Durable Power of Attorney in Massachusetts

By Jeffry Olson, J.D.

Durable Power of Attorney in Massachusetts

By Jeffry Olson, J.D.

A power of attorney (POA) allows one person, the agent, to act on behalf of another, the principal. In the state of Massachusetts, like other states, a durable POA remains effective even after the principal is incapacitated. It allows the agent to act on behalf of the interests of the principal, without the need for court intervention.

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Differences between limited and general authority.

In the state of Massachusetts, a power of attorney can be either limited or general in scope. Limited authority exists for a specific purpose described in the document itself. For example, it could be a real estate transaction or the management of a certain account. General power, however, grants the agent broad authority over the principal's finances.

A durable POA can take effect after the principal signs the document, allowing the agent to act immediately on the their behalf. It can also take effect upon the occurrence of some future event, typically the incapacitation of the principal. This is sometimes referred to as a springing power of attorney. However, there might be other instances when the principal chooses a future date to give the agent authority. An example could be if the individual is going away on military leave for a few months, and only wants to give the agent authority during that time period.

Understanding the language in the document.

The language used is extremely important. In the state of Massachusetts, language such as "this power of attorney will survive and not be affected by the disability or incapacity of the principal" is necessary. The language does not need to be exact, but it must clearly state that the power does not end with the disability of the principal. However, there are times when the power may contain an expiration date. Even if the document does not contain one, the principal may revoke it at any time.

What happens when no durable power of attorney exists.

If a principal does not have one and becomes incapacitated, the Massachusetts Probate Court has legal authority over the principal. The court appoints a guardian to oversee the affairs. This would include making financial decisions, signing documents, making healthcare decisions, and controlling the principal's property and other assets. The court frequently appoints a family member as guardian, but it is within the discretion of the court. The probate process adds considerable expense and uncertainty. Establishing a durable POA allows the principal to control who makes decisions on their behalf, avoiding the intervention of the courts.

In the state of Massachusetts, naming an agent as durable power of attorney allows an individual to determine who will make financial decisions on the principal's behalf, even after they become incapacitated. Without it, a Massachusetts court appoints a guardian to make decisions on the principal's behalf. Granting an individual durable POA does not interfere with the ability of the principal to act on their own behalf. To avoid the uncertainty and expense of a court proceeding if you become incapacitated, choose someone you trust as soon as possible so that you will be better protected in the event you become incapacitated in the future.

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