DURABLE FINANCIAL POWER OF ATTORNEY

(West Virginia – W. Va. Code § 39B-1-101 et seq.)

[// GUIDANCE: This template is drafted for use by West Virginia–licensed attorneys. All bracketed items must be customized. Confirm current statutory requirements before finalization.]

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. Title. Durable Financial Power of Attorney (this “Agreement”).
2. Date. Effective as of [EFFECTIVE DATE] (the “Effective Date”).
3. Parties.
   a. [PRINCIPAL FULL LEGAL NAME], residing at [ADDRESS] (the “Principal”); and
   b. [AGENT FULL LEGAL NAME], residing at [ADDRESS] (the “Agent”).
4. Recitals.
   a. Principal desires to delegate authority over the Principal’s property and financial affairs.
   b. This Agreement is intended to be a “power of attorney” as defined in the West Virginia Uniform Power of Attorney Act, W. Va. Code § 39B-1-102(7) (the “Act”), and to remain in effect notwithstanding the Principal’s incapacity, thereby constituting a “durable” power of attorney under § 39B-1-104.
   c. The parties intend this Agreement to be governed exclusively by West Virginia law.

II. DEFINITIONS

For purposes of this Agreement, capitalized terms have the meanings set forth below:

“Act” – the West Virginia Uniform Power of Attorney Act, W. Va. Code § 39B-1-101 et seq.

“Assets Under Management” – all property over which the Agent has authority under this Agreement at the time a cause of action arises.

“Durable” – having effect notwithstanding the Principal’s subsequent incapacity, per § 39B-1-104.

“Fiduciary Duty” – the duties set forth in § 39B-1-114 and amplified in Section V below.

“Incapacity” – inability of the Principal to manage property or business affairs as defined in § 39B-1-102(5), evidenced in the manner described in Section III.3(b).

“Successor Agent” – any person designated in Section III.2(c) below.

Other capitalized terms are defined contextually.

III. OPERATIVE PROVISIONS

1. Appointment. The Principal hereby appoints the Agent as the Principal’s true and lawful attorney-in-fact to act for the Principal in accordance with this Agreement.

2. Grant of Authority.
   a. General Authority. Subject to the limitations in Sections III.2(b) and III.5, the Agent may exercise every power that the Principal could exercise with respect to the Principal’s property and financial affairs.
   b. Specific Enumerated Powers. Without limiting the foregoing, the Agent may exercise each of the following powers only if the corresponding blank is initialed by the Principal. Powers left blank are not granted.

[// GUIDANCE: Add or delete rows to conform to client objectives.]

c. Successor Agent(s). If the Agent is unwilling or unable to serve, the following persons shall serve, in the order listed, as Successor Agent(s): [NAME / ADDRESS].
d. Co-Agents. ☐ Yes ☐ No. If “Yes,” authority is (check one): ☐ Joint ☐ Independent.

3. Effective Date; Springing Option.
   a. Default Rule. This Agreement becomes effective on the Effective Date and is durable.
   b. Springing Authority (optional). ☐ Applicable ☐ N/A. If applicable, authority springs upon [DESCRIBE TRIGGER, e.g., written certification of incapacity by two licensed physicians].

4. Acceptance. The Agent accepts the appointment by signing the Execution Block or by exercising authority, per § 39B-1-109.

5. Hot Powers Requiring Express Language. Notwithstanding Section III.2, the Agent may not:
   a. Create, amend, revoke, or terminate a trust;
   b. Make gifts;
   c. Create or change beneficiary designations;
   d. Delegate authority granted herein;
   e. Waive the Principal’s right to be a beneficiary of a joint and survivor annuity;
   unless such power is expressly granted in an attached Schedule A (Special Powers) initialed by the Principal.

IV. REPRESENTATIONS & WARRANTIES

1. By Principal.
   a. Legal Capacity. Principal is at least eighteen (18) years old and of sound mind.
   b. Title to Assets. Principal holds lawful title to the property subject to this Agreement.

2. By Agent.
   a. Eligibility. Agent is not disqualified under § 39B-1-115 or other applicable law.
   b. No Conflict. Execution does not violate any agreement or court order binding on Agent.
   c. Fiduciary Undertaking. Agent will faithfully discharge the Fiduciary Duty.

Representations survive the termination of this Agreement as to acts or omissions occurring before termination.

V. COVENANTS & RESTRICTIONS

1. Fiduciary Duty. The Agent shall:
   a. Act in good faith and in the Principal’s best interest, § 39B-1-114(b).
   b. Act within the scope of authority granted.
   c. Keep records of all transactions, incl. vouchers and receipts, for [MIN. YEARS] years.
   d. Preserve the Principal’s estate plan, to the extent actually known, § 39B-1-114(c)(4).
   e. Not commingle the Principal’s property with the Agent’s own, except as permitted by § 39B-1-114(c)(5).

2. Reporting. Upon written request by the Principal, a Successor Agent, a court-appointed conservator, or any “interested person” under § 39B-1-116, the Agent shall provide a written accounting within [30] days.

3. Compensation. The Agent (check one): ☐ Shall ☐ Shall Not receive reasonable compensation. Reimbursement of reasonable expenses is permitted.

