DURABLE FINANCIAL POWER OF ATTORNEY
(GOVERNED BY INDIANA LAW)
[// GUIDANCE: Insert firm letterhead or leave blank for client-specific branding.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Grant of Authority & Scope of Powers
- Agent Duties & Standards of Conduct
- Limitations on Agent Liability; Indemnification
- Revocation, Suspension, and Termination
- Default & Remedies
- Dispute Resolution
- General Provisions
- Execution Block
- Acknowledgment & Notarial Certificate
- Specimen Agent Certification (Optional)
1. DOCUMENT HEADER
1.1 Title. Durable Financial Power of Attorney (the “Instrument”).
1.2 Principal. [FULL LEGAL NAME OF PRINCIPAL], residing at [ADDRESS] (the “Principal”).
1.3 Agent. [FULL LEGAL NAME OF AGENT], residing at [ADDRESS] (the “Agent”).
1.4 Alternate Agent(s). (If any) [FULL LEGAL NAME(S) OF ALTERNATE AGENT(S)].
1.5 Effective Date. This Instrument is effective
☐ Immediately upon execution; or
☐ Upon the Principal’s Incapacity (springing).
[PLACEHOLDER: Check one.]
1.6 Durability Statement. Pursuant to the Indiana Power of Attorney Act, Ind. Code tit. 30, art. 5, this power of attorney shall not be affected by the subsequent disability or incapacity of the Principal and shall continue in full force and effect until revoked or terminated as provided herein.
1.7 Governing Law; Forum. This Instrument shall be governed by the laws of the State of Indiana (“Governing Law”). Any proceeding arising hereunder shall be brought exclusively in the probate division of the [COUNTY] Circuit or Superior Court (“Forum Court”), subject to Section 8 (Dispute Resolution).
2. DEFINITIONS
Alphabetically arranged; capitalized terms have the meanings set forth below:
“Account” – Any bank, brokerage, retirement, or similar account titled in the Principal’s name, whether individually or jointly.
“Assets Under Management” – All property, monetary funds, securities, and other assets over which the Agent actually exercises authority pursuant to this Instrument.
“Durable” – Having continuing effect notwithstanding the Principal’s incapacity.
“Fiduciary Duty” – The duty of loyalty, honesty, good faith, and reasonable care imposed on the Agent under Governing Law and this Instrument.
“Incapacity” – A determination by two (2) licensed physicians, or by a court of competent jurisdiction, that the Principal is unable to manage property or financial affairs.
“Principal’s Estate Plan” – The Principal’s last will, trusts, beneficiary designations, and other dispositive instruments in effect at any given time.
3. GRANT OF AUTHORITY & SCOPE OF POWERS
3.1 General Grant. The Principal hereby appoints the Agent to act for the Principal and in the Principal’s name with respect to all matters described in this Section 3, subject to the limitations herein.
3.2 Enumerated Powers. The Agent may exercise the following powers:
a. Real Property. Buy, sell, lease, manage, and encumber real property.
b. Tangible Personal Property. Buy, sell, lease, insure, and safeguard.
c. Banking & Financial Transactions. Open, modify, or close Accounts; endorse negotiable instruments; initiate electronic funds transfers.
d. Securities & Commodities. Trade stocks, bonds, mutual funds, options, precious metals, and similar instruments.
e. Business Interests. Operate, manage, merge, or dissolve business entities in which the Principal holds an interest.
f. Retirement Plans. Contribute to, withdraw from, or reallocate assets among IRAs, 401(k)s, pensions, and similar plans.
g. Governmental Benefits. Prepare, sign, and submit claims for Social Security, Medicare, Medicaid, or veterans’ benefits.
h. Tax Matters. Prepare, sign, and file federal, state, and local tax returns; obtain extensions; represent before taxing authorities; receive refunds.
i. Digital Assets. Access, retrieve, and manage electronic communications and digital files consistent with 15 U.S.C. § 7001 and relevant state law.
j. Safe-Deposit Boxes & Vaults. Access, inventory, and control contents.
k. Gifts & Estate Planning. Make gifts not exceeding the annual federal gift-tax exclusion per donee, per calendar year, consistent with the Principal’s Estate Plan.
l. Delegation. Engage professionals and delegate ministerial acts while retaining responsibility.
