DURABLE FINANCIAL POWER OF ATTORNEY
(Maine – 18-C M.R.S. § 5-901 et seq.)
[// GUIDANCE: This template is drafted for use under the Maine Uniform Power of Attorney Act (“the Act”), Title 18-C of the Maine Revised Statutes, Article 5, Part 9. Verify all bracketed information, adjust optional clauses, and attach referenced schedules before execution.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Operative Provisions
3.1 Appointment & Durability
3.2 Grant of Authority – General Powers
3.3 Grant of Authority – Specific “Hot Powers”
3.4 Special Instructions & Limitations - Representations, Warranties & Fiduciary Duties
- Covenants of the Agent
- Default & Remedies
- Risk Allocation
7.1 Indemnification
7.2 Limitation of Liability - Dispute Resolution
- Revocation & Termination Procedures
- General Provisions
- Execution Block
- Notarial Acknowledgment
- Agent’s Certification & Acceptance
1. DOCUMENT HEADER
This Durable Financial Power of Attorney (the “Power of Attorney” or “POA”) is made effective as of [EFFECTIVE DATE] (the “Effective Date”) by and between:
• Principal: [PRINCIPAL FULL LEGAL NAME], residing at [PRINCIPAL ADDRESS] (“Principal”); and
• Agent: [PRIMARY AGENT FULL LEGAL NAME], residing at [AGENT ADDRESS] (“Agent”).
Recitals
A. Principal desires to appoint Agent to act on Principal’s behalf with respect to the management of Principal’s financial and property interests, as authorized under the Act.
B. Principal intends that this POA be durable, remaining in effect notwithstanding Principal’s subsequent incapacity.
2. DEFINITIONS
“Act” – the Maine Uniform Power of Attorney Act, 18-C M.R.S. § 5-901 et seq.
“Assets Under Management” – all assets subject to the Agent’s authority at any given time.
“General Authority” – the baseline powers described in Section 3.2.
“Hot Powers” – the powers requiring express authorization under § 5-941 of the Act and enumerated in Section 3.3.
“Successor Agent” – any individual designated in Section 3.1(b) to serve if the primary Agent is unable or unwilling to act.
3. OPERATIVE PROVISIONS
3.1 Appointment & Durability
(a) Appointment. Principal hereby appoints Agent as Principal’s attorney-in-fact to exercise the powers granted herein.
(b) Successor Agent(s). If the Agent resigns, is removed, becomes incapacitated, or is otherwise unable to serve, the following individuals shall serve, in the order listed, as Successor Agent(s): [SUCCESSOR #1], then [SUCCESSOR #2].
(c) Durability. Pursuant to 18-C M.R.S. § 5-902, this POA is durable and shall not be affected by Principal’s incapacity.
3.2 Grant of Authority – General Powers
Unless limited by Section 3.4, Agent is granted authority to act with respect to each of the following subject matters (initial each power granted):
[ ] Real Property
[ ] Tangible Personal Property
[ ] Stocks & Bonds
[ ] Commodities & Options
[ ] Banking & Other Financial Institutions
[ ] Operation of Entity or Business
[ ] Insurance & Annuities
[ ] Estates, Trusts & Beneficiaries
[ ] Claims & Litigation
[ ] Personal & Family Maintenance
[ ] Government Benefits
[ ] Retirement Plans
[ ] Taxes
[// GUIDANCE: Initial only those categories the Principal wishes to grant. Un-initialed categories are withheld.]
3.3 Grant of Authority – Specific “Hot Powers”
Pursuant to 18-C M.R.S. § 5-941, the following powers require explicit authorization. Principal must SIGN or INITIAL next to each power granted:
_ Create, amend, revoke, or terminate an inter vivos trust
Make a gift
Create or change rights of survivorship
_ Create or change beneficiary designations
Delegate authority granted under this POA
Waive the Principal’s right to be a beneficiary of a joint and survivor annuity
_ Exercise fiduciary powers the Principal has authority to delegate
___ Disclaim or refuse an interest in property
3.4 Special Instructions & Limitations
[PLACEHOLDER FOR SPECIAL INSTRUCTIONS, E.G., GIFT CAP, TAX PLANNING, OR LIMITATION ON REAL ESTATE TRANSACTIONS]
4. REPRESENTATIONS, WARRANTIES & FIDUCIARY DUTIES
4.1 Principal’s Capacity. Principal affirms that, as of the Effective Date, Principal has capacity to execute this POA.
4.2 Agent’s Eligibility. Agent represents that Agent is not disqualified under Maine law from serving and will comply with the duties in § 5-914 of the Act, including:
(a) Act in accordance with Principal’s reasonable expectations;
(b) Act in Principal’s best interest;
(c) Act in good faith; and
(d) Act only within the scope of authority granted.
4.3 Record-Keeping. Agent shall maintain records of all transactions conducted on Principal’s behalf and shall provide accountings upon written request of Principal, a court, or other authorized person.
5. COVENANTS OF THE AGENT
(a) Confidentiality. Agent shall keep the Principal’s personal and financial information confidential except as disclosure is required to carry out duties or mandated by law.
