Why Is It Important that a Massachusetts Power of Attorney Be “Durable” and Detailed?

A power of attorney is a written document through which you authorize someone (usually known as your agent or attorney-in-fact) to take actions for you.  The powers that are given can be limited or quite broad.  Unfortunately, if your power of attorney is not “durable,” your agent or attorney-in-fact may find that the power of attorney is useless when you are incapacitated and it is needed most.

The Massachusetts “durable” power of attorney is similar to a power of attorney that is not durable, but there is one huge difference between the two types.  The difference involves whether the agent or attorney-in-fact continues to be empowered to take action for you once you have become disabled.  A power of attorney that is not durable is no longer effective if you become disabled, whereas a “durable” power of attorney continues to be effective even after your disability.

Under the English common law upon which Massachusetts law is based, if you signed a power of attorney naming someone to act on your behalf, the person would have authority only for as long as you remained competent.  If you later became disabled or incompetent, the power of attorney became null and void.  That would mean a court process would then be required for someone to be able to step in and handle your financial affairs upon your disability.  To minimize the need for court involvement by allowing a power of attorney to remain effective after disability or incapacity, decades ago the Massachusetts legislature passed a law (Massachusetts General Laws, Chapter 201B) to allow for the creation of a “durable” power of attorney.  The way to make a power of attorney become durable is to add a phrase that makes it clear that the powers detailed in it remain effective even after disability.

That Massachusetts durable power of attorney laws were changed when part of the Massachusetts Uniform Probate Code took effect on July 1, 2009, and, as I’ve reported in a previous post, Chapter 201B was repealed. (See Is Your Massachusetts Durable Power of Attorney Still Valid?)  Unfortunately, when a law is replaced, actions taken under it are still effective, but when a law is repealed, those actions are treated as though the law was never there. Therefore, any durable power of attorney executed before July 1, 2009 may be invalid, especially if it makes specific reference to Chapter 201B.

The major problem with any durable power of attorney is that it is only as good as the respect it receives from a self-serving bureaucrat. (If you bring money to a bank using a durable power of attorney, you may be greeted with open arms; if you try to take money out of a bank using a durable power of attorney, often you’ll hear that it needs to be reviewed by the bank’s lawyer.) There is never any guarantee that third parties, such as banks or insurance companies, will honor a power of attorney even if it is durable. Such problems often arise when there has been a long passage of time since the power of attorney was executed and it is thought to be “stale.”  Fortunately, the current Massachusetts law addresses this problem by stating that no durable power of attorney ever become stale, and that  if you rely on a power of attorney in good faith, you will not incur any liability if you follow the instructions of the agent or attorney-in-fact.

Unfortunately, the other reason a durable power of attorney may be rejected is based on the specific powers granted to the agent or attorney-in-fact. While theoretically the document need only state that you want to give the power to do absolutely anything, many financial institutions want to see specific powers that pertain to them before they are willing to respect a durable power of attorney.  Therefore, a well-drafted Massachusetts durable power of attorney is often several pages long.

To the extent that a power of attorney is not effective when needed, the only alternative would be to file for conservatorship under the Massachusetts Uniform Probate Code, and that process is time-consuming, detailed, subject to challenge by well-meaning and not-so-well-meaning relatives, and, as you might expect, expensive.  For those reasons, a well-drafted durable power of attorney is often the most important document that a person could execute.