How to Get a Durable Power of Attorney in Massachusetts

A durable power of attorney can play an important role in estate planning, helping to ensure that financial matters are handled according to your wishes should you become incapacitated. 

In Massachusetts, anyone who wants to get a durable power of attorney must follow the requirements outlined in the Massachusetts General Laws, including specifying the terms of the power of attorney in writing.

What is a durable power of attorney?

A durable power of attorney (POA) allows one person (the agent or attorney-in-fact) to make financial and legal decisions on behalf of another, the principal. In the state of Massachusetts, like other states, a durable POA remains effective even after the principal is incapacitated. It allows the agent to act on behalf of the interests of the principal, without the need for court intervention. 

Individuals who want to ensure that their wishes are fulfilled if they become mentally impaired must ensure that their durable power of attorney explicitly states that it remains effective in the event that they become disabled or incapacitated. 

Massachusetts General Law Chapter 190B, Article V, Sections 5-501 to 5-507 governs durable powers of attorney. The law requires the principal to state in writing that the durable power of attorney will not be affected by the principal’s subsequent disability or incapacity or by the passing of time or that it will go into effect if the principal becomes disabled or incapacitated. 

Differences between limited and general authority

In the state of Massachusetts, a power of attorney can be either limited or general in scope. Limited authority exists for a specific purpose described in the legal document itself. 

For example, it could be a real estate transaction or the management of a certain account. General power, however, grants the agent broad authority over the principal's finances.

A durable POA can take effect after the principal signs the document, allowing the agent to act immediately on their behalf. It can also take effect upon the occurrence of some future event, typically the incapacitation of the principal. This is sometimes referred to as a springing power of attorney. 

However, there might be other instances when the principal chooses a future date to give the agent authority. An example could be if the individual is going away on military leave for a few months and only wants to give the agent authority during that time period.

The language used is extremely important. In the state of Massachusetts, language such as "this power of attorney will survive and not be affected by the disability or incapacity of the principal" is necessary. The language does not need to be exact, but it must clearly state that the power does not end with the disability of the principal. However, there are times when the power may contain an expiration date. Even if the document does not contain one, the principal may revoke it at any time.

How to choose an agent-in-fact

Choosing the right agent to represent your interests should you become unable to make sound decisions is essential.

Look for the following qualities in the individual you choose as an agent:

• Reliability. Your agent should have a track record of consistently following through with both personal and professional commitments. 
• Trustworthiness. Your agent should be someone you trust. An agent must have integrity and a reputation for honesty. Many individuals choose family members as their agents for this reason.
• Understanding of wishes. An agent needs to fully comprehend what you want to happen should you become disabled or incapacitated and have the ability to act to honor your wishes. 
• Financial and legal experience. Selecting an agent who has experience handling financial matters and navigating legal processes can help ensure that your financial and legal matters are handled properly. 
• Availability. The agent must be willing and able to carry out the responsibilities of the durable power of attorney. 

Some people may consider appointing co-agents. With co-agents, the principal designates more than one person to make decisions on their behalf should they become incapacitated. Having co-agents might make sense in a situation where you want each agent to handle different aspects of your estate. 

For instance, an agent with financial expertise might manage your bank accounts and pay bills, while a co-agent who understands the ins and outs of property sales and purchases can handle your real estate transactions.

Keep in mind that if you explicitly require your co-agents to act jointly and they end up disagreeing, they may have to go to court before any legal or financial decisions can be made on your behalf. 

You might also want to add a successor agent to your durable power of attorney document. A successor agent serves as a backup in case the individual you originally appointed to function as your agent is unable or unwilling to fulfill their duties when the time comes. 

Whomever you choose as your agent, it’s essential that you discuss their responsibilities—and the circumstances in which they will be required to make decisions for you—before assigning them the role. 

How to create a Massachusetts durable power of attorney

Having an up-to-date durable power of attorney can help you feel confident that your financial affairs will be taken care of should you lose your ability to make competent decisions. 

The process of creating a Massachusetts durable power of attorney includes choosing an agent, ensuring the document includes the necessary language, and signing and notarizing the document.

Step 1. Select a trusted agent

The first step in creating your durable power of attorney is choosing an agent you trust who is available and willing to manage your financial and legal matters. 

