A Brief Overview of Powers of Attorney

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 you to designate another person to act on your behalf. This individual is known as 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), have the capacity to understand what their responsibilities are, and the POA document should 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 making most legal and financial decisions.

Note: You need a separate Health Care Proxy to give your agent the power to make medical decisions on your behalf, and a Living Will to detail 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 and legal 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 known as a present power of attorney. Another kind of POA is known as a springing power of attorney. This means that the POA will only 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 should 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 similar. Your agent is someone who has a fiduciary (legal) duty to you to act in your best interests.

If you want to revoke the power of attorney, you must notify your agent that they are relieved of that role. You should 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.

Contact Us

At the Parents Estate Planning Law Firm, PC,  we are focused on helping families and parents create and maintain their Massachusetts estate planning. We will review your powers of attorney if you already have it in place and advise you 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!

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The Parents Estate Planning Law Firm

At The Parents Estate Planning Law Firm, PC, we answer your questions at your convenience; we stay in frequent communication; and we meet to discuss changes in life circumstances and in the law to ensure that your assets are protected.

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