DURABLE FINANCIAL POWER OF ATTORNEY
(Nebraska Uniform Power of Attorney Act – Neb. Rev. Stat. § 30-4001 et seq.)
[// GUIDANCE: This template is drafted for use under Nebraska law. Review and customize all bracketed placeholders and elective provisions before execution.]
TABLE OF CONTENTS
I. Document Header
II. Definitions
III. Operative Provisions
IV. Representations & Warranties
V. Covenants & Restrictions
VI. Default & Remedies
VII. Risk Allocation
VIII. Dispute Resolution
IX. General Provisions
X. Execution Block
I. DOCUMENT HEADER
1.1 Title and Parties
This Durable Financial Power of Attorney (this “Instrument”) is executed as of [EFFECTIVE DATE] (the “Effective Date”) by [PRINCIPAL LEGAL NAME], residing at [PRINCIPAL ADDRESS] (the “Principal”), in favor of [AGENT LEGAL NAME], residing at [AGENT ADDRESS] (the “Agent”).
1.2 Recitals
A. Principal desires to designate Agent to act on Principal’s behalf with respect to financial and property matters.
B. Principal intends this Instrument to be durable and to remain in effect notwithstanding Principal’s subsequent incapacity, pursuant to the Nebraska Uniform Power of Attorney Act (the “Act”).
1.3 Consideration
The mutual promises contained herein constitute sufficient consideration for this Instrument.
1.4 Governing Jurisdiction
This Instrument is governed by and shall be construed in accordance with the laws of the State of Nebraska.
II. DEFINITIONS
For purposes of this Instrument, capitalized terms have the meanings set forth below. Any term not defined herein but defined in the Act shall have the meaning ascribed to it in the Act.
“Accounting Records” – Defined in Section V.1.
“Act” – The Nebraska Uniform Power of Attorney Act, Neb. Rev. Stat. § 30-4001 et seq.
“Assets Under Management” – All property, accounts, and rights subject to Agent’s authority under this Instrument at any given time.
“Durable” – Having effect notwithstanding the Principal’s incapacity.
“Incidental Powers” – All powers reasonably necessary to effectuate the specific powers granted herein.
“Protected Person” – The Principal while incapacitated.
“Revocation Instrument” – A written instrument executed by the Principal revoking this Instrument in accordance with Section VI.4.
III. OPERATIVE PROVISIONS
3.1 Appointment of Agent
Principal hereby appoints Agent as Principal’s true and lawful attorney-in-fact to act in Principal’s name and stead, with the powers enumerated in Section 3.3.
3.2 Durability
This Instrument is durable and shall not be affected by Principal’s incapacity.
3.3 Grant of Authority
Subject to the limitations in Section 3.4, Agent is granted authority to perform all acts the Principal could perform with respect to property, financial, and business matters, including without limitation the following statutory categories:
a. Real property transactions
b. Tangible personal property transactions
c. Banking and other financial institution transactions
d. Business operating transactions
e. Insurance and annuity transactions
f. Estate, trust, and beneficiary transactions
g. Claims and litigation
h. Personal and family maintenance
i. Benefits from governmental programs
j. Retirement plan transactions
k. Tax matters
3.4 Specific/Hot Powers (Elective – Strike if not desired)
Pursuant to the Act, the following powers require express authorization and are granted [SELECT: “Yes” / “No”]:
- Make gifts in excess of annual federal gift-tax exclusion – [ ]
- Create, amend, revoke, or terminate an inter vivos trust – [ ]
- Change beneficiary designations – [ ]
- Create or change rights of survivorship – [ ]
- Delegate authority granted under this Instrument – [ ]
- Disclaim property or powers of appointment – [ ]
[// GUIDANCE: Nebraska requires affirmative selection for each “hot power.”]
3.5 Successor & Co-Agents
a. Successor Agent: [SUCCESSOR AGENT NAME]; b. Co-Agents act [jointly/severally].
3.6 Acceptance by Agent
Agent accepts appointment by either executing this Instrument or exercising authority with actual knowledge of the appointment.
3.7 Reliance by Third Parties
Any person may rely on a notarized copy of this Instrument and on any certification executed by Agent pursuant to § 30-4020 of the Act.
IV. REPRESENTATIONS & WARRANTIES
4.1 Principal
a. Legal Capacity: Principal is of sound mind and over eighteen (18) years of age.
b. Ownership: Principal owns or controls the property subject to this Instrument.
4.2 Agent
a. Eligibility: Agent is eligible to serve and not disqualified under the Act.
b. Fiduciary Duty: Agent understands and accepts the fiduciary obligations imposed by the Act and this Instrument.
4.3 Survival
The representations and warranties in this Article IV survive revocation, resignation, or termination as to acts taken during the term of this Instrument.
V. COVENANTS & RESTRICTIONS
5.1 Record-Keeping
Agent shall maintain contemporaneous records of all receipts, disbursements, and transactions (“Accounting Records”) and shall produce such records to Principal, a court of competent jurisdiction, or other authorized persons upon reasonable request.
5.2 Fiduciary Standards
Agent shall:
a. Act in good faith and within the scope of authority granted;
b. Act loyally for the Principal’s benefit;
c. Act with care, competence, and diligence ordinarily exercised by agents in similar circumstances;
d. Keep the Principal’s property separate from Agent’s own, except as permitted by § 30-4023 of the Act.
