A durable power of attorney (“POA”) is a legal document that grants another person the authority to handle your financial and day-to-day affairs in the event of your incapacity. It is similar to a health care proxy in that it allows the delegation of decision making. However, the health care proxy is for medical decisions only.
The person creating the power of attorney is known as the principal. The person the principal designates for decision making is known as the agent or the attorney-in-fact. In Massachusetts, durable powers of attorney are governed by M.G.L. Ch. 201B. A power of attorney is considered durable if it explicitly states that it will remain in effect despite the principal’s incapacity.
Massachusetts Durable Power of Attorney Powers
The authority given to the attorney-in-fact under a POA can be broad or limited in scope. Often, they include a wide range of allowable actions typically referred to as “powers.” Such powers often include:
- Managing the principal’s financial affairs, including paying bills, collecting income, and handling bank transactions (writing checks, making deposits, and withdrawing funds).
- Buying, selling, and maintaining real estate.
- Entering into contracts and other agreements.
- Creating trusts for the principal.
- Managing a business.
- Making gifts (if expressly authorized).
You may choose to limit your agent’s authority to specific tasks or decisions by limiting the powers. However, it is important to grant the appropriate powers so your attorney-in-fact has the authority to act. Even with broad language in a durable power of attorney, courts have ruled that certain powers, particularly gift-giving, need to be explicitly stated in the document or the agent does not have that power to act. See Von Wedel v. McGrath, 180 F.2d 716 (3rd Cir. 1950)
Springing vs. Immediate Powers of Attorney
In Massachusetts, there are two types of durable powers of attorney: springing and immediate. A springing power of attorney only takes effect in the event of your incapacity, while an immediate power of attorney takes effect as soon as it is executed and remains in effect until it is revoked. A springing power of attorney can be problematic because the incapacity will typically need to be proved in writing by a physician. A springing power of attorney can cause a significant delay while a physician certifies the principal’s incapacity. And, some physicians may be unwilling to do so for liability reasons.
Selecting an Attorney-In-Fact
When choosing an attorney-in-fact for your POA, selecting someone you trust and who has your best interests in mind is important. Your agent will be responsible for making important decisions on your behalf. This person should be honest, responsible, reliable, and able to handle the tasks you assign them.
It is also important to have open and honest communication with your agent about your expectations and desires. Let them know what you want and do not want and provide them with any information or guidance they may need to make decisions on your behalf. This can help ensure that your wishes are respected and that your interests are protected in the event of your incapacity.
Conclusion
A Massachusetts power of attorney is a critical document to have as part of your estate plan. It helps protect you as the principal to avoid potentially inefficient and expensive probate court proceedings to appoint a conservator to handle your financial matters. An experienced estate planning lawyer can help you navigate the legal language and ensure that the document reflects your wishes, has flexible powers, and is tailored to your needs. Contact our will, trust, and estate planning lawyers today if we can help you with your estate planning needs.
