OPTIONAL PROVISIONS FOR DURABLE POWER OF ATTORNEY The Following

optional provisions for durable power of attorney the following provisions may replace the indicated provisions in the forms durable power

OPTIONAL PROVISIONS FOR DURABLE POWER OF ATTORNEY
The following provisions may replace the indicated provisions in the
forms Durable Power of Attorney Effective on Execution or Durable
Power of Attorney Effective on Disability.
1. Employment of agents. [Replaces paragraph 2(n)]Employ and
compensate agents, accountants, attorneys, real estate brokers, and
other professionals for services rendered and waive any
attorney-client privilege and any other privilege which I may have.
2. Restrictions on the agent’s powers. [Replaces paragraph 2(o)]
a. Notwithstanding any provision herein to the contrary, unless
otherwise approved by a court of competent jurisdiction, my agent
i. shall have no power or authority whatsoever with respect to any
interest in or incidents of ownership in any policy of insurance I may
own on the life of my agent.
ii. shall have no power or authority whatsoever with respect to any
irrevocable trust created by my agent as to which I am a trustee or a
beneficiary, or any asset given to me by my agent.
b. Except as specifically authorized in this document, my agent shall
be prohibited from
i. appointing, assigning, or designating any of my assets, interests,
or rights directly or indirectly to my agent, my agent’s estate, my
agent’s creditors, or the creditors of my agent’s estate;
ii. disclaiming assets to which I would otherwise be entitled if the
effect of such disclaimer is to cause such assets to pass in any one
calendar year directly or indirectly to my agent or his or her estate;
iii. using my assets to discharge any of my agent’s legal obligations,
including any obligations of support that my agent may owe others
(excluding those whom I am legally obligated to support);
iv. exercising any discretionary fiduciary powers that I now hold or
may later acquire; and
v. executing, amending, or revoking any trust of which I am settlor or
cosettlor (however, my agent may enter into a custodial agreement with
a bank with trust powers).
3. Reliance by third parties. [Replaces paragraph 4 (Effective on
Execution) or paragraph 3 (Effective on Disability)]Third parties may
rely on the representations of my agent as to all matters relating to
any power granted to my agent, and no person who acts in reliance on
the representation of my agent or the authority granted to my agent
shall incur any liability to me or my estate as a result of permitting
my agent to exercise any power. For the purpose of inducing third
parties to rely on this power of attorney, I warrant that, if this
power of attorney is revoked by me or otherwise terminated, I will
indemnify and save third parties harmless from any loss suffered or
liability incurred by such third parties in good faith reliance on the
authority of my agent prior to such third parties’ actual knowledge of
revocation or termination of this power of attorney, whether such
termination is by operation of law or otherwise. This warranty shall
bind my heirs, devisees, and personal representatives.
The following provisions may be added to section 2 of the forms
Durable Power of Attorney Effective on Execution or Durable Power of
Attorney Effective on Disability. Please note that the numbering must
be changed if these provisions are added and that certain other
provisions may need to be changed.
1. Limited power to amend. Act alone to amend this document, by a
writing executed with the formalities of this document,
a. in any manner required for the sole purpose of correcting any
clerical error.
b. in any manner reasonably necessary to clarify my agent’s authority
to exercise any power herein granted.
c. in any manner that my agent, acting in good faith, reasonably
believes is necessary to act in my best interest, or believes I would
act under the circumstances then existing.
Notwithstanding the foregoing, my agent shall not exercise the power
to amend this document if such exercise would lead to the inclusion of
any of my property in my agent’s estate.
2. Real property powers. Contract, option, purchase, acquire, receive,
improve, maintain, repair, insure, plat, partition, safeguard, lease,
grant, sell, assign, release, redeem, exchange, convey, and mortgage
real property and any interests therein (including any interest that I
hold with any other person as joint tenants with full rights of
survivorship or as tenants by the entireties), on such terms and
conditions as my agent shall determine.
3. Banking powers. Establish accounts of all kinds, with financial
institutions of any kind, including, but not limited to, banks, credit
unions, savings and loans, and thrift institutions; modify, terminate,
make deposits to, and write checks on or make withdrawals from and
grant security interests in all accounts, in my name, or to which I am
an authorized signatory (except accounts held by me in a fiduciary
capacity), whether or not any such account was established by me or
for me by my agent; negotiate, endorse, or transfer any checks or
other instrument with respect to any such accounts; contract for any
services rendered by any financial institution.
