DURABLE (FINANCIAL) POWER OF ATTORNEY

Commonwealth of Massachusetts

[// GUIDANCE: This template is drafted to comply with M.G.L. ch. 190B, § 5-501 (Durable Power of Attorney). Insert client-specific information in all bracketed placeholders and remove guidance comments before finalizing.]

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
Exhibit A Statutory “Notice to the Principal”
Exhibit B Statutory “Notice to the Agent”
Exhibit C Optional Limited Arbitration Rules

I. DOCUMENT HEADER

1. Title. Durable (Financial) Power of Attorney (this “Agreement”).
2. Date. Effective Date: [MM/DD/YYYY].

3. Parties.
   3.1 Principal: [PRINCIPAL FULL LEGAL NAME], of [PRINCIPAL ADDRESS].
   3.2 Agent: [AGENT FULL LEGAL NAME], of [AGENT ADDRESS].
   3.3 Successor Agent(s): [NAME(S) OR “None”].

4. Statutory Statement. Pursuant to M.G.L. ch. 190B, § 5-501, “THIS DURABLE POWER OF ATTORNEY SHALL NOT BE AFFECTED BY SUBSEQUENT DISABILITY OR INCAPACITY OF THE PRINCIPAL.”

5. Purpose & Consideration. The Principal desires to delegate authority over the Principal’s financial affairs to the Agent, who accepts such delegation in consideration of the trust and confidence reposed by the Principal.

II. DEFINITIONS

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

“Agreement” has the meaning set forth in Section I.
“Assets Under Management” means all property, accounts, and contract rights subject to the Agent’s authority at any given time pursuant to this Agreement.
“Durable” has the meaning set forth in M.G.L. ch. 190B, § 5-501.
“Effective Date” has the meaning set forth in Section I.2.
“Fiduciary Duties” means the duties of loyalty, care, good faith, accounting, and full disclosure owed by the Agent to the Principal under Massachusetts law.
“Forum Court” means the Probate and Family Court Department of the Trial Court sitting in the county where the Principal then resides.
“Hot Powers” has the meaning given in Section III.4.
“Incapacity” means the inability of the Principal to manage property or business affairs as certified in writing by two licensed physicians.
“Third Party” means any person other than the Principal and Agent that reasonably relies on the Agent’s authority under this Agreement.

[// GUIDANCE: Add additional defined terms as needed for custom engagements.]

III. OPERATIVE PROVISIONS

1. Grant of General Authority. The Principal hereby appoints the Agent as the Principal’s true and lawful attorney-in-fact to act for, in, and on behalf of the Principal with respect to all financial matters, including the powers enumerated in Section 3.

2. Scope of Authority. Subject to the limitations in this Agreement, the Agent may:
   a. Banking & Financial Accounts
   b. Securities & Investment Transactions
   c. Real & Personal Property Management
   d. Business Operations
   e. Tax, Governmental & Benefit Matters
   f. Digital Assets & Electronic Communications
   g. Claims, Litigation & Settlements
   h. Safe Deposit Boxes & Storage Units
   i. Insurance & Annuities

3. Specific Authority for “Hot Powers.” Massachusetts has not fully adopted the Uniform Power of Attorney Act; however, best practice requires express authority for actions that materially affect estate planning (“Hot Powers”). The Principal therefore specifically authorizes the Agent to:
   a. Create, amend, or revoke trusts of which the Principal is settlor;
   b. Make gifts not exceeding $[ANNUAL LIMIT] per donee per calendar year;
   c. Create or change survivorship or beneficiary designations;
   d. Disclaim or renounce property interests;
   e. Delegate authority granted herein.

4. Conditions Precedent. The Agent’s authority shall commence on the Effective Date [SELECT ONE]:
   • Immediately; or
   • Upon the Principal’s Incapacity (springing).

5. Excluded Powers. The Agent may not:
   a. Execute or revoke a health-care proxy;
   b. Vote in public elections;
   c. Execute or modify the Principal’s will;
   d. Act in a manner inconsistent with the Principal’s known estate plan.

