Durable Power of Attorney in Massachusetts

By Tom Streissguth

A durable power of attorney, or POA, allows an agent to act on behalf of a principal — the person granting the power — even after the principal suffers an incapacitating illness. Massachusetts, like other states, allows individuals of sound mind to create a durable power of attorney, which can help safeguard the interests of the principal, his family and heirs.

General and Specific POA

A durable power of attorney in Massachusetts can be general or specific. In a specific POA, the agent is authorized to act only in certain capacities, which the document must describe in detail. A general power of attorney grants broader powers to the agent, allowing him to act in a variety of matters, from financial decisions to health care to the preparation and execution of a will.

Effective Date

A durable power of attorney in Massachusetts can take effect immediately on signing by the principal; such a POA is also known as a "present" power of attorney. Alternatively, the document can take effect at a later time if and when the principal suffers an incapacitating illness or injury. A durable power of attorney that goes into effect on a specific event is also known as a "springing" power of attorney.

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Document Wording

According to Massachusetts law, the durable power of attorney must contain the phrase “This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time,” or similar language indicating that in the event of disability, the authority granted in the document remains valid. A durable power of attorney may contain an expiration date, beyond which it lapses. It also may be revoked as long as the principal is not incapacitated. if the principal is incapacitated, a legal guardian would have the power to revoke the document. The agent is at all times answerable to a court-appointed legal guardian or fiduciary.

Probate

Without a valid, durable power of attorney in place, the Massachusetts Probate Court will have legal authority over the affairs of an individual who is incapacitated. The court will appoint a guardian to make decisions, sign documents and handle the individual's health, business and family decisions, and take charge of the property and assets. A court-appointed guardianship means additional expense and legal complications for the principal and his family, as well as uncertainty over the outcome of any probate matters.

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The Difference in Probate & Family Court Guardianship
 

References

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New Jersey Durable Power of Attorney

Granting power of attorney to someone you trust allows that person to take care of your legal, financial and medical affairs on your behalf. In New Jersey, a "durable" power of attorney lets another person take care of your affairs even if you become incapacitated.

Types of Power of Attorney for Elderly Family Members

The health of an aging family member may determine the type of power of attorney she will agree to or is able to sign. A power of attorney is a document whereby someone known as the principal will appoint an agent or attorney-in-fact to act on her behalf. A principal often grants power of attorney to a trusted family member with a keen business sense so that she knows her affairs are being handled according to her wishes.

The Responsibilities of Medical Durable Power of Attorney for the Elderly

If a person becomes incapacitated, perhaps because of a mental illness like dementia, he can no longer make health care decisions for himself as he once did. If he created a durable medical power of attorney, he named an agent to make his health care decisions if and when he becomes unable to do so and this agent is responsible for following his wishes closely and acting in his best interests.

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