4. Settlement powers. Adjust, settle, compromise, or submit to
mediation or arbitration any matters that now exist or that may arise
between me, or my agent, and any other person(s) or involving any of
my property interest of any kind.
5. Legal actions. Institute, supervise, prosecute, defend, intervene
in, abandon, compromise, arbitrate, settle, dismiss, and appeal from
any and all legal, equitable, judicial, or administrative matters
involving me.
6. Dividends. Receive all dividends that are or shall be payable on
any and all shares of stock in any corporation that I own or to which
I may be beneficially entitled or elect to reinvest such dividends.
7. Insurance and annuities. [If this provision is used, paragraph 2(o)
must be changed to allow the agent to change beneficiaries on life
insurance policies.]Exercise all powers and rights I have, including
but not limited to, to purchase, maintain, surrender, collect,
transfer ownership, cancel, pay all insurance premiums, select any
options, increase coverage, borrow against, pursue all claims, adjust
losses, designate and change beneficiaries, decrease coverage, or
cancel and receive and dispose of cash value with respect to: (a) life
insurance of any kind in which I have an interest; (b) annuities of
any kind in which I have an interest; (c) liability insurance; (d)
hospital insurance, medical insurance, Medicare supplemental
insurance, long term care insurance, and disability income insurance
for me or any of my dependents; and (e) casualty insurance.
8. Disclaim, renounce, release, or abandon property interests.
Renounce and disclaim any property or interest in property or powers
to which, for any reason and by any means, I may become entitled,
whether by gift, testate, or intestate succession; release or abandon
any property or interest in property or powers which I may now or
later own, including any interests in or rights over trusts (including
the right to alter, amend, revoke, or terminate) and exercise any
right to disclaim an elective share in any estate or under any will.
In exercising such discretion, my agent may take into account such
matters that shall include, but shall not be limited to, any reduction
in estate or inheritance taxes on my estate, and the effect of such
renunciation or disclaimer on persons interested in my estate and
persons who would receive the renounced or disclaimed property.
9. Debts and expenses. Pay, compromise, and settle any and all bills,
loans, notes, or other forms of indebtedness owed by me or that may be
owed by me or incurred by my agent for my benefit at any time in the
future; and incur and pay from any of my assets or property all
reasonable expenses in connection with the control, management, and
supervision of my property and the maintenance, support, care, and
comfort of myself and those dependent on me, including reasonable
compensation for the services of my agent and fees and charges of such
agents, attorneys, accountants, or others who my agent may employ in
the management of any of my affairs.
10. Investments. Invest and reinvest in loans, stocks, bonds,
securities, real estate, life insurance, annuities, or endowment
policies or combinations thereof or in any other investment that my
agent may deem appropriate; deal with and give instructions to any
financial entity with respect to the purchase, sale, or other
disposition of investment assets; add assets to or withdraw assets
from any account in my name and sign any representation,
certification, or agreement, including agreements regarding margin,
option trading, or commodities accounts, that my agent may deem
appropriate.
11. Incidental powers. In connection with the exercise of the powers
described herein, my agent is fully authorized and empowered to
perform any acts and to execute and deliver any documents,
instruments, and papers that are necessary, appropriate, incident, or
convenient to such exercise, including, without limitation, the
following:
a. Seek on my behalf and at my expense
i. a declaratory judgment from any court of competent jurisdiction
interpreting the validity of this document and any of the acts
authorized by this document, but such declaratory judgment shall not
be necessary for my agent to perform any act authorized by this
document;
ii. a mandatory injunction requiring compliance with my agent’s
instructions by any person, organization, corporation, or other entity
obligated to comply with instructions given by me; and
iii. actual and punitive damages against any person, organization,
corporation, or other entity, obligated to comply with instructions
given by me, who negligently or willfully fails or refuses to follow
my agent’s instructions.
b. Incur costs on my behalf, if my agent has that authority, and
render the bills for such costs to any agent of mine who has been
granted the authority to pay such costs or to any trustee of any
revocable living trust of mine or conservator who has authority to pay
such costs, and the recipient thereof (i.e., my agent with authority
to pay or my trustee) shall promptly pay such costs.
c. Open, read, respond to, and redirect my mail and represent me
before the U.S. Postal Service in all matters relating to mail
service.
d. Establish, cancel, continue, or initiate my membership in
organizations and associations of all kinds.
e. Take and give or deny custody of all of my important documents,
including, but not limited to, my will, codicils, trust agreements,
deeds, leases, life insurance policies, contracts, and securities and
disclose or refuse to disclose such documents.
f. Obtain and release or deny information or records of all kinds
relating to me, any interest of mine, or to any person for whom I am
responsible.
g. House or provide for housing, support, and maintenance of any
animals or other living creatures that I may own and contract for and
pay the expenses of their proper veterinary care and treatment, and,
if the care and maintenance of such animals or other living creatures
shall become unreasonably expensive or burdensome in my agent’s
opinion, irrevocably transfer such animals to some person or persons
willing to care for and maintain them.
