Durable Power Of Attorney

The following article will provide some information regarding the purpose of a durable power of attorney.

What is a “durable” power of attorney?

A power of attorney is a type of legal document which transfers authority from one person (referred to as the “principal”) to another person who acts on the principal’s behalf (referred to as the “agent”). A power of attorney can be very broad in its scope (which is referred to as a “general power of attorney”) or can be limited to specific acts (which is referred to as a “limited power of attorney”). Unless otherwise stipulated, a power of attorney will terminate in the event that the principal ever becomes incapacitated. However, a “durable power of attorney” will remain valid even in the event that the principal becomes incapacitated.

What is a durable power of attorney used for?

A general durable power of attorney can be used to give an agent the authority to take any of the following actions on the principal’s behalf:

1. Access the principal’s bank accounts
2. Sign a contract or other important documents
3. Handle the principal’s financial transactions
4. Sell the principal’s car, house, or other property
5. Make gifts
6. Create a trust
7. Any other legal act that the principal has the right to do

In addition to a durable power of attorney, everyone should also have a health care proxy.  . This document is particularly useful when a medical emergency leaves a principal unconscious or otherwise unable to make choices about their medical care. The health care proxy will authorize someone to communicate with doctors and make medical decisions on behalf of the principal, even if the principal is expected to make a full recovery.

What is required for a durable power of attorney to be created in Massachusetts?

The following elements must be met to create a valid durable power of attorney in the state of Massachusetts:

1. A durable power of attorney must be entered into by a competent principal
2. A durable power of attorney must be in writing
3. A durable power of attorney must be signed in the presence of 2 adult witnesses, who must attest to the fact that the principal appeared to be 18, of sound mind, and under no constraint or undue influence
4. If there is a health care proxy (a document that names someone you trust as your proxy, or agent, to express your wishes and make health care decisions for you if you become unable to speak for yourself in the future), it must contain the identities of the principal and health care agent and indicate that the principal intends for this agent to have authority to make health care decisions on his behalf and specify any applicable limitations

Is a durable power of attorney revocable?

Yes. A durable power of attorney is revocable by one of the following actions:

1. Notification of the agent or health care provider orally or in writing or by any other act evidencing specific intent to revoke the health care proxy
2. Execution of a subsequent health care proxy
3. Divorce or legal separation where the spouse was the principal’s agent under the terms of the health care proxy

Do You Need Help Creating a Durable Power of Attorney? Contact a Boston Estate Planning Attorney

If you need help drafting a power of attorney document, Fisher Law LLC can help. Our Norwood estate planning attorneys will be happy to provide assistance and guidance throughout the process.