DURABLE FINANCIAL POWER OF ATTORNEY
(New York)
[// GUIDANCE: This template tracks the structure of N.Y. Gen. Oblig. Law art. 5, tit. 15 (McKinney) and incorporates the 2021 statutory amendments requiring (a) principal acknowledgment, (b) two disinterested witnesses, and (c) separate Agent Acceptance. Customize bracketed items and confirm execution formalities before use.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Operative Provisions
- Representations & Warranties
- Covenants & Restrictions
- Default & Remedies
- Risk Allocation
- Dispute Resolution
- General Provisions
- Execution Block (Principal)
- Agent’s Acceptance
- Statutory Disclosure Statements
- Revocation & Termination Notice
1. DOCUMENT HEADER
1.1 Title; Parties.
This Durable Financial Power of Attorney (“Power of Attorney” or “Agreement”) is executed on [EFFECTIVE DATE] (“Effective Date”) by [PRINCIPAL LEGAL NAME], residing at [PRINCIPAL ADDRESS] (“Principal”), appointing [AGENT LEGAL NAME], residing at [AGENT ADDRESS] (“Agent”), with [SUCCESSOR AGENT NAME(S)] as successor agent(s), collectively “Parties.”
1.2 Consideration.
In consideration of the mutual promises herein and for other good and valuable consideration, the sufficiency of which is acknowledged, Principal grants to Agent the authorities set forth below.
1.3 Governing Law & Jurisdiction.
This instrument is governed by, and construed in accordance with, Title 15 of Article 5 of the New York General Obligations Law (“NY POA Law”) and other applicable New York law.
2. DEFINITIONS
Alphabetically arranged for ease of reference:
“Accounting” – A written record of all receipts, disbursements, and significant transactions undertaken by Agent on behalf of Principal.
“Assets Under Management” – The aggregate fair-market value of all Principal property subject to Agent’s authority at any given time.
“Dispute” – Any claim, controversy, or cause of action arising out of or relating to this Power of Attorney, including its formation, interpretation, performance, or enforcement.
“Durable” – Having continuing effect notwithstanding Principal’s subsequent incapacity, per NY POA Law.
“Fiduciary Duty” – The duty of loyalty, care, good faith, and full disclosure owed by Agent to Principal under NY POA Law.
“Forum” – The [INSERT COUNTY] Surrogate’s Court of the State of New York, or as otherwise provided herein.
“Major Asset Transaction” – Any single transaction or series of related transactions exceeding [DOLLAR THRESHOLD] or involving an interest in real property.
“State Probate Court” – For purposes of this document, the New York Surrogate’s Court having subject-matter jurisdiction.
3. OPERATIVE PROVISIONS
3.1 Appointment & Grant of Authority.
Subject to the limitations herein, Principal hereby appoints Agent as lawful attorney-in-fact to act for Principal with respect to the following matters (collectively, “Granted Powers”):
a. Banking transactions
b. Real and personal property transactions
c. Business operations
d. Tax matters
e. Insurance and annuity transactions
f. Claims and litigation
g. Personal and family maintenance
h. Digital assets management
i. All other matters customarily encompassed within a broad financial power of attorney, except as expressly limited herein.
[// GUIDANCE: If narrower authority is desired, delete or limit specific categories above.]
3.2 Durability.
This Power of Attorney is DURABLE and shall not be affected by Principal’s incapacity or incompetence.
3.3 Commencement.
The authority of Agent commences on the Effective Date [OR: upon certification of incapacity by two licensed physicians].
3.4 Limitations.
1. Self-dealing is prohibited absent express written consent of Principal or court approval.
2. Agent may not make or revoke wills or codicils.
3. Gifts exceeding the annual federal gift-tax exclusion per donee require contemporaneous written consent by [INDEPENDENT MONITOR].
4. REPRESENTATIONS & WARRANTIES
4.1 By Principal.
a. Principal is at least 18 years old and of sound mind.
b. Execution complies with NY POA Law.
c. All information supplied herein is accurate and complete.
4.2 By Agent (upon acceptance).
a. Agent is at least 18 years old and not disqualified from serving under NY POA Law.
b. Agent accepts fiduciary obligations and will act solely in Principal’s best interests.
c. Agent possesses the skill and competence reasonably necessary to carry out the Granted Powers.
4.3 Survival.
All representations and warranties shall survive acceptance and remain in effect until termination of this Power of Attorney.
5. COVENANTS & RESTRICTIONS
5.1 Affirmative Covenants of Agent.
a. Act prudently and in good faith.
b. Segregate Principal’s property from Agent’s own.
c. Maintain contemporaneous records and furnish an Accounting upon written request or annually, whichever occurs first.
d. Preserve and protect Principal’s assets.
5.2 Negative Covenants of Agent.
a. No commingling of funds.
b. No delegation of authority except to a licensed professional adviser, and only as reasonably necessary.
c. No waiver of fiduciary duty.
5.3 Notice Obligations.
Agent shall notify Principal (or, if incapacitated, the successor Agent or a court-appointed guardian) within ten (10) days of:
i. Any Major Asset Transaction;
ii. Any conflict of interest that arises;
iii. The initiation of any litigation involving Principal’s property.
5.4 Cure Periods.
Agent shall have ten (10) days following written notice of a breach to cure, except breaches involving willful misconduct or misappropriation, which are incurable.
6. DEFAULT & REMEDIES
6.1 Events of Default.
a. Breach of fiduciary duty;
b. Failure to provide an Accounting when due;
c. Insolvency or bankruptcy of Agent;
d. Incapacity of Agent;
e. Court determination of misconduct.
