Section 8.54 Springing Durable Power of Attorney (Long Form)

• Library: Trusts and Powers 2013 Supp

E. (§8.54) Springing Durable Power of Attorney (Long Form)

[Counsel is cautioned that this form contains various alternative provisions and phrases and should not be used “as-is” under any circumstances. The document will have to be tailored to the attorney’s specific use of the document. All alternative provisions, comments, and variables for document assembly are included in brackets and provide counsel with discussion points in developing the Durable Power of Attorney for the client.]

Durable Power of Attorney

I, [Principal], of [Address1, Address2, City, State, Zip], [County] County, Missouri, do hereby appoint [my] [Relationship], [Agent Name], as my attorney in fact to take the actions set forth in this instrument. It is my intention that [Agent Name] as my attorney in fact shall have general powers to act in a fiduciary capacity on my behalf with respect to all lawful subjects and purposes, in accordance with the Durable Power of Attorney Law of Missouri, §§ 404.700 et seq., RSMo 2000.

[I, [Principal], of [Address1, Address2, City, State, Zip], [County] County, Missouri, do hereby appoint [Co-Agent1 Name] and [Co-Agent2 Name] as my attorneys in fact to take the actions set forth in this instrument, [either alone or acting in unison.] [provided, however, that any action taken by my attorneys in fact must be in unison.] If either of the above-named attorneys in fact is unable or unwilling to serve for any reason, the other shall serve alone as my attorney in fact. It is my intention that [Co-Agent1 Name] and [Co-Agent2 Name] as my attorneys in fact shall have general powers to act in a fiduciary capacity on my behalf with respect to all lawful subjects and purposes in accordance with the Durable Power of Attorney Law of Missouri, §§ 404.700 et seq.]

[The appointment provisions above are in the alternative.]

Article I

Durability Provision

THIS IS A DURABLE POWER OF ATTORNEY, AND THE AUTHORITY OF MY ATTORNEY IN FACT, WHEN EFFECTIVE, SHALL NOT TERMINATE IF I BECOME DISABLED OR INCAPACITATED OR IN THE EVENT OF LATER UNCERTAINTY AS TO WHETHER I AM DEAD OR ALIVE.

Article II

Effective Date

A. It is my intention that this Durable Power of Attorney shall become effective, and that my agent and Attorney in fact shall be granted the powers set forth to exercise on my behalf, only if I should hereafter become disabled or incapacitated or in the event of later uncertainty as to whether I am dead or alive.

B. For purposes of this instrument, I direct that I shall be deemed to be “incapacitated” or “disabled” in the event of the occurrence of either of the following:

1. [If two medical doctors who are familiar with my mental and/or physical health, certify] [If a medical doctor familiar with my mental and/or physical health certifies], in writing, that my mental and/or physical condition is impaired to such extent that I am unable to personally carry out the majority of the powers that are set out in this document.

2. If the Probate Division of the Circuit Court or Circuit Court of the county in which I may now or hereafter reside, or such other court that may hereafter have jurisdiction over me or over my affairs, enters a decree or judgment that I am a “disabled person” or an “incapacitated person,” as those terms are defined in § 475.010, RSMo 2000, or other comparable statute.

C. It is my intention that this Durable Power of Attorney constitutes what is sometimes known as a “Springing” Durable Power of Attorney.

D. My attorney in fact may prepare and deliver to any third party an affidavit certifying that the above conditions have been met and that this instrument is in full force and effect. Any third party may rely on such affidavit and shall be indemnified in accordance with Article VIII of this instrument.

Article III

Successor Attorney in Fact

If [Agent Name] is unable or unwilling to serve as my attorney in fact for any reason, I then appoint [my] [Relationship2], [Successor Agent], as my attorney in fact to take the actions set forth herein. [If [Successor Agent] is unable or unwilling to serve as my attorney in fact for any reason, I then appoint [my] [Relationship3], [Second Successor Agent], as my attorney in fact to take the actions set forth herein.] It is my intention that any successor attorney in fact named herein shall have the same power and authority as my original attorney in fact, and any reference to my attorney in fact shall also refer to any successor who may be serving.

[The successor provision can be made to mirror the above co-attorney in fact provision if the principal wants the successors to serve concurrently.]

Article IV

Asset Powers

[Except as provided in Article IX herein,] [m][M]y attorney in fact shall have the following specific powers and authority without derogation or limitation to the general powers granted under the Durable Power of Attorney Law of Missouri:

A. Property. To buy, sell, lease, rent, assign, transfer, convey, develop, improve, modify, maintain, protect, repair, preserve, insure, alter, exploit, mortgage, hypothecate, pledge, or otherwise exercise any rights I may have with respect to, or in any other manner deal with, any personal, real, intellectual, or intangible property I may own, either individually or jointly with another person.

B. Banking. To establish, maintain, modify, terminate, make deposits to, make withdrawals from, and grant security interests in accounts of all kinds, including, without limitation, checking and savings accounts and certificates of deposit; to negotiate, write, endorse, assign, or otherwise transfer any checks or other instruments with respect to any such accounts; to contract on my behalf with any banking or other financial institution with regard to such accounts; to borrow money on such terms and conditions that my attorney in fact deems reasonable, and to pledge any personal, real, intellectual, or intangible property I may own as collateral thereon; to access any safe deposit box rented in my name, whether in my name alone or jointly with another person or persons, regardless of whether I have signed any type of contract or document restricting my right to have access to or control over such safe deposit box through an attorney in fact; This power specifically relies on § 404.710.9, RSMo 2000, of the Durable Power of Attorney Law of Missouri, which makes unenforceable any agreement purporting to limit the rights of the principal to act through an attorney in fact.

C. Financial. To borrow money or make loans on my behalf with any financial institution or individual, including any relative of mine, on such terms and conditions as my attorney in fact deems reasonable under the circumstances; to enter into, sign, or execute and deliver any promissory notes, mortgages, deeds of trust, security agreements, pledge agreements, or other security instruments in connection with any loan or borrowing made on my behalf; to establish, maintain, modify, terminate, or otherwise deal with any credit card account in my name...