(b) Cooperation. Agent shall cooperate with any guardian, conservator, or fiduciary appointed for the Principal.
(c) Notice of Incapacity. Agent shall notify any Successor Agent and relevant third parties if Agent becomes unable to act.
6. DEFAULT & REMEDIES
6.1 Events of Default. Any of the following shall constitute an event of default by Agent:
(i) Breach of fiduciary duty under the Act;
(ii) Misappropriation or self-dealing;
(iii) Failure to maintain adequate records; or
(iv) Violation of any limitation in Section 3.4.
6.2 Cure Period. Principal, or any interested person under § 5-903(5), may provide written notice specifying the alleged default. Agent shall have [15] days to cure, unless the default is incapable of cure.
6.3 Remedies. Upon default and failure to cure, the Principal or interested person may (a) revoke Agent’s authority, (b) seek declaratory, injunctive, or accounting relief in the Maine Probate Court, and/or (c) pursue damages, including attorneys’ fees pursuant to Section 8.3.
7. RISK ALLOCATION
7.1 Indemnification
Agent shall indemnify and hold harmless the Principal and Principal’s estate from any loss, liability, or expense arising from Agent’s breach of fiduciary duty or willful misconduct.
7.2 Limitation of Liability
Agent’s aggregate liability for monetary damages shall not exceed the fair market value of the Assets Under Management at the time the cause of action accrues; provided, however, this cap shall not apply to damages resulting from Agent’s gross negligence, intentional misconduct, or fraud.
8. DISPUTE RESOLUTION
8.1 Governing Law. This POA shall be governed by, and construed in accordance with, the laws of the State of Maine, without regard to conflict-of-laws principles.
8.2 Forum Selection. The parties consent to exclusive jurisdiction in the [COUNTY] Probate Court of the State of Maine for actions seeking equitable relief or interpretation under the Act.
8.3 Limited Arbitration. Monetary claims not exceeding [$100,000] shall be resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, held in [CITY, MAINE]. The arbitrator shall have authority to award attorneys’ fees consistent with Section 6.3.
8.4 Jury Waiver. To the extent permitted by Maine law, the parties knowingly waive trial by jury for any dispute arising under this POA; provided, however, such waiver shall not apply where prohibited by 14 M.R.S. § 1503.
8.5 Injunctive Relief. Nothing in this Section limits the right of the Principal or an interested person to seek temporary, preliminary, or permanent injunctive relief in court to prevent irreparable harm.
9. REVOCATION & TERMINATION PROCEDURES
9.1 Principal’s Revocation. Principal may revoke this POA at any time by:
(a) A written instrument signed by Principal, acknowledged before a notary public, and delivered to Agent; and
(b) Notice of revocation to all known third parties relying on the POA.
9.2 Statutory Termination. This POA terminates automatically upon the earliest of:
(i) Principal’s death;
(ii) Revocation under Section 9.1;
(iii) Complete termination of authority per 18-C M.R.S. § 5-907; or
(iv) Revocation by a court of competent jurisdiction.
9.3 Recording. If this POA is relied upon to convey an interest in real property, it shall be recorded in the appropriate Registry of Deeds.
10. GENERAL PROVISIONS
10.1 Amendments. This POA may be amended only by a signed, notarized writing executed by the Principal.
10.2 Severability. If any provision is held invalid, the remaining provisions shall remain in full force.
10.3 Successors & Assigns. This POA is binding on the Principal, Principal’s heirs and assigns, Agent, and Agent’s successors.
10.4 Counterparts; Electronic Signatures. This POA may be executed in multiple counterparts, each deemed an original. Electronic signatures are valid to the fullest extent permitted by 10 M.R.S. § 9401 et seq.
10.5 Integration. This document constitutes the entire agreement between the parties regarding the subject matter and supersedes all prior powers of attorney except those expressly preserved herein.
11. EXECUTION BLOCK
IN WITNESS WHEREOF, the Principal has executed this Durable Financial Power of Attorney as of the Effective Date.
Principal:
[PRINCIPAL NAME]
Date: _______
[// GUIDANCE: Maine law does not require witnesses, but obtaining two disinterested witnesses strengthens enforceability.]
Agent Acknowledgment:
I, the undersigned Agent, accept appointment and agree to act in accordance with the terms of this POA and the Act.
[AGENT NAME]
Date: _______
12. NOTARIAL ACKNOWLEDGMENT
State of Maine
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 this instrument, and acknowledged that he/she executed the same for the purposes therein contained.
Notary Public, State of Maine
My Commission Expires: ____
13. AGENT’S CERTIFICATION & ACCEPTANCE (Optional but Recommended)
I certify that I have read the attached Durable Financial Power of Attorney, and I hereby accept my fiduciary duties and obligations as Agent under 18-C M.R.S. § 5-914. I understand that I am liable for any breach of those duties.
[AGENT NAME], Agent
Date: _______
[// GUIDANCE:
1. File original, deliver copies to Agent and Successor Agent(s).
2. Provide certified copies to financial institutions.
3. Consider recording at Registry of Deeds if real property powers are granted.
4. Review periodically, particularly after major life events or statutory amendments.]