[// GUIDANCE: Additional or restricted powers can be added or stricken by initialing in the left margin.]
3.3 Prohibited Actions (unless expressly authorized in writing).
a. Create, amend, or revoke the Principal’s will.
b. Make self-dealing transfers, except reasonable compensation and reimbursement per Section 5.5.
c. Change beneficiary designations benefiting the Agent, except to maintain an existing designation.
d. Make gifts exceeding the amount stated in 3.2(k).
3.4 Co-Agents. If more than one Agent is named, they shall act
☐ Jointly; ☐ Jointly & Severally. [PLACEHOLDER]
4. AGENT DUTIES & STANDARDS OF CONDUCT
4.1 Fiduciary Capacity. The Agent accepts appointment and shall act as a fiduciary for the benefit of the Principal.
4.2 Statutory Duties Incorporated. The mandatory and default duties set forth in Ind. Code tit. 30, art. 5 are incorporated herein.
4.3 Recordkeeping. Maintain complete and accurate records of all receipts, disbursements, and transactions, segregated from the Agent’s personal assets.
4.4 Consultation with Principal. When practicable, consult with the Principal and carry out the Principal’s known objectives.
4.5 Standard of Care. Exercise the care an ordinarily prudent person would use in the conduct of his or her own affairs of comparable size and complexity.
4.6 Third-Party Reliance. A recipient of a duly executed copy of this Instrument may rely on same without further inquiry as to its validity.
5. LIMITATIONS ON AGENT LIABILITY; INDEMNIFICATION
5.1 Limitation of Liability. The Agent’s aggregate monetary liability to the Principal and the Principal’s successors, arising out of or relating to this Instrument, shall not exceed the Assets Under Management at the time the cause of action accrues, except for losses resulting from the Agent’s willful misconduct or gross negligence.
5.2 Indemnification by Agent. The Agent shall indemnify and hold harmless the Principal and the Principal’s estate from damages, costs, and expenses (including reasonable attorneys’ fees) proximately caused by the Agent’s breach of Fiduciary Duty.
5.3 Indemnification by Principal. The Principal shall indemnify the Agent, to the extent of the Principal’s assets, for any third-party claims arising from good-faith acts or omissions within the scope of authority granted herein.
5.4 Insurance. At the Principal’s expense, the Agent may secure fiduciary liability insurance covering acts performed hereunder.
5.5 Compensation & Reimbursement. The Agent is entitled to
☐ No Compensation (only reimbursement of out-of-pocket expenses); or
☐ Reasonable Compensation at [RATE/METHOD].
6. REVOCATION, SUSPENSION, AND TERMINATION
6.1 Revocation by Principal. The Principal may revoke this Instrument at any time by delivering (i) a written, signed, and dated notice of revocation to the Agent and (ii) a copy to each known third party relying hereon.
6.2 Automatic Termination. This Instrument terminates upon the earliest of:
a. The Principal’s death;
b. Complete revocation pursuant to 6.1;
c. Appointment of a guardian of the Principal’s estate by a court of competent jurisdiction;
d. As to an Agent, the Agent’s resignation (Section 6.4), incapacity, or death.
6.3 Divorce or Legal Separation. If the Agent is the Principal’s spouse, this Instrument is automatically suspended upon filing for dissolution of marriage, becoming void upon entry of decree, unless the Principal re-affirms the appointment in writing thereafter.
6.4 Resignation of Agent. The Agent may resign by providing thirty (30) days’ written notice to the Principal (or, if incapacitated, to the Alternate Agent or the Forum Court).
7. DEFAULT & REMEDIES
7.1 Events of Default. The following constitute default by the Agent:
a. Breach of Fiduciary Duty;
b. Misappropriation or commingling of funds;
c. Failure to account within thirty (30) days after written demand;
d. Material violation of Governing Law or this Instrument.
7.2 Notice & Cure. The Principal (or a legal representative) shall provide written notice specifying the default. The Agent shall have fifteen (15) days to cure, unless the default is incapable of cure or involves embezzlement, fraud, or willful misconduct.