6. Recordation. If this Agreement is presented for record at any Registry of Deeds, the notarized original or certified copy may be recorded, and all instruments executed pursuant hereto may likewise be recorded.

IV. REPRESENTATIONS & WARRANTIES

1. Principal’s Representations. The Principal represents that:
   a. The Principal is at least 18 years of age and of sound mind;
   b. Execution of this Agreement is voluntary and free from undue influence;
   c. No other power of attorney inconsistent with this Agreement is outstanding [or, if any, is expressly revoked per Section VI.1].

2. Agent’s Representations. The Agent represents that:
   a. The Agent is at least 18 years of age and has full legal capacity;
   b. The Agent will faithfully discharge Fiduciary Duties;
   c. The Agent is not currently subject to any order of any court limiting fiduciary capacity.

3. Survival. All representations and warranties survive termination of this Agreement as to matters arising during its term.

V. COVENANTS & RESTRICTIONS

1. Fiduciary Standards. The Agent shall:
   a. Act solely in the Principal’s best interests;
   b. Keep the Principal’s property separate from the Agent’s own;
   c. Maintain accurate records and provide accountings on written request within 30 days;
   d. Preserve all receipts for seven (7) years or as otherwise required by law.

2. Notice Obligations. The Agent shall promptly notify:
   a. The Principal of all material transactions when the Principal has capacity;
   b. Named Successor Agent(s) upon the Agent’s resignation or inability to serve.

3. Compliance. The Agent shall comply with all applicable federal and state laws, including but not limited to money-laundering regulations and tax-reporting requirements.

VI. DEFAULT & REMEDIES

1. Revocation & Removal.
   a. The Principal may revoke this Agreement at any time by a written instrument delivered to the Agent and, if recorded, recorded at the appropriate Registry of Deeds.
   b. A court of competent jurisdiction may remove the Agent for cause, including breach of Fiduciary Duties.

2. Events of Default. The following constitute Defaults:
   • Material breach of Fiduciary Duties;
   • Failure to provide an accounting within the prescribed period;
   • Self-dealing without express written consent of the Principal (while capacitated) or the Probate Court.

3. Cure. The Agent shall have fifteen (15) days after written notice to cure any Default, except that breaches involving theft, fraud, or willful misconduct are not curable.

4. Remedies.
   a. Injunctive Relief. The Principal (or any interested person) may seek equitable relief in the Forum Court to prevent or remedy a breach of Fiduciary Duties.
   b. Accounting & Surcharge. The Agent may be compelled to account and may be surcharged for losses.
   c. Attorneys’ Fees. In any action arising out of this Agreement, the prevailing party is entitled to reasonable attorneys’ fees and costs.

VII. RISK ALLOCATION

1. Indemnification by Agent. The Agent shall indemnify and hold harmless the Principal from any loss, claim, or expense arising out of the Agent’s breach of Fiduciary Duties or this Agreement, except to the extent caused by the Principal’s own acts or omissions.

2. Reliance Protection for Third Parties. Any Third Party may rely conclusively on the genuineness of this Agreement and the Agent’s authority hereunder. No Third Party that so relies shall be liable to the Principal except for actual knowledge of revocation or fraud.

3. Limitation of Liability. The Agent’s aggregate liability to the Principal under this Agreement shall not exceed the total Assets Under Management at the time the liability is incurred; provided, however, that this limitation does not apply to losses caused by the Agent’s intentional misconduct or gross negligence.

4. Insurance. [OPTIONAL] The Agent shall maintain fiduciary liability insurance in a face amount of not less than $[POLICY LIMIT].

5. Force Majeure. The Agent shall not be liable for failure to act caused by events beyond the Agent’s reasonable control, including natural disasters, war, acts of terror, or governmental restrictions, provided that the Agent uses commercially reasonable efforts to resume performance.

VIII. DISPUTE RESOLUTION

1. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts (the “Governing Law”).

2. Forum Selection. The parties irrevocably submit to the exclusive jurisdiction of the Forum Court for all proceedings not subject to arbitration under Section 3.

3. Limited Arbitration. Any claim solely for monetary damages not exceeding $[ARBITRATION CAP] shall be submitted to binding arbitration administered under Exhibit C. Equitable claims and disputes exceeding the cap shall proceed in the Forum Court.

