The Massachusetts durable power of attorney (durable POA) is a document one party, called the principal, uses to authorize another party, called the agent or the attorney-in-fact, to act on their behalf and represent them before financial, governmental, medical, and other institutions and third parties.
The term durable means that the power of attorney will remain valid and effective even if the principal becomes incapacitated.
The principal can use the durable power of attorney in any situation where they are not able to act for themselves. This can happen due to their unstable physical or mental health (like dementia and Alzheimer’s disease) or when they simply lack the professional knowledge to deal with certain financial or legal matters.
Durable Power of Attorney Laws & Requirements in Massachusetts
Laws & Requirements
Signing requirements: The Massachusetts law doesn’t provide any signing requirements. However, it is recommended that the principal sign the durable power of attorney before at least two witnesses and a notary public.
Statutory form: Massachusetts law doesn’t provide a statutory form for a durable power of attorney.
“Durable” as defined by the state law: Section 5–501 provides that the durable power of attorney must include the wording, ''This power of attorney shall not be affected by subsequent disability or incapacity of the principal or lapse of time,'' or ''This power of attorney shall become effective upon the disability or incapacity of the principal.''
How to Fill out a Durable Power of Attorney in Massachusetts
#1. Designate an Agent
Firstly, insert the first and last names and mailing addresses of the principal and the agent.
When choosing an agent, you should pay attention to the following factors:
The agent must be of legal age and have the legal capacity to act.
They must be trustworthy, especially if they are authorized to make decisions regarding your finances and health care.
The agent must be willing to represent you and protect your interests.
They must be located near the place where a certain action needs to be taken.
In this section, you can also name the successor agent, whose role will be to represent you in case the primary agent loses capacity or is otherwise unable to act on your behalf.
#2. Grant Authority
After you’ve selected the agent, you should determine their scope of authority.
The Massachusetts durable power of attorney form provides three ways to grant the authority:
Scope of Authority
General authority. Here, you will enable your agent to take all the necessary steps and interact with all third parties when acting on your behalf. You can limit the general power of attorney by naming the activities the agent is not allowed to undertake.
Partial authority. With this option, you can select the authorities you want your agent to have by selecting them from the list of authorities provided in the durable power of attorney form. You can select the authorities you want your agent to have by signing your initials next to the relevant authority.
Special authority. This option is the most flexible since it enables you to describe the scope of authority in your own words in the designated area. In this way, you can include the authorities that are not provided in the durable power of attorney form.
#3. Ensure the Form is Durable
In Massachusetts, the power of attorney is not durable by default. Therefore, you must use specific language when drafting the power of attorney to highlight its durability.
#4. Sign the Form
Although Massachusetts law doesn’t set this as a requirement, you should provide the signature on the durable power of attorney before the notary public and at least two witnesses.
#5. Notarize the Form
The Massachusetts law also doesn’t set notarization as a requirement for the validity of the durable power of attorney. However, by notarizing the document, the notary public confirms its authenticity, which prevents any potential disputes in this regard.
#6. Store Your Durable Power of Attorney Form
After finalizing the document, you should keep it in your possession and store it in a safe place.
How to Revoke a Durable Power of Attorney in Massachusetts
The best way to revoke the Massachusetts durable power of attorney is to issue a revocation letter. It should include the name of the agent and the date of issuing the power of attorney you want to revoke.
After issuing the letter, you should give a copy to the agent and to every third party they are interacting with on your behalf.