5.3 Notice of Incapacity or Resignation
Agent shall give written notice to the Successor Agent and any relevant financial institutions within ten (10) days of Agent’s resignation or knowledge of Principal’s death.
5.4 Restrictions on Self-Dealing
Agent shall not engage in self-dealing transactions unless expressly authorized in Section 3.4 or in a separate written instrument signed by the Principal after the date hereof.
VI. DEFAULT & REMEDIES
6.1 Events of Default
The following constitute Events of Default:
a. Agent’s breach of fiduciary duty;
b. Misappropriation or commingling of Principal’s assets;
c. Failure to maintain Accounting Records;
d. Loss of legal capacity of Agent without timely succession;
e. Conviction of Agent for a crime involving dishonesty.
6.2 Notice & Cure
Upon an Event of Default, any interested person may serve written notice on Agent describing the default. Agent has fifteen (15) days to cure, unless the default is incapable of cure.
6.3 Graduated Remedies
If the default remains uncured, the Principal (or fiduciary acting on Principal’s behalf) may:
a. Suspend or revoke Agent’s authority;
b. Seek injunctive relief in the state probate court;
c. Recover damages, including reasonable attorney’s fees;
d. Seek appointment of a conservator or guardian.
6.4 Revocation Procedures
Principal may revoke this Instrument by:
a. Executing a Revocation Instrument acknowledged before a notary public;
b. Executing a subsequent power of attorney that expressly revokes this Instrument; or
c. Physically destroying all executed originals with intent to revoke.
Revocation is effective upon actual notice to Agent.
VII. RISK ALLOCATION
7.1 Indemnification
Agent shall indemnify and hold harmless the Principal, Principal’s estate, and heirs from any loss, liability, or expense (including attorney’s fees) arising from Agent’s breach of fiduciary duty.
7.2 Limitation of Liability
Agent’s monetary liability under this Instrument is capped at the value of the Assets Under Management at the time the loss is incurred, except for losses resulting from willful misconduct or gross negligence.
7.3 Insurance (Optional)
Agent [shall/need not] procure and maintain fiduciary liability insurance with limits not less than [$____], naming the Principal as an additional insured.
7.4 Force Majeure
Agent is excused from performance during any period in which performance is prevented by events beyond Agent’s reasonable control, provided Agent takes reasonable steps to mitigate the effect of such events.
VIII. DISPUTE RESOLUTION
8.1 Governing Law
This Instrument and all disputes arising hereunder are governed by the laws of the State of Nebraska without regard to conflict-of-laws principles.
8.2 Forum Selection
The Nebraska county probate court having jurisdiction over the Principal’s domicile shall have exclusive jurisdiction for equitable or fiduciary relief.
8.3 Limited Arbitration
Monetary claims not exceeding [$____] shall be submitted to binding arbitration administered by [ARBITRATION ADMINISTRATOR] in accordance with its expedited rules. Equitable relief and claims exceeding such amount are not subject to arbitration.
8.4 Jury Waiver
To the fullest extent permitted by applicable law, the parties waive the right to a jury trial for any claim subject to arbitration under Section 8.3. No waiver applies to claims heard in probate court.
8.5 Injunctive Relief Preservation
Nothing in this Article VIII limits the right of the Principal or other interested persons to seek injunctive or declaratory relief in probate court to address breaches of fiduciary duty.
IX. GENERAL PROVISIONS
9.1 Amendments & Waivers
No amendment or waiver of any provision of this Instrument is effective unless in writing and acknowledged before a notary by the Principal (or by a court of competent jurisdiction).
9.2 Assignment & Delegation
Agent may not assign rights or delegate duties except as expressly permitted in Section 3.4 and the Act.
9.3 Successors & Assigns
This Instrument binds and benefits the Principal, Agent, and their respective successors, assigns, heirs, and personal representatives.
9.4 Severability
If any provision is held invalid, the remaining provisions remain in full force, and a court may reform the Instrument to effectuate the Principal’s intent.
9.5 Integration
This Instrument constitutes the entire understanding concerning the subject matter and supersedes all prior powers of attorney except as expressly stated.
9.6 Counterparts
This Instrument may be executed in one or more counterparts, each of which is deemed an original.
9.7 Electronic Signatures
Electronic signatures and electronically notarized acknowledgments are permitted if compliant with Neb. Rev. Stat. § 64-418 et seq. and any applicable federal law.
X. EXECUTION BLOCK
10.1 Principal
[PRINCIPAL NAME], Principal
Date: _____
State of Nebraska )
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 (s)he executed the same for the purposes therein contained.
(SEAL)
Notary Public
My commission expires: ____
10.2 Agent Acknowledgment & Acceptance
I, [AGENT NAME], have read the foregoing Durable Financial Power of Attorney, understand the duties imposed on me by the Act and this Instrument, and hereby accept appointment as Agent.
[AGENT NAME], Agent
Date: _____
10.3 Successor Agent (Optional)
I, [SUCCESSOR AGENT NAME], acknowledge my designation as Successor Agent and accept such designation effective upon the occurrence of the conditions precedent specified herein.
[SUCCESSOR AGENT NAME], Successor Agent
Date: _____
[// GUIDANCE: File or store executed originals in a secure location, and provide copies to the Agent, Successor Agent, and key financial institutions. Consider recording a certified copy with the register of deeds if real property powers will be exercised.]