DURABLE FINANCIAL POWER OF ATTORNEY
(North Dakota – Comprehensive Form)
[// GUIDANCE: This template is drafted to comply with the North Dakota Uniform Power of Attorney framework and related fiduciary standards. Practitioners should confirm the most current statutory citations before finalizing.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Appointment & Grant of Authority
- Durable Nature; Effective Date & Termination
- Enumerated Powers of Agent
- Special Instructions & Limitations
- Acceptance, Fiduciary Duties & Standards of Conduct
- Liability Allocation; Indemnification; Caps
- Reliance & Protection of Third Parties
- Revocation Procedures
- Nomination of Guardian/Conservator (Optional)
- Dispute Resolution
- General Provisions
- Execution Block & Notarial Certificate
1. DOCUMENT HEADER
1.1 Title.
DURABLE POWER OF ATTORNEY FOR FINANCIAL MATTERS
1.2 Parties.
(a) “Principal”: [NAME] of [ADDRESS].
(b) “Agent”: [PRIMARY AGENT NAME] of [ADDRESS].
(c) “Alternate Agent(s)” (if any): [ALTERNATE AGENT NAME(S)].
1.3 Recitals.
WHEREAS, the Principal desires to appoint the Agent to act on the Principal’s behalf with respect to financial and property interests; and
WHEREAS, North Dakota law authorizes a principal to confer such authority through a written power of attorney that remains effective notwithstanding the principal’s subsequent incapacity;
NOW, THEREFORE, the Principal executes this Durable Power of Attorney (the “Power”) on the terms below.
1.4 Effective Date. [SELECT ONE]
☐ Upon execution.
☐ Upon written determination of incapacity by [ONE/TWO] licensed physician(s).
2. DEFINITIONS
For purposes of this Power, capitalized terms have the meanings set forth below and apply throughout this document unless the context clearly requires otherwise.
“Agent” – The individual(s) designated in Section 1.2(b) and any Successor or Co-Agent acting under Section 3.
“Durable” – Remaining in force notwithstanding the Principal’s incapacity.
“Fiduciary Duty” – The duties of loyalty, prudence, and good faith imposed on an Agent under North Dakota law and this Power.
“Hot Powers” – Authorities that must be expressly granted, including (i) creating or modifying beneficiary designations; (ii) making gifts; (iii) delegating authority; (iv) creating or amending trusts; and (v) disclaiming property.
“ND Act” – The North Dakota Uniform Power of Attorney Act, as amended.
“Successor Agent” – Any person named in Section 1.2(c) who may act upon the initial Agent’s resignation, incapacity, or unwillingness to serve.
3. APPOINTMENT & GRANT OF AUTHORITY
3.1 Appointment. The Principal appoints the Agent as attorney-in-fact to act for the Principal to the fullest extent permitted under the ND Act and this Power.
3.2 Multiple Agents. [SELECT ONE]
☐ Agents to act JOINTLY.
☐ Agents to act SEVERALLY.
3.3 Successor Agent Activation. A Successor Agent may act only upon written certification that all prior-listed Agents are unable or unwilling to serve.
4. DURABLE NATURE; EFFECTIVE DATE & TERMINATION
4.1 Durable Status. This Power is durable and shall not be affected by the Principal’s incapacity, except as provided by law.
4.2 Commencement. Authority commences on the Effective Date chosen in Section 1.4.
4.3 Termination Events. This Power terminates upon the earliest to occur of:
(a) Death of the Principal;
(b) Revocation under Section 10;
(c) Judicial termination; or
(d) [DATE/EVENT].
5. ENUMERATED POWERS OF AGENT
Subject to Section 6, the Agent is granted authority to engage in any lawful act concerning the Principal’s property and financial affairs, including:
5.1 Real Property. Acquire, sell, lease, encumber, manage, and convey real estate interests.
5.2 Tangible Personal Property. Buy, sell, exchange, or pledge personal property.
5.3 Banking & Financial Transactions. Open, close, and operate accounts; endorse instruments; access safe-deposit boxes.
5.4 Business Operations. Manage, operate, or terminate an entity or business in which the Principal holds an interest.
5.5 Investments & Securities. Buy, sell, exchange, and manage stocks, bonds, mutual funds, and other securities.
5.6 Claims & Litigation. Commence, defend, settle, or arbitrate claims.
5.7 Tax Matters. Prepare, sign, and file federal, state, and local tax returns and related documents.
5.8 Personal & Family Maintenance. Provide for the Principal’s dependents and customary living expenses.
5.9 Governmental Benefits. Apply for and manage Social Security, Medicare, Medicaid, and veteran benefits.
5.10 Digital Assets. Access, manage, and transfer digital accounts and electronic communications to the extent permitted by law.
5.11 Hot Powers. [INITIAL EACH GRANTED POWER]
_ Make or change beneficiary designations.
Create, amend, or revoke revocable trusts.
__ Make gifts not exceeding $[AMOUNT] per donee per calendar year.
_ Delegate authority to another person.
___ Disclaim or renounce property interests.
[// GUIDANCE: Under ND law, Hot Powers must be affirmatively authorized—initial lines permit selective grant.]
6. SPECIAL INSTRUCTIONS & LIMITATIONS
6.1 Prohibited Acts. The Agent may not:
(a) Execute a will for the Principal;
(b) Vote in public elections on behalf of the Principal;
(c) Exercise a fiduciary power the Agent holds in an individual capacity unless expressly authorized above;
(d) Engage in self-dealing other than reasonable compensation and expense reimbursement.