12. Authority in agent to appoint successor agent. Appoint a successor
agent or agents by a writing executed with the formalities of this
document, to which it shall be attached. The successor agent or agents
shall serve with the same powers given my original agent unless
otherwise limited by the appointing document. The successor agent or
agents shall be empowered to act as specified in the appointing
document.
13. Transfers to irrevocable trust. Direct the trustee of any trust of
which I am the grantor, and make transfers of trust assets, income,
and/or principal, without consideration, to the trustee of any
irrevocable trust of which I am the grantor.
14. Create a trust. Create and execute an irrevocable trust agreement
on such terms and conditions as my agent shall deem appropriate, with
such trustee or trustees as my agent shall select, which trust may be
for my benefit, for the benefit of my spouse, or any of my
descendants; transfer to the trustee of the trust agreement created by
my agent any of my property or interests in property (including any
rights to receive income from any source); and execute such
instruments or documents to effect the transfers described herein as
may be necessary, appropriate, incidental, or convenient. My agent may
restrict or prevent trust assets and income from being used for my
benefit, provided, however, that the distributional provisions after
my death shall be substantially similar to and consistent with my
estate planning documents then existing, except for the deletion of my
spouse as a beneficiary, if necessary for Medicaid eligibility
purposes. I understand that the creation of such a trust may result in
my being unable to have access to or the benefit of such trust assets
and the income therefrom for my support, maintenance, care, and
comfort; nevertheless, I specifically authorize my agent to create
such a trust, which decision shall be in my agent’s sole and
uncontrolled discretion.
15. Create or amend. Create or amend a trust for my benefit and for
the benefit of my spouse or any of my descendants, on such terms and
conditions as my agent shall deem appropriate, provided, however, that
the distributional provisions after my death shall be substantially
similar to and consistent with my estate planning documents then
existing, except for the deletion of my spouse as a beneficiary, if
necessary for Medicaid eligibility purposes.
16. Powers of appointment. Exercise or refrain from exercising any
power of appointment.
17. Support of dependents. Disburse funds as may be necessary, in the
sole discretion of my agent, for the maintenance and support, and to
meet any emergencies, of persons dependent in whole or in part on me.
18. Rights in spouse’s estate. Make or waive any elections and claims
or waive any allowances available to me in my spouse’s estate or trust
following my spouse’s death. During my spouse’s lifetime, my agent may
waive my rights to any elections and/or allowances by entering into a
written agreement with my spouse.
19. Resign fiduciary position. Resign any fiduciary position that I
hold, or to which I have been or may be appointed, with or without
accounting or formal or informal settlement.
20. Withdraw income or principal from a trust. Withdraw and/or
receive, on my behalf, income and/or principal of a trust to which I
may be entitled.
21. Government benefit qualification. Exercise and perform any act to
qualify me or my spouse for any governmental benefit program,
including the power to divest assets and convert assets into ones that
are exempt under government rules and regulations.
22. Education savings account. Establish and contribute to an
education savings account, or accounts, pursuant to §529 of the
Internal Revenue Code (IRC 529), for the benefit of any “member of my
family”, as such term is defined by Treasury Regulations, as well as
exercise all rights and powers of an account owner under the terms of
the plan agreement and §529 of the Internal Revenue Code or Treasury
Regulations.
23. Protection for agent. No agent named in or substituted under this
document shall incur any liability to me for acting or refraining from
acting under it, except for such agent’s own willful misconduct or
gross negligence.
