What You Need to Know About Power of Attorneys in Massachusetts
A Power of Attorney [POA] in Massachusetts, as in other states, is the grant of power to an individual to make the decisions you ordinarily would make in matters of financial, and business. It is an essential part of an estate plan, especially if you have business interests at stake or financial assets. Creating a POA is important no matter what your economic status is, and doing it now is highly advisable since you do not want these matters left up to the Probate Court.
You create the power while you are mentally competent and of sound mind. The principal is the person who creates the POA in Massachusetts. Most will, appoint a spouse, relative, business partner or close friend as the agent.
Generally, the agent is authorized to sign legal documents on your behalf, make all material decisions about your business interests, and take control of your assets and property. You will want someone you totally trust to handle such matters not only for your own benefit but for that of your family and heirs.
A POA is either “durable” or it is not. The “durable’ designation means that the POA authority given to your agent continues if you become incapacitated or are no longer mentally competent to make material decisions about your business or finances. If it is not “durable”, the POA ceases to be valid when you do become incapacitated.
Specificity is Essential
There are general and limited POAs. A limited, or specific POA, is what it implies. Your agent is given limited authority to carry out very specific tasks, which must be described in detail. For example, if your POA states that the agent is to open a bank account, a financial institution may not allow the agent to do so unless it stated what kind of account and which particular bank. If the account is opened, the financial institution may not allow the agent to make withdrawals absent a specific authority written in the POA document.
A general POA is more broad and allows the agent comprehensive power to act on the principal’s behalf such as opening bank accounts and how assets are to be handled. It can even grant the agent the power to make a will for the principal. In any event, specificity is essential in any POA. Allow your estate planning lawyer to provide the language for your POA, whether it is general or specific.
The Durable Aspect of a POA
As a durable POA, this allows the agent to continue in his or her capacity to make decisions for the principal when the principal becomes mentally incapacitated. The POA becomes effective immediately upon signing.
In any event, the General Laws of the Commonwealth of Massachusetts require that certain language be in any POA in order for it to be valid, such as: “This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time.” This language or any similar to it creates the durability characteristic and allows the POA document to remain viable regardless of how much time passes.
A POA, however, can be revoked so long as you, as the principal, remain competent. It can also have an expiration date so that the POA is no longer valid after that date. But even if there is durable language in the POA, a legal appointed guardian, by a court of proper jurisdiction, of the principal who is incapacitated retains the power to revoke the POA.
If you do not have a durable POA in place, then the court will appoint a guardian to take over your affairs in the event you become mentally incapacitated. A court might appoint a close relative whom you never trusted or had faith would make sound decisions about your property and assets should be handled. Further, leaving this in the hands of the Massachusetts Probate Court will entail added expenses and other possible legal implications as well as the uncertainty of probate proceedings over which you have no control.
Consult Estate Planning Lawyer Patricia Bloom-McDonald
A POA is highly recommended as part of an overall estate plan. Discuss this with estate planning lawyer Patricia Bloom-McDonald who has considerable experience with creating POAs that will be accepted by financial institutions and that comports with state law. Call for an appointment with Attorney Bloom-McDonald for all of your estate planning needs.