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.
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.
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.
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.