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To revoke the DPOA, one must notify the attorney-in-fact in writing that the power has been revoked.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