24. Individual retirement accounts and qualified plans. Create and
contribute to an employee benefit plan (including a plan for a
self-employed individual), “individual retirement account,” Roth IRA,
403(b) annuity or account, Section 457 plan or other retirement plans
or arrangements in my name or for my benefit, whether as a participant
or beneficiary (each of which is hereafter referred to as “such
Plan”); select any payment option under any IRA or employee benefit
plan in which I am a participant (including plans for self-employed
individuals) or change options I have selected; make voluntary
contributions to such plan; make “roll-overs” of plan benefits into
other retirement plans; apply for and receive payments and benefits;
waive rights given to non-employee spouses under state or federal law;
borrow money and purchase assets therefrom and sell assets thereto, if
authorized by any such plans; make and change beneficiary designations
or contingent beneficiaries for any benefits payable under such Plan
on account of my death, including revocable and/or irrevocable
designations; consent and/or waive consent in connection with the
designation of beneficiaries and the selection of joint and survivor
annuities under any employee benefit plan or individual retirement
account(s) or Roth IRA; receive and endorse checks or other
distributions to me from such Plan, or arrange for the direct deposit
of same in any account in my name or in the name of my revocable
trust. Notwithstanding anything contained herein to the contrary, my
Agent shall have no power to designate my Agent directly or indirectly
as a beneficiary, whether primary or contingent, to receive a greater
share of any such benefits than my Agent would have otherwise
received, unless such change is consented to by all other
beneficiaries who would have received the benefits but for the
proposed change. This limitation shall not apply to any designation of
my Agent as beneficiary in a fiduciary capacity, with no beneficial
interest.
If any of the following provisions is added to section 2 of the forms
Durable Power of Attorney Effective on Execution or Durable Power of
Attorney Effective on Disability, the restrictions on an agent’s
powers to make gifts, paragraph 2(o), should be eliminated. Note that
the numbering in the document must be changed if these paragraphs are
added. Also note the description at the beginning of each provision to
differentiate between the provisions. In the provisions where there
are 2 sections, paragraph (a) provides for gifts made by the agent
where the gift is not from a trust, and paragraph (b) provides for
gifts made by a trustee from a trust at the agent’s direction. If the
agent is permitted to make gifts, the restrictions on the gifts,
Option 7, should be added.
[Option 1. The agent cannot make gifts to the agent or a person the
agent is obligated to support.]
1(a). Gifts—restricted. Make gifts, grants, or other transfers without
consideration as my agent may deem appropriate, either outright or in
trust (including the forgiveness of indebtedness), to my spouse (if
any), any of my children, their spouses, or their descendants, or to
any charitable organization; and pay directly the tuition and medical
expenses of any such donee to the extent such payments constitute
qualified transfers for federal gift tax purposes; and continue or
complete any gifts or gift program of mine with any of my real estate
or personal property to any such donee, provided that my agent shall
not make any gifts to himself or herself nor to any person whom my
agent has an obligation to support.
1(b). Gifts from trust. Direct the trustee of any revocable trust of
which I am the grantor to make gifts, grants, or other transfers
without consideration as my agent may deem appropriate, either
outright or in trust (including the forgiveness of indebtedness), to
my spouse (if any), any of my children, their spouses, or their
descendants, or to any charitable organization; and pay directly the
tuition and medical expenses of any such donee to the extent such
payments constitute qualified transfers for federal gift tax purposes;
and continue or complete any gifts or gift program of mine with any of
my real estate or personal property to any such donee, provided my
agent shall not direct the trustee to make any gifts to my agent nor
to any person whom my agent has an obligation to support.
[Option 2. The agent can make gifts to himself or herself.]
2(a). Gifts—restricted. Make gifts, grants, or other transfers without
consideration as my agent may deem appropriate, either outright or in
trust (including the forgiveness of indebtedness), to my spouse (if
any), any of my children, their spouses, or their descendants, or to
any charitable organization; and pay directly the tuition and medical
expenses of any such donee to the extent such payments constitute
qualified transfers for federal gift tax purposes; and continue or
complete any gifts or gift program of mine with any of my real estate
or personal property to any such donee, including gifts to my agent.
2(b). Gifts from trust. Direct the trustee of any revocable trust of
which I am the grantor to make transfers of trust assets, income,
and/or principal without consideration as my agent may deem
appropriate, either outright or in trust (including the forgiveness of
indebtedness), to my spouse (if any), any of my children, their
spouses, or their descendants, or to any charitable organization; and
pay directly the tuition and medical expenses of any such donee to the
extent such payments constitute qualified transfers for federal gift
tax purposes; and continue or complete any gifts or gift program of
mine with any of my real estate or personal property to any such
donee, including gifts to my agent.
[Option 3. The agent needs written consent from the principal or
consent from an adverse person to make gifts to himself or herself.]