6.2 Remedies.
1. Immediate suspension or termination of Agent’s authority.
2. Appointment of Successor Agent.
3. Injunctive relief in the Forum to freeze or recover Assets Under Management.
4. Recovery of damages, including reasonable attorneys’ fees and costs.
5. Any other relief available at law or in equity.
7. RISK ALLOCATION
7.1 Indemnification.
Agent shall indemnify and hold harmless Principal from third-party claims arising out of Agent’s breach of Fiduciary Duty or willful misconduct.
7.2 Limitation of Liability.
Agent’s aggregate liability to Principal shall not exceed the lesser of (i) the total Assets Under Management at the time of the act or omission giving rise to liability, or (ii) actual damages proved, except in cases of gross negligence, fraud, or willful misconduct, for which no cap shall apply.
7.3 Insurance.
Agent shall maintain errors & omissions coverage in an amount not less than [AMOUNT].
7.4 Force Majeure.
Agent is excused from performance to the extent hindered by events beyond reasonable control, provided Agent gives prompt notice and uses commercially reasonable efforts to mitigate.
8. DISPUTE RESOLUTION
8.1 Governing Law.
New York law governs.
8.2 Forum Selection.
Exclusive jurisdiction lies with the State Probate Court (Surrogate’s Court, [COUNTY]), except as to matters delegated to arbitration below.
8.3 Limited Arbitration.
Financial disputes not exceeding [ARBITRATION THRESHOLD] shall be submitted to binding arbitration under the Commercial Rules of the American Arbitration Association. Equitable relief, fiduciary removal, or matters exceeding the threshold remain with the Forum.
8.4 Jury Waiver.
To the fullest extent permitted by law, the Parties waive trial by jury for arbitrable disputes. The waiver is inapplicable where prohibited by NY Estates, Powers & Trusts Law or other mandatory provisions.
8.5 Injunctive Relief Preservation.
Nothing herein limits the right of any Party to seek temporary, preliminary, or permanent injunctive relief in the Forum to protect principal assets or enforce fiduciary obligations.
9. GENERAL PROVISIONS
9.1 Amendments. Must be in writing, signed, acknowledged by Principal, and witnessed as required under NY POA Law.
9.2 Waiver. No waiver is binding unless in writing; a single waiver is not a continuing waiver.
9.3 Assignment. Agent may not assign delegation of authority except as expressly permitted in Section 5.2(b).
9.4 Successors & Assigns. This Power of Attorney binds and benefits the Parties and their lawful successors.
9.5 Severability. Any invalid provision is severed; the remainder remains enforceable.
9.6 Integration. This document constitutes the entire agreement regarding the Granted Powers and supersedes all prior POAs unless expressly preserved in Section 13.
9.7 Counterparts & Electronic Signatures. Executed in any number of counterparts, including electronic signatures compliant with E-SIGN and NY State Technology Law § 304.
10. EXECUTION BLOCK (PRINCIPAL)
IN WITNESS WHEREOF, Principal has executed this Durable Financial Power of Attorney on the Effective Date.
[PRINCIPAL LEGAL NAME], Principal
State of New York )
County of _ ) ss.:
On the _ day of _, 20__, before me, the undersigned, a Notary Public in and for said state, personally appeared [PRINCIPAL LEGAL NAME], personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same in his/her capacity, and that by his/her signature on the instrument, the individual executed the instrument.
Notary Public
Witness #1: _____ Date: _
(Print Name & Address)
Witness #2: _____ Date: _
(Print Name & Address)
[// GUIDANCE: Notary may serve as one witness; witnesses must be disinterested and not named as Agent or successor.]
11. AGENT’S ACCEPTANCE
I, [AGENT LEGAL NAME], understand and accept the appointment as Agent and acknowledge my fiduciary duties under NY POA Law.
[AGENT LEGAL NAME], Agent
State of New York )
County of _ ) ss.:
On the _ day of _, 20__, before me, the undersigned, a Notary Public in and for said state, personally appeared [AGENT LEGAL NAME] …
Notary Public
12. STATUTORY DISCLOSURE STATEMENTS
12.1 Caution to the Principal
(Insert exactly the statutory “Caution to the Principal” text as set forth in NY POA Law.)
12.2 Important Information for the Agent
(Insert exactly the statutory “Important Information for the Agent” text.)
[// GUIDANCE: The quoted statutory language must appear verbatim immediately before each respective signature block to preserve statutory safe-harbor status.]
13. REVOCATION & TERMINATION NOTICE
13.1 Voluntary Revocation. Principal may revoke this Power of Attorney at any time by (a) executing a written revocation, acknowledged and witnessed per NY POA Law, and (b) delivering the revocation to Agent and all known third parties relying on this instrument. If the original Power of Attorney was recorded, the revocation must likewise be recorded.
13.2 Automatic Termination. This Power of Attorney terminates upon the earliest of:
a. Principal’s death;
b. Principal’s revocation;
c. Judicial invalidation;
d. Agent’s resignation, incapacity, or death with no available Successor Agent;
e. Execution of a subsequent power of attorney expressly revoking prior authorities.
13.3 Third-Party Reliance. No third party shall incur liability for acting in reliance on this Power of Attorney without actual notice of revocation or termination.
[// GUIDANCE: Attach a separate “Agent’s Certification” form if frequent certification to financial institutions is anticipated.]
END OF DOCUMENT