None of us like to think about the possibility that one day we may be incapacitated or no longer able to care for ourselves. In Massachusetts, there is something called a Durable Power of Attorney (POA) which allows another person or entity (that you designate) to act on your behalf. This individual/entity is your “Attorney-in-fact” or “Agent.” You are entrusting them with the power to make crucial life decisions if you are no longer able to.
The person you appoint as your agent must be a legal adult (18 or older in MA) under no constraint or undue influence, have the capacity to understand what their responsibilities are, and the POA document must be signed with two adults witnessing the signing.
There are two kinds of durable powers of attorney: general and specific. In a specific POA, you limit the powers of your agent to what is written in the POA document. They cannot act on any other aspect of your life or wealth unless you give them that specific power and describe it in detail. The general POA, on the other hand, grants the agent with broad powers including preparing and executing your will, making health care and end-of-life decisions, and financial decisions.
Note: Your health care power of attorney works with your Health Care Proxy to give your agent the power to make medical decisions on your behalf, while the Advanced Care Directive details what you want your agent to do in terms of your future care and treatment. Your financial power of attorney gives your agent the power to make monetary, investment, and other financial decisions on your behalf.
Powers of attorney can take effect immediately or at a later date. If you so choose—and you are of sound mind—you can make the power of attorney effective as soon as you sign it. This is called a present power of attorney. On the other hand, if you want the POA to start if/when you become ill, disabled, or incapacitated, then you can indicate so on the document. Yet another kind of POA is the springing power of attorney. This means that the POA will go into effect if a certain condition you specify takes place.
Under Massachusetts law, the durable power of attorney remains valid in the event of a disability and 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 something along those lines. The agent answers to someone who has a fiduciary duty to you.
If you want to revoke the power of attorney, and you are of sound mind, you must notify your agent that they are relieved of that role. You may ask the agent to return any copies of the POA document to you and notify anyone that they have done business with on your behalf that they are no longer your agent. If you are incapacitated and cannot make this decision, then your legal guardian can revoke the agent on your behalf. An estate planning lawyer can help you with that.
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The Parents Estate Planning Law Firm, PC is focused on helping families and parents to maintain or get their Massachusetts estate planning started. We will review your powers of attorney if you already have it in place and advise you on if it needs updating or changing. We are your lifelong partners through all of life’s ups and downs. Please call our office at 978-263-6900 or contact us here to schedule your consultation today!
