A Massachusetts durable power of attorney form is a document that grants someone (the “agent” or “attorney in fact”) the legal authority to act and make financial decisions for another person (the “principal”). Unlike a regular non-durable power of attorney (POA), a durable power of attorney (DPOA) stays in effect even if the principal becomes incapacitated and legally can’t make their own decisions.
Depending on their preferences, the principal can grant the agent control over their personal property, real estate, business transactions, investments, and any other financial affairs they describe in the document. An agent should choose someone they trust, such as a family member or close friend, as their agent who will act in their best interest.
Laws
The principal can make a power of attorney durable by including one of the following statements or similar language:
“This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time.” / “This power of attorney shall become effective upon the disability or incapacity of the principal.”
- Statute: Massachusetts Gen. Law, Part II, Title II, Chapter 190B, Article V.
- Presumed Durable: No (Massachusetts Gen. Law § 5-501).
- Signing Requirements: State laws don’t specify signing requirements, but a witness or notary public should witness the document. This way, you can more easily prove the document’s validity if questions arise. At a minimum, the principal should sign and date the form.
- Notarization: Not required.
- Statutory Form: No.
Specific Powers and Limitations
Agent’s Authority
§ 190B:5-502 explains that all acts an attorney-in-fact performs in accordance with a DPOA when the principal is disabled or incapacitated have the same effect as if the principal were competent and not disabled.
Relation to Court-Appointed Fiduciary
If a court of the principal’s domicile appoints a fiduciary, such as a guardian of the estate and conservator, the attorney-in-fact must answer to the fiduciary and the principal. The fiduciary can revoke or amend the DPOA in the same way the principal could if they weren’t disabled or incapacitated (§ 190B:5-503).
Using a DPOA, a principal can select a preferred conservator or guardian. The court will consider this nomination if it needs to initiate protective proceedings for the principal’s personal care or estate management in the future. Unless there is a significant disqualification or reason, the court will honor the principal’s latest nomination when it makes its appointment.
Safekeeping and Registration
You only have to record your document if you assign an agent power over real estate matters. If this situation applies to you, you should record it with the Registry of Deeds in the county (or counties) of your real estate.
Otherwise, you and the attorney-in-fact should retain copies for your records. You may also ask a financial institution, like a bank or credit union where you regularly conduct business, to keep copies. This way, they’ll know the scope of your attorney-in-fact’s authority.
Additional Resources
- Massachusetts Office of the Attorney General: Provides information on POAs.
- MassLegalServices: Offers free information about individuals’ legal rights.
- Massachusetts Bar Association: Provides access to a free legal research library and a lawyer referral service.
