DURABLE FINANCIAL POWER OF ATTORNEY
(Delaware – 12 Del. C. § 49A-101 et seq.)
[// GUIDANCE: This template is drafted to comply with the Delaware Uniform Power of Attorney Act (“DUPOAA”), 12 Del. C. § 49A-101 et seq. Customize bracketed items, delete guidance comments prior to execution, and confirm all statutory citations against the most recently published Delaware Code.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Operative Provisions
- Representations & Warranties
- Covenants & Restrictions
- Default & Remedies
- Risk Allocation
- Dispute Resolution
- General Provisions
- Execution Block
1. DOCUMENT HEADER
1.1 Title. Durable Financial Power of Attorney (“Power of Attorney” or “POA”).
1.2 Parties.
(a) “Principal”: [PRINCIPAL FULL LEGAL NAME], residing at [ADDRESS].
(b) “Agent”: [PRIMARY AGENT FULL LEGAL NAME], residing at [ADDRESS].
(c) “Successor Agent(s)” (if any): [NAME(S) AND PRIORITY ORDER].
1.3 Recitals.
(a) Principal desires to grant Agent authority over Principal’s property and financial affairs pursuant to the DUPOAA.
(b) This POA is intended to be durable and shall not be affected by the Principal’s subsequent incapacity (§ 49A-102(2)).
(c) Consideration. The mutual promises herein constitute good and valuable consideration.
1.4 Effective Date & Jurisdiction. This POA is effective on [EFFECTIVE DATE] and is governed by Delaware law.
2. DEFINITIONS
For ease of reference, capitalized terms have the meanings set forth below (alphabetical). Cross-references are to sections of this POA unless otherwise stated.
“Accountings” ……………………………………… 6.4
“Agent” ………………………………………………… 1.2(b)
“Assets Under Management Cap” …………… 7.2(b)
“Dissolution Event” ………………………………… 6.1(a)(iii)
“DUPOAA” ………………………………………… Title Reference
“Fiduciary Standard” ……………………………… 5.1
“Limited Arbitration” ……………………………… 8.3
“Principal” …………………………………………… 1.2(a)
“Revocation Notice” ……………………………… 6.2(a)
[// GUIDANCE: Add or delete defined terms as needed; maintain alphabetical order.]
3. OPERATIVE PROVISIONS
3.1 General Grant of Authority. Principal hereby grants Agent every power authorized under 12 Del. C. § 49A-201 through § 49A-204, subject to the limitations herein.
3.2 Specific Powers. Without limiting the foregoing, Agent may:
(a) Banking—Open, close, and manage deposit accounts;
(b) Investments—Buy, sell, or pledge securities;
(c) Real Property—Acquire, convey, lease, or encumber real estate;
(d) Personal Property—Buy, sell, or lease tangible property;
(e) Business Interests—Operate, manage, or dissolve entities;
(f) Taxes—Prepare, sign, and file returns;
(g) Government Benefits—Apply for and manage benefits;
(h) Digital Assets—Access and control digital assets (§ 49A-204(c));
(i) [ADDITIONAL OR RESTRICTED POWERS].
3.3 Hot Powers Requiring Express Authority (§ 49A-204). Principal affirmatively authorizes the Agent to:
(a) Create, amend, or revoke a trust;
(b) Make gifts up to the federal annual exclusion per donee;
(c) Change beneficiary designations on non-probate assets;
(d) Delegate authority granted herein.
3.4 Springing Activation (if applicable). If “Springing” is selected below, this POA becomes effective only upon a written determination of incapacity signed by [TWO LICENSED PHYSICIANS / ONE PHYSICIAN & ONE PSYCHOLOGIST].
☐ Immediate ☐ Springing
3.5 Co-Agents. If more than one Agent is named, they shall act:
☐ Jointly ☐ Severally ☐ Majority
3.6 Compensation. Agent shall be reimbursed for reasonable expenses and may receive compensation at [RATE OR METHOD]; any disputed amount is subject to § 8.3 Limited Arbitration.
4. REPRESENTATIONS & WARRANTIES
4.1 By Principal.
(a) Capacity. Principal is of sound mind and not under duress.
(b) Ownership. Principal owns or controls the assets subject to this POA.
4.2 By Agent. Agent warrants that:
(a) Agent is at least 18 years old and not disqualified under § 49A-105;
(b) Agent accepts fiduciary duties imposed by the DUPOAA and this POA;
(c) Agent is not presently in bankruptcy or subject to any guardianship.
4.3 Survival. All representations and warranties survive revocation as to acts taken during the term of this POA.
5. COVENANTS & RESTRICTIONS
5.1 Fiduciary Standard. Agent shall act:
(a) In good faith;
(b) Within the scope of authority;
(c) In the Principal’s best interest; and
(d) With the care an ordinarily prudent person would exercise (§ 49A-114).
5.2 Record-Keeping. Agent shall maintain contemporaneous records of all transactions for no less than six (6) years after each transaction (§ 49A-114(c)).
5.3 Notice Obligations. Agent must notify Principal in writing within fifteen (15) days of:
(a) Change of address;
(b) Commencement of bankruptcy;
(c) Any actual or threatened litigation involving Agent’s actions under this POA.