6.2 Compensation. [SELECT]
☐ Agent shall serve without compensation, except for reimbursement of reasonable expenses.
☐ Agent shall be compensated at $[RATE] per hour or other agreed rate.
6.3 Record-Keeping. The Agent shall maintain contemporaneous records of all receipts, disbursements, and transactions made on behalf of the Principal.
7. ACCEPTANCE, FIDUCIARY DUTIES & STANDARDS OF CONDUCT
7.1 Acceptance. By signing the Agent Acknowledgment in Section 14, the Agent accepts appointment and assumes Fiduciary Duties.
7.2 Fiduciary Standard. The Agent shall act:
(a) In good faith;
(b) Within the scope of authority;
(c) In the Principal’s best interest, considering the Principal’s known objectives and personal values; and
(d) With reasonable care, competence, and diligence.
7.3 Delegation. The Agent may delegate authority only if expressly granted in Section 5.11 and must exercise reasonable care in selecting and supervising any delegate.
8. LIABILITY ALLOCATION; INDEMNIFICATION; CAPS
8.1 Good-Faith Safe Harbor. An Agent acting in good faith under this Power shall not be liable to the Principal or the Principal’s estate for any act or omission, except for willful misconduct or gross negligence.
8.2 Indemnification by Agent. The Agent shall indemnify and hold harmless the Principal’s estate against losses arising from the Agent’s breach of Fiduciary Duty.
8.3 Liability Cap. Agent’s aggregate liability shall not exceed the fair market value of Principal’s assets under the Agent’s direct management at the time the cause of action arises.
[// GUIDANCE: The liability cap is aligned with the “assets_under_management” parameter in the request.]
9. RELIANCE & PROTECTION OF THIRD PARTIES
9.1 Reliance. Any third party may rely upon the authenticity of this Power or a certified copy and may assume the existence of valid authority absent actual knowledge of termination.
9.2 Hold-Harmless. Third parties accepting instructions from the Agent in good faith shall be released from liability to the extent permitted by the ND Act.
10. REVOCATION PROCEDURES
10.1 Method. The Principal may revoke this Power at any time by:
(a) A written instrument signed by the Principal and notarized; or
(b) Physical destruction of all executed originals and written notice delivered to the Agent and any relevant third parties.
10.2 Effectiveness. Revocation becomes effective upon actual receipt by the Agent.
10.3 Recordation (Real Property). If this Power has been recorded, a written Revocation shall likewise be recorded in the same office.
11. NOMINATION OF GUARDIAN / CONSERVATOR (Optional)
In the event a court determines that a guardian or conservator is necessary, the Principal nominates:
• [NAME], [ADDRESS], [RELATIONSHIP] as Guardian of the Person;
• [NAME], [ADDRESS], [RELATIONSHIP] as Guardian of the Estate / Conservator.
12. DISPUTE RESOLUTION
12.1 Governing Law. This Power is governed by the laws of the State of North Dakota (“Governing Law”).
12.2 Forum Selection. Exclusive venue for judicial proceedings shall lie in the [COUNTY] Probate Court of North Dakota, except as provided in Section 12.3.
12.3 Limited Arbitration.
(a) Any dispute between Principal (or Principal’s estate) and Agent concerning accounting or reimbursement under $[[CEILING AMOUNT]] shall be resolved by binding arbitration administered by [ARBITRATION SERVICE] in [CITY], North Dakota.
(b) The arbitrator shall apply the Governing Law and may award injunctive relief consistent with Section 12.4.
12.4 Injunctive Relief. The Probate Court retains jurisdiction to issue temporary or permanent injunctions to enforce fiduciary obligations notwithstanding arbitration.
12.5 Jury Waiver. To the fullest extent permitted, the parties waive trial by jury only for claims subject to arbitration under Section 12.3.
13. GENERAL PROVISIONS
13.1 Amendment. The Principal may amend this Power only by a later-dated, notarized writing explicitly referring to this document.
13.2 Severability. If any provision is held invalid, the remainder shall continue in full force.
13.3 Electronic Signatures & Counterparts. This Power may be signed in counterparts and delivered electronically; all counterparts constitute one instrument.
13.4 Integration. This document constitutes the entire durable financial power of attorney between the Principal and Agent, superseding all prior grants as to financial matters.
14. EXECUTION BLOCK & NOTARIAL CERTIFICATE
14.1 Principal’s Signature
______ Date: ______
[PRINCIPAL NAME], Principal
14.2 Agent Acknowledgment
I, [AGENT NAME], accept the appointment as Agent, acknowledge my Fiduciary Duties under the ND Act and this Power, and agree to act in the Principal’s best interest.
______ Date: ______
[AGENT NAME], Agent
(Repeat for each Co-Agent / Successor Agent)
14.3 Notary Public
State of North Dakota )
County of ____ ) ss.
On this _ day of _, 20__, before me, the undersigned Notary Public, personally appeared [PRINCIPAL NAME] (and [AGENT NAME] if acknowledged concurrently), known to me or satisfactorily proven to be the person(s) whose name(s) are subscribed to this instrument, and acknowledged that he/she/they executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public for the State of North Dakota
My Commission Expires: _____
[// GUIDANCE:
1. Recordation is optional but advisable if real property powers will be exercised.
2. Confirm physician-determination language aligns with client preference when using springing powers.
3. Review “Hot Powers” selections with the client to avoid unintended tax or estate consequences.
4. Practitioners should attach a statutory “Agent’s Certification” form if routinely requested by financial institutions.]