Wills and estate planning

Sample Form: Durable Power of Attorney

Go over this form with your attorney.

POWER OF ATTORNEY- SAMPLE TO CONSIDER FOR DISCUSSION WITH YOUR ATTORNEY

DURABLE POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that I, _____________ (the "Grantor") (Social Security Number: _____________), residing at _____________, being of the age of majority under the laws of _____________, and of sufficient capacity to conduct my business and financial affairs, in order to provide for management of Grantor's financial affairs in a more orderly fashion, hereby declare as follows:

APPOINTMENT OF AGENT Grantor hereby makes, constitutes, and appoints ("Grant") _____________ residing at _____________, as Grantor's true and lawful attorney-in-fact and agent (the "Agent") for Grantor and in Grantor's name, place, and stead and for Grantor's benefit, or any alternate appointed in accordance with the provisions of this Power of Attorney (the "Agent").

ALTERNATE AGENT If _____________ is unwilling or unable to act as Agent, Grantor appoints _____________, who resides at _________________, as Grantor's Agent (the "Alternate Agent"). If _____________ is unable or unwilling to serve as Grantor's Agent, then Grantor appoints _____________, who resides at __________________, as Grantor's Agent. If _____________ is unable or unwilling to serve as Grantor's Agent, then Grantor appoints _____________, who resides at __________________, as Grantor's Agent. The timing of the appointment of the Alternate Agent shall be when the prior named Agent or Alternate Agent is unwilling or unable to act. Any rights or powers granted to the Agent are granted to the Alternate Agent.

DIRECTION TO SUPPORT GRANTOR AND DESIGNATED PERSONS The Agent is hereby authorized and directed to do all acts reasonable and necessary to maintain Grantor's customary standard of living: to provide living quarters by purchase, lease, or other arrangement, or by payment of the operating costs of Grantor's existing living quarters, including interest, amortization payments, repairs, taxes, and so forth; to provide for the retention and payment of reasonably necessary domestic help for the maintenance and operation of Grantor's household; to finance or arrange for the purchase of other necessaries, including but not limited to clothing, transportation, entertainment, and incidentals; and to provide medical care. The Agent is further authorized and directed to provide for the health, education, support, and maintenance of Grantor's spouse, and Grantor's _____________, _____________, _____________ in accordance with an ascertainable standard as defined in Code Section 2041 and the Regulations thereunder.

POWERS OF AGENT

The Agent is hereby granted all the powers and rights necessary to effect Grantor's wishes, including, in addition to any power authorized by the laws of _____________ for an agent, the following:

General Financial Matters: Request, ask, demand, sue for, recover, sell, collect, forgive, receive, and hold money, debts, dues, commercial paper, checks, drafts, accounts, deposits, legacies, bequests, devises, notes, interests, stocks, bonds, certificates of deposit, annuities, pension and retirement benefits, insurance proceeds, any and all documents of title, choses in action, personal and real property, intangible and tangible property and property rights, and demands whatsoever, liquidated or unliquidated, as now are or may become owned by, or due, owing, payable, or belonging to Grantor, or in which Grantor has or may hereafter acquire interest. Agent may use and take all lawful means and equitable and legal remedies, procedures, and writs in Grantor's name for the collection and recovery of the above; and may adjust, sell, compromise, and agree for the same; and to make, execute, and deliver for Grantor, on Grantor's behalf and in Grantor's name, all endorsements, acceptances, releases, receipts, or other sufficient discharges for the same.

Tax Returns and Related Tax Matters: Prepare, sign, and file joint or separate income tax returns or declarations or estimated tax for any year or years; prepare, sign, and file gift tax returns with respect to gifts made by Grantor, or by Grantor's Agent on Grantor's behalf, for any year or years; to utilize any gift-splitting provision or other tax election; and prepare, sign and file any claim for refund of any tax. This power is in addition to and not in limitation of the specific tax powers granted below.

