Finance
Instrument: Durable power of attorney (DPOA)
What is it for?
The durable power of attorney (DPOA) allows any person age 18 or older (the “principal”) to appoint an attorney-in-fact to make property decisions on his or her behalf.
What does it do?
The DPOA allows a principal to appoint an attorney-in-fact the authority to make decisions about the principal’s property. All acts done by an attorney-in-fact have the same effect and inure to the benefit of and bind the principal as if the principal were “competent”. Mass. Gen. Laws ch. 190B § 5-502.
The DPOA may be either “general,” i.e. applicable to all property matters, or “specific,” i.e. limited to one or category of actions.
Third parties are not liable for acting in good faith reliance on a DPOA. Mass. Gen. Laws ch. 190B § 5-507.
How does one make it?
Massachusetts’ DPOA statutes does not require witnesses or notarization.
In order to be durable, the writing must contain such words as, “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,” evidencing that the principal intends the authority to be durable. Mass. Gen. Laws ch. 190B § 5-501(a). If such language is not included the POA will not be durable, and will not remain in effect upon a finding of incapacity.
When does it come into effect?
The DPOA may come into effect either immediately or upon the incapacity of the principal. Mass. Gen. Laws ch. 190B § 5-501. If a DPOA comes into effect upon the incapacity of the principal, it is sometimes called a “springing” DPOA.
How long does it last?
The DPOA ends when the attorney-in-fact has actual knowledge of the principal’s death or revocation. Mass. Gen. Laws ch. 190B § 5-504(a). Similarly, if the POA is not durable, then it ends when the attorney-in-fact has actual knowledge of the principal’s death or incapacity. Mass. Gen. Laws ch. 190B § 5-504(b).
How does one end it?
To revoke the DPOA, one must notify the attorney-in-fact in writing that the power has been revoked. One should also ask the attorney-in-fact to return any copies of the power of attorney document to you. One should also notify any others that may have received the document of the revocation.
What does an example look like?
There is no statutory form for the DPOA.
What else should one know?
Appointment of a guardian does not automatically revoke the DPOA; however, the guardian retains the same ability as the principal to revoke it. Mass. Gen. Laws ch. 190B § 5-503.
Massachusetts’ DPOA is not based on the Uniform Power of Attorney Act.
Last updated April 2021
Education
Instrument: Shared decision-making
What is it for?
603 Mass. Code Regs. 28.07(5)(b) allows a student to “choose to share decision-making.” This avoids parental rights under the Individuals with Disabilities Education Act (IDEA) transferring to the student.
What does it do?
By sharing decision-making, a student co-signs the individualized education program (IEP) along with an adult of that student’s choice. That adult can participate in IEP meetings and take actions with respect to the student’s education together with the student.
How does one make it?
The student must make the choice to share decision-making in the presence of the IEP Team and the choice will be documented in writing in the student’s IEP.
When does it come into effect?
Immediately when it is recorded in writing.
How long does it last?
Until the end of the student’s eligibility for special education services under the IDEA.
How does one end it?
The student may revoke shared decision-making at any time. DESE, Admin. Advisory SPED 2011-1.
What does an example look like?
The Massachusetts Department of Elementary and Secondary Education does not have a shared decision-making form on its website. School districts may have developed their own forms.
What else should one know?
Massachusetts requires school districts to affirmatively obtain the consent of students choosing shared decision-making to continue to receive special education services. In the event of a disagreement between a student who has chosen shared decision-making and the person whom the student has chosen to share with, then the student’s decision prevails. Massachusetts appears to be the only State that provides this option.
Instrument II: Delegation of rights
What is it for?
A student receiving special education services may “delegate continued decision-making to his or her parent.” 603 Mass. Code Regs. 28.07(5)(c). This avoids parental rights under the IDEA transferring to the student.
What does it do?
By delegating rights, a student formally allows a parent or another adult to make educational decisions and exercise parental rights under the IDEA on his or her behalf. The delegation is designed to allow a student to maintain the parent’s role as educational decision-maker before the student turned 18 years old.
How does one make it?
The student must choose to delegate rights in the presence of at least one representative of the school district and one other witness and shall be documented in written form and maintained in the student record.
When does it come into effect?
Immediately when it is recorded in writing.
How long does it last?
Until the end of the student’s eligibility for special education services under the IDEA.
How does one end it?
The student may revoke a delegation of rights at any time. DESE, Admin. Advisory SPED 2011-1.
What does an example look like?
The Massachusetts Department of Elementary and Secondary Education does not have a delegation of rights form on its website. School districts may have developed their own forms.
What else should one know?
None.
Last updated April 2021
Health
Instrument: Health care proxy (HCP)
What is it for?
The health care proxy (HCP) allows a “competent adult” (“the principal”) to delegate to an agent and an alternate agent the authority to make health care decisions on the principal’s behalf. (Every adult is presumed competent for the purposes of executing an HCP. Mass. Gen. Law ch 201D, § 2.)
What does it do?
The HCP grants the agent the authority to make any and all health care decisions on the principal’s behalf that the principal could make, including decisions about life-sustaining treatment, subject, however, to any express limitations in the document. In doing so, the agent must make decisions in accordance with the agent’s assessment of the principal’s wishes, and if those wishes are unknown, then in the principal’s best interests. Mass. Gen. Law ch 201D, § 5.
How does one make it?
To be valid, the HCP must do 4 things: identify the principal and agent; indicate that the principal intends the agent to have authority to make healthcare decisions on the principal’s behalf; describe the limitation, if any, that the principal intends to impose upon the agent’s authority; and indicate that the agent’s authority shall become effective if it is determined that the principal lacks capacity to make health care decisions. Mass. Gen. Law ch 201D, § 4.
The HCP also requires two witnesses to sign the document other than the agent.
When does it come into effect?
The agent’s authority begins only after a determination is made that the principal lacks the capacity to make or to communicate health care decisions. Only the attending physician may make an incapacity determination and the physician must do so in a writing to be included in the principal’s permanent medical record that describes the cause and nature of the incapacity as well as its probable duration. However, if the principal objects to a decision made by the agent, then the principal’s objection will prevail. Mass. Gen. Law ch 201D, § 6.
How long does it last?
The HCP takes effect immediately and remains in effect until revoked by the principal or the principal dies, even after a period during which the principal was determined to lack capacity to make health care decisions. The agent’s authority, however, only is effective during the periods when the principal is determined to lack capacity.
How does one end it?
A principal may revoke a HCP by notifying the agent or a health care provider orally or in writing or by any other act evidencing a specific intent to revoke the proxy, including execution of a subsequent HCP or divorce or legal separation from a spouse appointed as agent. A physician who is informed of or provided with a revocation of the HCP is responsible for inserting the revocation in the principal’s medical record and notifying other providers. A physician’s determination of incapacity is not sufficient to show that the principal lacks capacity to revoke the HCP. Mass. Gen. Law ch 201D, § 7.
What does an example look like?
The Mass.gov website provides a link to an HCP form developed by CaringInfo.
What else should one know?
Health care providers who receive a copy of the HCP are required to insert a copy in the principal’s medical record. Mass. Gen. Law ch 201D, § 5.
No person who is an operator, administrator or employee of a facility may be appointed as health care agent by an adult, who, at the time of executing the health care proxy is a patient or resident of such facility or has applied for admission to such facility unless said operator, administrator or employee is related to the principal by blood, marriage or adoption. Mass. Gen. Law ch 201D, § 3.
Last updated April 2021
General
No information available at this time.