4. Jury Waiver. To the extent permitted by Governing Law, the parties knowingly waive any right to a jury trial for disputes arising under this Agreement. [// GUIDANCE: Massachusetts permits contractual jury waivers in civil matters if made knowingly and voluntarily; counsel should confirm client understanding.]

5. Preservation of Injunctive Relief. Nothing in this Section VIII limits the right of the Principal or any interested person to seek injunctive or declaratory relief in the Forum Court to protect the Principal’s assets or enforce Fiduciary Duties.

IX. GENERAL PROVISIONS

1. Amendments & Waivers. No amendment or waiver is effective unless in writing signed by the Principal while capacitated and acknowledged before a notary public. A waiver of any breach is not a waiver of any other breach.

2. Assignment. The Agent may not assign or delegate authority except as specifically permitted in Section III.3(e) or by court order.

3. Successors & Assigns. This Agreement binds and benefits the Principal, the Agent, their respective heirs, personal representatives, successors, and permitted assigns.

4. Severability. If any provision is held unenforceable, the remaining provisions shall remain in full force, and the unenforceable term shall be reformed to the minimum extent necessary to achieve its intent.

5. Entire Agreement. This document, together with the Exhibits, constitutes the entire understanding between the parties regarding the subject matter and supersedes all prior powers of attorney except as expressly referenced herein.

6. Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which is deemed an original, and signatures transmitted electronically (e.g., PDF, DocuSign) are effective to bind the signing party.

7. Headings. Section headings are for convenience only and do not affect interpretation.

X. EXECUTION BLOCK

10.1 Principal’s Signature & Acknowledgment

I, [PRINCIPAL NAME], have read the “Notice to the Principal” attached as Exhibit A and understand its contents. I execute this Durable Power of Attorney willingly and voluntarily.

| ____ | Date: ___ |
| [PRINCIPAL NAME], Principal |

COMMONWEALTH OF MASSACHUSETTS
County of ______

On this _ day of _, 20, before me, the undersigned notary public, personally appeared [PRINCIPAL NAME], proved to me through satisfactory evidence of identification to be the person whose name is signed above, and acknowledged executing the same voluntarily for its stated purpose.

| ____ |
| Notary Public |
My Commission Expires: ___

10.2 Agent’s Acceptance

I, [AGENT NAME], have read the “Notice to the Agent” attached as Exhibit B and accept my appointment as Agent. I understand and will act in accordance with my Fiduciary Duties.

| ____ | Date: ___ |
| [AGENT NAME], Agent |

COMMONWEALTH OF MASSACHUSETTS
County of ______

On this _ day of _, 20, before me, the undersigned notary public, personally appeared [AGENT NAME], proved to me through satisfactory evidence of identification to be the person whose name is signed above, and acknowledged executing the same voluntarily for its stated purpose.

| ____ |
| Notary Public |
My Commission Expires: ___

EXHIBIT A

“NOTICE TO THE PRINCIPAL”

[Insert the full statutory language as set forth in M.G.L. ch. 190B, § 5-501.]

EXHIBIT B

“NOTICE TO THE AGENT”

[Insert the full statutory language as set forth in M.G.L. ch. 190B, § 5-501.]

EXHIBIT C

LIMITED ARBITRATION RULES

1. Administered by [AAA/JAMS] under its expedited procedures.
2. Single arbitrator with at least ten (10) years’ fiduciary-law experience.
3. Seat of arbitration: Boston, Massachusetts.
4. Filing deadline: claims must be filed within one (1) year of accrual.
5. Costs: filing fees shared equally; arbitrator may reallocate in award.
6. Discovery limited to three (3) depositions per side and production of key documents.
7. Award rendered within ninety (90) days of appointment; reasoned decision required.

[// GUIDANCE: Tailor arbitration parameters to client’s needs and governing arbitration provider rules.]

[// GUIDANCE: Review execution formalities if the power of attorney will be used in real estate transactions—additional recording or witness requirements may apply. Ensure Exhibits A and B contain the exact statutory text to maintain enforceability.]