Durable Power of Attorney Lawyer, Massachusetts

A durable power of attorney is a document by which you designate another person, an agent, in writing, to be your “attorney in fact.” This authorization remains effective even if you should become disabled or incapacitated. If the POA is not durable, it will automatically be revoked when you become disabled—and if you become disabled or incapacitated, that is just when you need another trusting person to act on your behalf.

A durable power of attorney can be specific or general.

In a specific durable POA, the agent is authorized to act only in certain capacities, which the POA document must describe in detail. You can also specify which assets a power of attorney can control.

A general durable POA grants broader powers to the agent, allowing him or her to act in a variety of matters, from financial decisions to health care.

A durable power of attorney can take effect immediately on signing by the principal or at a later time or upon a condition occurring, like, for example, if and when the principal suffers an incapacitating illness or injury (Known as a springing durable POA).

A durable power of attorney should be signed in the presence of a Notary Public 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 similar language indicating that in the event of disability, the authority granted in the document remains valid.

A durable power of attorney may contain an expiration date, beyond which it lapses and is ineffective. If there is no date, it lasts until you die. The document may also be revoked as long as you, the principal, are not incapacitated. If you are incapacitated and have a legal guardian, the legal guardian would have the power to revoke the document.

If you do not have a valid, durable power of attorney in place and you become incapacitated, the Massachusetts Probate and Family Court will have legal authority over your affairs. If unchecked, the court will appoint a guardian to make decisions, sign documents and handle your health, business and family decisions, and take charge of your property and assets.

This stranger will create additional expense and legal complications for you and your family, as well as uncertainty over the outcome of any probate matters.

Instead, choose someone you trust to be your durable power of attorney.