7.3 Remedies. Upon default and failure to cure, the Principal (or a successor fiduciary) may pursue:
a. Mandatory accounting;
b. Temporary restraining order or preliminary/permanent injunction;
c. Surcharge and restitution;
d. Recovery of attorneys’ fees and costs;
e. Any other remedy available at law or equity.
8. DISPUTE RESOLUTION
8.1 Governing Law. Indiana law governs all questions concerning validity, construction, and enforcement.
8.2 Forum Selection. Exclusive venue lies in the probate division of the Forum Court identified in Section 1.7.
8.3 Limited Arbitration. Monetary claims not exceeding $75,000 shall be submitted to confidential, binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), held in [COUNTY], Indiana. The arbitrator shall be an Indiana-licensed attorney with at least ten (10) years’ fiduciary-law experience. Injunctive relief and claims exceeding $75,000 remain within the Forum Court’s exclusive jurisdiction.
8.4 Jury-Trial Waiver. To the fullest extent permitted by law, each party waives trial by jury in any action relating to this Instrument; provided, however, that such waiver is inapplicable where Indiana law prohibits waiver for the particular claim asserted.
8.5 Reservation of Injunctive Relief. Nothing herein limits the Principal’s right to seek temporary, preliminary, or permanent injunctive relief for breach of Fiduciary Duty.
9. GENERAL PROVISIONS
9.1 Amendments & Waivers. Must be in a writing signed by the Principal (or a guardian/conservator appointed by a court) and acknowledged before a notary public. No oral waiver is effective.
9.2 Assignment. The Agent may not assign this appointment. Rights and obligations hereunder bind and inure to the benefit of the Principal’s heirs, executors, administrators, and permitted assigns.
9.3 Severability. If any provision is held unenforceable, the remaining provisions remain in full force, and the unenforceable provision shall be modified to the minimum extent necessary to render it enforceable.
9.4 Integration. This Instrument constitutes the entire understanding between the parties regarding the subject matter and supersedes all prior powers of attorney to the extent they grant authority over the same subject matter.
9.5 Counterparts; Electronic Signatures. May be executed in one or more counterparts, each of which is deemed an original. Facsimile, PDF, and verified electronic signatures are deemed originals for all purposes to the extent permitted by Governing Law.
10. EXECUTION BLOCK
IN WITNESS WHEREOF, the Principal has executed this Durable Financial Power of Attorney on the date indicated below.
| Principal | Date |
|---|---|
| _______ | ______ |
[// GUIDANCE: For corporate principals, add corporate resolution language and officer signature blocks.]
Agent Acceptance
The undersigned Agent hereby accepts the appointment, acknowledges Fiduciary Duty, and agrees to act in accordance with this Instrument and Governing Law.
| Agent | Date |
|---|---|
| _______ | ______ |
Alternate Agent(s) Acceptance (if any)
[Duplicate the acceptance lines above for each Alternate Agent.]
11. ACKNOWLEDGMENT & NOTARIAL CERTIFICATE
State of Indiana )
County of [__] )
On this _ day of _, 20, before me, the undersigned Notary Public, personally appeared [PRINCIPAL NAME], known to me or satisfactorily proven 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 Signature: ____
Printed Name: ____
My Commission Expires: __
County of Residence: __
(Seal)
12. SPECIMEN AGENT CERTIFICATION (Optional)
[// GUIDANCE: This short form may be presented to third parties to confirm the Agent’s current authority.]
I, [AGENT NAME], certify that I am the Agent named in the Durable Financial Power of Attorney executed by [PRINCIPAL NAME] on [DATE], that the said Power of Attorney is currently in full force and effect, and that the Principal has not revoked or limited my authority except as follows: ____.
Agent Signature: ____ Date: ___
[// GUIDANCE: Practitioners should (1) ensure the Instrument is executed in compliance with Ind. Code tit. 30, art. 5 (including acknowledgment before a notary public), (2) provide copies to financial institutions, and (3) record in county land records if real property powers will be exercised. Consider adding witness signatures where title companies require them.]