3(a). Gifts—restricted. Make gifts, grants, or other transfers without
consideration as my agent may deem appropriate, either outright or in
trust (including the forgiveness of indebtedness), to my spouse (if
any), any of my children, their spouses, or their descendants, or to
any charitable organization; and pay directly the tuition and medical
expenses of any such donee to the extent such payments constitute
qualified transfers for federal gift tax purposes; and continue or
complete any gifts or gift program of mine with any of my real estate
or personal property to any such donee, provided my agent shall only
exercise this power to make a gift to himself or herself with my
written consent, or in conjunction with a person having a substantial
interest in the property subject to this gifting power that is adverse
to the exercise of this gifting power in favor of my agent.
3(b). Gifts from trust. Direct the trustee of any trust of which I am
the grantor to make gifts, grants, or other transfers without
consideration as my agent may deem appropriate, either outright or in
trust (including the forgiveness of indebtedness), to my spouse (if
any), any of my children, their spouses, or their descendants, or to
any charitable organizations; and pay directly the tuition and medical
expenses of any such donee to the extent such payments constitute
qualified transfers for federal gift tax purposes; and continue or
complete any gifts or gift program of mine with any of my real estate
or personal property to any such donee, provided that my agent shall
not direct the trustee to make a gift to himself or herself without my
written consent or in conjunction with a person having a substantial
interest in the property subject to this gifting power that is adverse
to the exercise of this gifting power in favor of my agent.
[Option 4. The agent needs consent to make gifts to the agent or the
agent’s family with additional limitations.]
4(a). Gifts. Make irrevocable gift transfers of my property to any of
my children, their spouses, or their descendants, or to any charitable
organization, including my agent, as my agent deems appropriate,
provided (i) that all transfers to my children shall be in equal
amounts and any transfers to the descendants, collectively, of a child
of mine shall be equal to the amount transferred to the descendants,
collectively, of each other child of mine; (ii) that my agent, prior
to making any transfer to himself or herself, his or her spouse, or
any person dependent on my agent, shall first obtain my written
consent, or if I am not capable of giving informed consent, then the
written consent of all adult members of my family (other than my
agent) who would be entitled to more than a 10 percent interest in my
estate (probate and nonprobate) if I had died immediately before the
transfer was made; (iii) that in no event is my agent authorized or
permitted to make any transfer pursuant to the above power to my
agent’s estate, creditors, or the creditors of my agent’s estate; and
(iv) that my agent shall not make any gifts that are not deductible or
exempt from gift tax or excluded from gift tax by my federal gift tax
annual exclusion.
4(b). Gifts from trust. Direct the trustee of any revocable trust
agreement of which I am a grantor to make irrevocable gift transfers
of my property to any of my children, their spouses, or their
descendants, or to any charitable organization, including my agent, as
my agent deems appropriate, provided (i) that all transfers to my
children shall be in equal amounts and any transfers to the
descendants, collectively, of a child of mine, shall be equal to the
amount transferred to the descendants, collectively, of each other
child of mine; (ii) that my agent, prior to directing the trustee to
make any transfer to himself or herself, his or her spouse, or any
person dependent on my agent, shall first obtain my written consent,
or if I am not capable of giving informed consent, then the written
consent of all adult members of my family (other than my agent) who
would be entitled to more than a 10 percent interest in my estate
(probate and nonprobate) if I had died immediately before the transfer
was made; (iii) that in no event is my agent authorized or permitted
to direct the trustee to make any transfer pursuant to the above power
to my agent’s estate, creditors, or the creditors of my agent’s
estate; and (iv) that my agent shall not direct the trustee to make
any gifts that are not deductible or exempt from gift tax or excluded
from gift tax by my federal gift tax annual exclusion.
[Option 5. The agent may make gifts as he or she deems appropriate.]
5. Gifts. Make gifts, grants, or other transfers without consideration
as my agent may deem appropriate, either outright or in trust
(including the forgiveness of indebtedness), to such persons or
organizations as my agent shall select, all in the sole discretion of
my agent.
[Option 6. The agent may make gifts to the principal’s spouse.]
6. Gifts to spouse. Make gifts, grants, or other transfers without
consideration as my agent may deem appropriate, either outright or in
trust (including the forgiveness of indebtedness), to my spouse, or
into joint name and ownership with my spouse and me, with or without
survivorship. This power may be exercised even if my agent is my
spouse.
[Option 7. Gifts may not incur tax.]
7(a). Gifts—restricted amount. Provided, however, that my agent shall
not make any gifts that are not deductible or exempt from gift tax or
excluded from gift tax by my federal annual gift tax exclusion amount.
7(b). Gifts from trust. Provided, however, that my agent shall not
instruct my trustee to make any transfers that are not deductible or
exempt from gift tax or excluded from gift tax by my federal annual
gift tax amount.