Business: Conduct, engage in, and transact any lawful business of any nature on Grantor's behalf and in Grantor's name. Maintain, improve, invest, manage, insure, lease, or encumber, and in any manner deal with any real, personal, tangible, or intangible, property, or any interest in them, that Grantor now owns or may acquire, in Grantor's name and for Grantor's benefit, upon such terms and conditions as Agent shall deem proper. Conduct or participate in any business of any nature for Grantor and in Grantor's name; execute partnership agreements and amendments thereto; incorporate, reorganize, merge, consolidate, recapitalize, sell, liquidate, or dissolve any business; elect or employ officers, directors, and agents. Carry out the provisions of any agreement for the sale of any business interest or the stock therein; and exercise voting rights with respect to stock, either in person or by proxy; and exercise stock options.

Social Security and Government Benefits: Apply to any governmental agency for any benefit or government obligation to which Grantor may be entitled; endorse any drafts or checks made payable to Grantor from any such agency.

Contract, Real Estate, and Other Matters: Exercise or perform any act, power, duty, right, or obligation that Grantor now has, or may acquire, including the legal right, power, or capacity to exercise or perform in connection with, arising from, or relating to any person or property, real or personal, tangible or intangible, or matter whatsoever, including, without limiting the foregoing, the right to execute a deed or security agreement, or to release a security agreement; to enter into a contract of sale and to sell any real, personal, tangible, or intangible property on Grantor's behalf.

Securities and Investments: Make, receive, sign, endorse, acknowledge, deliver, and possess documents of title, bonds, debentures, checks, drafts, stocks, proxies, or warrants, relating to accounts or deposits, or certificates of deposit, other debts and obligations, and such other instruments in writing of whatever kind and nature as may be necessary or proper in the exercise of the rights and powers herein granted. Sell any and all shares of stocks, bonds, or other securities now or later belonging to Grantor that may be issued by any association, trust, or corporation, whether private or public; and make, execute, and deliver any assignment, or assignments, of any such shares of stocks, bonds, or other securities.

Legal Actions: Settle, adjust, compromise, or submit to arbitration any accounts, claims, debts, demands, disputes, or other matters between Grantor and any other person or entity, or which concern any property, right, title, interest, or estate. Begin, prosecute, enforce, abandon, defend, or settle all claims or judicial or administrative proceedings.

Benefit Plans: Redeem, borrow, amend, cancel, pledge, surrender, alter, or change the beneficiary of any retirement, benefit, or pension plan.

Employment of Accountants, Advisers, and Others: Employ and compensate investment advisers, banks, accountants, attorneys, real estate and other brokers, and other professionals which the Agent reasonably deems necessary.

Safe-Deposit Box: Have access at any time or times to any safe-deposit box rented by Grantor, or for which Grantor is a co-tenant, remove all or any part of the contents thereof, and surrender or relinquish any safe-deposit box. No institution in which any safe-deposit box may be located shall incur any liability to Grantor or Grantor's estate as a result of permitting the Agent to exercise the powers herein granted.

Gifts: Make outright gifts of cash or property to an adult, or to a person under the age of majority under applicable State law under the State Gifts to Minors' Act or Transfers to Minors' Act in custodial form, or to a trust for the benefit of any such minor.

Gifts made under this authority, to each donee in any calendar year shall not exceed the maximum amount which is excluded as a taxable gift under Code Section 2503(b) and 2503(e), or any successor statute, effective as of the date of any gift. Although this amount is presently limited to $10,000 ($20,000 for gifts split with Grantor's spouse), and amounts paid for educational or medical expenses (as defined under Code Section 2503(e)), Grantor understands that this amount may be changed by legislation following the execution of this Power of Attorney.

Permissible donees ("Authorized Donees") hereunder shall include Grantor's spouse, any child of Grantor and their descendants, but not any person who shall be married to any of the foregoing.

The power granted in this paragraph may be exercised by the Agent without regard to any laws concerning self-dealing. Grantor specifically grants to the Agent the right to make gifts to himself or herself, and their issue if such persons are within the class of permissible donees as defined in this paragraph. Grantor grants to the Agent the power to prepare, sign, and file gift tax returns with respect to gifts made by Grantor, or by the Agent on Grantor's behalf, for any year or years; to consent to any gift and to utilize any gift-splitting provision or other tax election relating thereto. This power is in addition to and not in limitation of the specific tax powers granted below.