5.4 Restricted Transactions. Agent may not:
(a) Self-deal, except for reasonable compensation or reimbursement;
(b) Make loans to Agent or Agent’s relatives;
(c) Create joint tenancy with Agent unless expressly permitted above.
5.5 Compliance. Agent shall comply with all applicable federal, state, and local laws, including securities, tax, and privacy regulations.
6. DEFAULT & REMEDIES
6.1 Events of Default. Any of the following constitutes an “Event of Default”:
(i) Breach of Fiduciary Standard;
(ii) Misappropriation of funds;
(iii) Agent’s death, incapacity, or bankruptcy (“Dissolution Event”).
6.2 Revocation & Suspension.
(a) Principal may revoke this POA by delivering a written Revocation Notice to Agent and third parties relying on this POA (§ 49A-110).
(b) Upon an Event of Default, any interested person may petition the Delaware Court of Chancery for suspension or termination (§ 49A-116).
6.3 Cure Period. If curable, Agent has ten (10) days after notice to cure the default. Failure to cure permits immediate termination.
6.4 Accountings. Upon written demand by Principal, a fiduciary, or a court, Agent must render a complete accounting within thirty (30) days.
6.5 Remedies. In addition to termination, Principal retains:
(a) Surcharge for losses;
(b) Injunctive relief;
(c) Recovery of attorneys’ fees and costs.
7. RISK ALLOCATION
7.1 Indemnification. Principal shall indemnify Agent against third-party claims arising from lawful acts performed under this POA, except for acts constituting gross negligence, willful misconduct, or breach of fiduciary duty.
7.2 Limitation of Liability.
(a) Agent’s liability to Principal is limited to direct damages proven by clear and convincing evidence.
(b) Aggregate liability shall not exceed the total Assets Under Management Cap at the time of the breach.
7.3 Insurance. Agent shall maintain [ERRORS & OMISSIONS / FIDUCIARY] insurance with minimum limits of $[AMOUNT].
7.4 Force Majeure. Agent is excused from performance for events beyond reasonable control (e.g., natural disasters, government actions), but shall use commercially reasonable efforts to resume performance.
8. DISPUTE RESOLUTION
8.1 Governing Law. This POA is governed by the laws of the State of Delaware without regard to conflict-of-laws principles.
8.2 Forum Selection. Exclusive jurisdiction lies in the Court of Chancery sitting as the Probate Court for [COUNTY], Delaware.
8.3 Limited Arbitration. Monetary disputes not exceeding $[THRESHOLD] shall be submitted to binding arbitration under the Delaware Rapid Arbitration Act. Equitable claims and fiduciary accounting disputes remain in court.
8.4 Jury-Trial Waiver. To the extent permitted by Delaware law, the parties knowingly and voluntarily waive trial by jury for any action arising out of this POA.
8.5 Injunctive Relief. Nothing in this Article limits the Principal’s or a court-appointed fiduciary’s right to seek injunctive or equitable relief for breach of fiduciary duty.
9. GENERAL PROVISIONS
9.1 Amendment & Waiver. Only Principal may amend this POA by a writing signed and acknowledged with the same formalities as this POA. No waiver of any provision constitutes a continuing waiver.
9.2 Assignment & Delegation. Agent may delegate authority only as expressly authorized in § 3.3(d) and remains responsible for delegate’s conduct.
9.3 Successors & Assigns. This POA binds and benefits Principal, Agent, their respective heirs, successors, and permitted assigns.
9.4 Severability. If any provision is held unenforceable, the remainder shall be reformed to carry out the Principal’s intent to the maximum extent permitted by law.
9.5 Integration. This POA constitutes the entire agreement on the subject matter, superseding all prior powers of attorney except as expressly preserved.
9.6 Counterparts; Electronic Signatures. This POA may be executed in counterparts and by electronic signature, each treated as an original.
10. EXECUTION BLOCK
IN WITNESS WHEREOF, the Principal has executed this Durable Financial Power of Attorney as of the Effective Date set forth above.
10.1 Principal
[PRINCIPAL NAME], Principal
Date: ______
10.2 Witness
I, the undersigned adult witness, affirm that the Principal appeared to be of sound mind and free from duress at the time of signing and that the Principal affirmed the foregoing instrument.
[WITNESS NAME], Witness
Date: ______
10.3 Agent’s Acknowledgment (§ 49A-105(c))
I, [AGENT NAME], have read the attached Power of Attorney and accept appointment as Agent. I understand and will act in accordance with my fiduciary duties under Delaware law.
[AGENT NAME], Agent
Date: ______
10.4 Notary Acknowledgment
State of Delaware )
County of ____ ) SS:
On this ___ day of _, 20_, before me, the undersigned Notary Public, personally appeared ____, known or satisfactorily proven to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged that he/she executed the same for the purposes therein contained.
Notary Public
My Commission Expires: __
[// GUIDANCE: Have the Principal distribute copies of any executed Revocation Notice to all persons and institutions that received this POA. Recordation is not required under Delaware law, but may be advisable for real-estate transactions.]