless the person claiming the benefit of the act had notice of the revocation.

IX. VALIDITY AND DURATION

This Durable Power of Attorney shall not be affected by my subsequent incapacity and shall be exercisable from the date in which I have executed this Power of Attorney, notwithstanding my later disability or incapacity. All acts done by my attorney-in-fact pursuant to the powers conferred herein during any period of my disability or incapacity shall have the same effect, and inure to the benefit of and bind the principal or his or her heirs, devisees, and personal representatives as if the principal were competent and not disabled. The powers, rights, and duties conferred by this Power of Attorney upon my attorney-in-fact shall begin on the date set forth below and shall continue until my death or until it shall be revoked by me in writing.

This Durable Power of Attorney shall be nondelegable, except as to the authority to execute stock powers or similar documents on my behalf and delegate to a transfer agent or similar person the authority to register any stocks, bonds, or other securities either into or out of mine or a nominee's name, and shall be valid until such time as I shall die, revoke the Power, or shall be adjudged totally or partially incapacitated by a court of competent jurisdiction.

I may revoke this Power only by providing written notice to my attorney-in-fact. All acts of my attorney-in-fact taken or done without actual knowledge of (1) my death or (2) my revocation, are valid and effective, and are hereby ratified and confirmed.

This instrument has been executed in multiple counterpart originals. All such counterpart originals shall have equal force and effect.

IN WITNESS WHEREOF, I have set my hand and seal this ___ date.

Signed, sealed, and delivered in the presence of:

I HEREBY CERTIFY that on this day before me, an officer duly qualified to take acknowledgments, personally appeared [YOUR NAME], who is (Notary choose one) [______________] personally known to me, or [_______________] who has produced _____________ as identification, and to me known to be the person described in and who executed the foregoing instrument and acknowledged before me that he executed the same.

WITNESS my hand and official seal in the state and county aforesaid this [insert date].

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