Disclaimers: Execute a qualified disclaimer without court approval under State law, and/or under Code Section 2518. A disclaimer may be exercised as to part or all of any asset, interest, gift, or transfer of any kind or nature that may pass to Grantor under any instrument or transaction.

Insurance: Make, receive, sign, endorse, acknowledge, deliver, and possess insurance policies. Execute any forms to change ownership or beneficiaries of any life insurance policy on Grantor's life. However, new beneficiaries may only include: Authorized Donees, a trust for Authorized Donees are beneficiaries, a corporation or partnership in which Grantor is a shareholder or partner, another shareholder or partner in a corporation or partnership in which Grantor is a shareholder or partner, Grantor's estate, or any trust of which Grantor is a grantor, trustee, or beneficiary.

ADDITIONAL POWERS

POWERS RELATING TO TAX MATTERS

In addition to, and not by way of limitation upon, any other powers conferred upon Grantor's Agent herein, Grantor grants to the Agent full power and authority to do, take, and perform each and every act and thing whatsoever requisite, proper, or necessary to be done in connection with the following: executing and filing any and all tax returns; receiving and cashing any refund checks with respect to any tax filing; preparing, signing, and filing joint or separate income tax returns or declarations or estimated tax for any year or years [as provided in Treasury Regulation Section 1.6012-1(a)(5) and Treasury Regulation Section 25.6019-1(d)]; and dealing with the Internal Revenue Service and any federal, state, local, and foreign tax authority concerning any gift, estate, inheritance, income, or other tax, and any audit or investigation of same. This power shall include, by way of example and not limitation, the power to do all acts that could be authorized by Grantor having properly executed a Form 2848, "Power of Attorney and Declaration of Representative," granting the broadest powers provided therein to the Agent, the power to represent Grantor in any federal, state, local, or foreign tax matter, to perform all acts that Grantor could perform relating thereto, to receive checks in payment of any tax refund, to execute and file petitions with the United States Tax Court, to execute waivers of restrictions on assessment or collection of tax deficiencies, to execute a tax protest, to execute consents to the extension of the period for assessment or collection of tax, to enter into a closing agreement, to substitute another person to act as Agent with respect to tax matters, and to perform all other acts necessary and related to these acts.

COMPENSATION

No Agent or Alternate Agent hereunder shall be entitled to any compensation for the services rendered.

APPROVAL

Grantor hereby approves and confirms all acts done by Grantor's Agent on Grantor's behalf. Grantor hereby ratifies and confirms all that the Agent shall do or cause to be done, by virtue of this Power of Attorney.

DURABLE POWER – DISABILITY DOES NOT AFFECT GRANT

This Power of Attorney shall not be affected by Grantor's subsequent disability as principal. Grantor does hereby so provide, it being Grantor's intention that all powers conferred upon the Agent herein shall remain at all times in full force and effect, notwithstanding Grantor's subsequent incapacity, disability, or any uncertainty with regard thereto.

THIRD PARTY RELIANCE

Third parties may rely upon the representations of the Agent for all matters relating to any power granted to the Agent, and no person who may act in reliance upon the representations of the Agent or the authority granted to the Agent shall incur any liability to Grantor or Grantor's estate as a result of permitting the Agent to exercise any power. Any third party may rely on a duly executed counterpart of this instrument as fully and completely as if such third party had received the original of this instrument. Any third party may rely on the authority of any Alternate Agent when such Alternate Agent presents an original executed copy of this Power of Attorney. Such third party need not request proof, other than an affidavit of the Alternate Agent, under oath, that any prior named Agent is unable or unwilling to serve in such capacity.