VI. DEFAULT & REMEDIES

1. Events of Default. Each of the following constitutes an “Event of Default”:
   a. Breach of Fiduciary Duty;
   b. Misappropriation or self-dealing;
   c. Failure to provide an accounting as required;
   d. Incapacity or death of the Agent.

2. Notice & Cure. The Principal or an interested person shall give written notice specifying the default. The Agent has [15] days to cure, except for willful misconduct (no cure period).

3. Remedies. Upon default and failure to cure, the Principal or an interested person may seek:
   a. Suspension or removal of the Agent (§ 39B-1-116(b));
   b. Injunctive relief;
   c. Surcharge against the Agent up to the Liability Cap (Section VII.2);
   d. Recovery of attorneys’ fees per § 39B-1-119.

VII. RISK ALLOCATION

1. Indemnification. The Principal shall indemnify and hold harmless the Agent from any third-party claim, loss, or expense arising from acts performed in good faith and without breach of Fiduciary Duty (“Indemnified Acts”). No indemnity applies to willful misconduct or gross negligence.

2. Liability Cap. The Agent’s aggregate liability to the Principal for damages arising under this Agreement shall not exceed the Assets Under Management as of the date the cause of action accrues, except for willful misconduct, for which no cap applies.

3. Insurance. The Principal (check one): ☐ Shall ☐ Shall Not procure fiduciary liability insurance naming the Agent as an insured party.

4. Force Majeure. The Agent is excused from performance to the extent rendered impossible by events beyond the Agent’s reasonable control, provided the Agent resumes performance promptly thereafter.

VIII. DISPUTE RESOLUTION

1. Governing Law. This Agreement and any dispute arising hereunder are governed by the state_power_of_attorney_law of West Virginia, without regard to conflict-of-laws principles.

2. Forum Selection. Exclusive jurisdiction and venue lie in the [COUNTY] West Virginia Probate Court (the “Designated Court”), except as provided in Section VIII.3.

3. Limited Arbitration.
   a. Scope. Disputes solely between Principal and Agent regarding entitlement to compensation or expense reimbursement not exceeding $50,000 shall be submitted to arbitration administered by [ARBITRATION SERVICE] under its expedited rules.
   b. Carve-Outs. All fiduciary matters, requests for injunctive relief, removal of the Agent, or construction of this Agreement shall remain within the exclusive jurisdiction of the Designated Court.

4. Jury Waiver. To the fullest extent permitted by law, the parties waive trial by jury for any dispute heard in the Designated Court; provided, however, that if the Designated Court determines the waiver unenforceable, the dispute shall proceed to jury trial.

5. Injunctive Relief. Nothing herein limits the Designated Court’s authority to issue temporary, preliminary, or permanent equitable relief.

IX. GENERAL PROVISIONS

1. Amendment. The Principal may amend this Agreement only by a writing signed and acknowledged with the same formalities as this Agreement.

2. Revocation & Termination.
   a. Revocation. The Principal may revoke this Agreement at any time by:
   i. Executing a written revocation; and
   ii. Delivering such revocation to the Agent and any known third parties relying on this Agreement.
   b. Automatic Termination. This Agreement terminates upon the first to occur of:
   i. Principal’s death;
   ii. Complete revocation;
   iii. As to a spouse-Agent, entry of a decree of divorce or annulment (§ 39B-1-110).
   c. Survival. Agent’s liability for prior acts survives termination.

3. Assignment; Delegation. The Agent may not delegate authority except as expressly permitted by the Act and this Agreement.

4. Successors & Assigns. This Agreement binds and benefits the Principal’s and Agent’s respective heirs, successors, and permitted assigns.

5. Severability. Any invalid provision is severed and the remainder enforced to the fullest extent permitted.

6. Integration. This Agreement, including any schedules, constitutes the entire agreement and supersedes all prior powers of attorney concerning the subject matter hereof.

7. Counterparts; Electronic Signatures. This Agreement may be executed in counterparts and by electronic signature, each of which is deemed an original.

X. EXECUTION BLOCK

[// GUIDANCE: West Virginia requires notarization (§ 39B-1-105). Two witnesses are customary but not statutorily mandated.]

Principal

[PRINCIPAL NAME] – Principal
Date: _______

Agent Acceptance

I, [AGENT NAME], accept appointment as Agent and affirm that I will act in accordance with the Fiduciary Duty and the terms of this Agreement.

[AGENT NAME] – Agent
Date: _______

Successor Agent Acceptance (if any)

[SUCCESSOR AGENT NAME]
Date: _______

Notarial Acknowledgment

State of West Virginia )
County of [COUNTY] ) ss:

The foregoing instrument was acknowledged before me this ___ day of _, 20_, by [PRINCIPAL NAME], who is personally known to me or has produced __________ as identification.

Notary Public
Commission No.: ___
My Commission Expires: ___

(Seal)

Optional Witness Attestation

As witnesses, we affirm that [PRINCIPAL NAME] appeared to be of sound mind and free from duress at the time of signing and that the Principal affirmed this instrument as a Durable Financial Power of Attorney.

1. ____ Date: _

2. ____ Date: _

Schedule A – Special Powers (Optional)

[// GUIDANCE: List any “hot powers” granted under Section III.5. Principal must initial each.]