Step 2. Draft the document

Once you have selected an agent, it’s time to draft your durable power of attorney document. You can use a standardized durable power of attorney form or get help from an attorney to make sure the document complies with Massachusetts law. 

The document needs to contain the necessary language and state that it remains effective—or goes into effect—if the principal becomes incapacitated. It should describe in detail the types of decisions it authorizes your agent to make for you. If you want the durable power of attorney to have an expiration date, the date needs to be included in the document. 

Consulting with a lawyer or using an online power of attorney service can help ensure that the durable power of attorney contains the language required to make the document valid and enforceable. 

Setting up your durable power of attorney with LegalZoom is fast, easy, and affordable. Simply answer a few questions and tell us who you want to assign as your agent, and we’ll create your power of attorney document. LegalZoom also has POA packages that include attorney support.

Step 3. Sign and notarize

Many states require notarization to validate a durable power of attorney. To be valid in Massachusetts, a power of attorney does not have to be notarized or witnessed. However, it is highly advisable that the principal sign the instrument in front of a notary public (especially if the power of attorney authorizes real estate transactions in Massachusetts) and two witnesses. Financial institutions generally prefer the use of notaries to minimize the chance of fraud.
 

How and when to revoke a durable power of attorney

You can revoke a durable power of attorney at any time as long as you are not incapacitated. Revoking the durable power of attorney in writing (and signing and notarizing the document) can serve as proof of the revocation. 

Make sure to notify the agent that you are revoking their power of attorney, and let any financial institutions or other relevant third parties know that the agent no longer has the authority to act on your behalf. 

Consider checking with an attorney to make sure your revocation document contains appropriate language and is legally binding. 

Once you have revoked the durable power of attorney, you have the option of drafting a new document and appointing a different agent to represent you. 

Situations in which you might want to revoke a durable power of attorney include the following:

• The agent becomes unable or unwilling to act on your behalf
• The agent is abusing their power
• Your relationship with the agent changes
• You decide you don’t want a power of attorney

What happens in MA when no durable power of attorney exists?

If a principal does not have a durable power of attorney and becomes incapacitated, the Massachusetts Probate Court has legal authority over the principal. The court can appoint a guardian to oversee the affairs. This would include making financial decisions, signing documents, making healthcare decisions, and controlling the principal's property and other assets. 

The court frequently appoints a family member as guardian, but it is within the discretion of the court. The probate process adds considerable expense and uncertainty. Establishing a durable POA allows the principal to control who makes decisions on their behalf, avoiding the intervention of the courts.

In the state of Massachusetts, naming an agent as a durable power of attorney allows an individual to determine who will make decisions concerning the principal’s financial future, even after they become incapacitated. Without it, a Massachusetts court appoints a guardian to make decisions on the principal's behalf. Granting an individual durable POA does not interfere with the ability of the principal to act on their own behalf. To avoid the uncertainty and expense of a court proceeding if you become incapacitated, choose someone you trust as soon as possible so that you will be better protected in the event you become incapacitated in the future.

FAQs

How is a durable power of attorney different from a normal POA?

The difference between a durable power of attorney and a regular power of attorney is that a regular power of attorney typically ends if the principal becomes incapacitated, while a durable power of attorney can last until the principal revokes the document or dies. 

How long does a durable power of attorney last?

A durable power of attorney can remain in effect until the principal dies, or it can terminate on a predetermined expiration date. If the principal’s spouse was their agent, a durable power of attorney can end if the couple gets divorced. A durable power of attorney can also be canceled if a court finds the document to be invalid. 

Is a durable power of attorney expensive?

While you can draw up your own durable power of attorney document for free, you may want help from a lawyer to ensure the document is valid and covers all your needs. 

The cost of a durable power of attorney depends on the principal’s needs and the complexity of their estate and can range from $300 to $600.

You can potentially save money on attorney’s fees by using an online power of attorney service. 

What decisions does a durable power of attorney let the agent make?

An agent can make decisions concerning the matters outlined in the durable power of attorney document, including financial, legal, and real estate decisions. 

Actions the agent can take on the principal’s behalf using the authority conferred by the durable power of attorney can include the following:

• Paying bills
• Handling real estate investments and transactions
• Filing taxes
• Entering into agreements or signing contracts
• Recovering debts
• Requesting benefits
• Taking legal actions
• Making healthcare decisions
• Managing bank account funds