TERMINATION OF GRANT

Revocation of Power by Grantor: In addition to any other method permitted by law, Grantor may revoke this Power of Attorney by destroying all executed copies of this Power of Attorney, or revoke the power granted to any one or more of the Agent or Alternate Agent(s) by giving written notice to such Agent or Alternate Agent via certified mail return receipt requested, overnight courier, or hand delivery, at the address set forth herein for such Agent or Alternate Agent, unless Grantor has knowledge that such Agent or Alternate Agent has a different address.

This Power of Attorney is not coupled with an interest and there is no agreement between Grantor and the Agent or Alternate Agent(s) limiting or restricting in any manner Grantor's right to revoke this Power of Attorney.

Termination by Disability or Death of Agent: The Grant of this Power of Attorney to the Agent shall terminate at the earlier of the date of his or her substantial disability, or the delivery of a writing to such Agent executed by Grantor, prior to Grantor's death or disability, terminating such Grant.

Resignation of Agent: Any Agent may resign by providing written notice to Grantor (or Grantor's guardian or committee) with copy to the next named Agent or a court of competent Jurisdiction.

Validity of Acts Following Revocation: Any act of the Agent between the revocation of this Power of Attorney and notice of that revocation to the Agent shall be valid unless the Agent, or other person claiming the benefit of the act, had actual knowledge of that revocation.

Affidavit Sufficient Proof for Third Party: It shall be sufficient proof for any third party relying on this document, if such third party has no actual knowledge of the termination of this agreement (without any duty of inquiry being imposed on such third party), that the Agent shall provide an affidavit that this Power of Attorney has not terminated under oath.

CONSTRUCTION

This instrument is to be construed and interpreted as a durable general power of attorney. The enumeration of specific items, rights, acts, or powers herein is not intended to nor does it limit or restrict, and is not to be construed or interpreted as limiting or restricting, the general powers herein granted to the Agent. This instrument is executed in the state of _____________ ("State"), and the laws of State shall govern all questions as to the validity of this power and the construction of its provisions. It is Grantor's intention, however, that this power of attorney be exercisable in any other state or jurisdiction in which Grantor may at any time have property, business, or other dealings. Should any provision or power in this document not be enforceable, such enforceability shall not affect the enforceability of the rest of this document. Any references to the "Code" or any Sections of the Code are references to the Internal Revenue Code of 1986 and shall include any successor or amended Code, statute, or regulation. Captions, titles, and section numbers (and letter designations) are inserted for convenience only and should not be read to broaden or limit the scope of any provision. Gender, singular or plural, shall be interpreted as the context requires.

STATE LAW

This instrument is delivered in the State, and the laws of the State shall govern all questions as to the validity of this power and the construction of its provisions. The Agent is, notwithstanding anything herein to the contrary, granted the right to exercise of any of the rights and powers available under the laws of the State. This power of attorney shall not be affected by disability of the principal. This provision shall be interpreted in the broadest terms so as to remain in effect throughout Grantor's disability to the fullest extent provided for under the laws of the state of the State.

IN WITNESS WHEREOF, I have hereunto set my hand and seal this _______________ day of ________________, 200____, acknowledging that I have read and understood the powers and rights herein granted and that Grantor voluntarily chooses to make the Grant.

Grantor/Principal __________________________

Witness 1: Name: __________________________

Address: __________________________

Signature: __________________________

Witness 2: Name: __________________________

Address: __________________________

Signature: __________________________

State of _______________)

County of _______________)

On this _____________ day of _______________, 200 ___, I, a Notary Public in the State of _____________, certify that before me personally appeared _____________, who resides at _____________, and who I am satisfied is the person named in and who executed the within Power of Attorney, and who acknowledged under oath, and to my satisfaction, that the execution of the Power of Attorney by Grantor was done voluntarily for the uses and purposes therein expressed, and that Grantor, signed, sealed, and delivered the Power of Attorney as Grantor's act and deed. The execution of this Power of Attorney by the Grantor was done in my presence and in the presence of both witnesses above, each of whom signed their names in my presence and in Grantor's presence.

_______________________________________

Notary Public, State of _____________

My commission expires on: _____________, 200____