Durable Power of Attorney
What would happen if you fell into a coma tomorrow? Would someone be able to step in and handle important financial and legal decisions until you recovered, or would your bills go unpaid and your finances unmanaged?
No one likes to think about becoming incapacitated. But if you don’t have a power of attorney document granting a specific person decision-making authority, you may be putting yourself and your future in jeopardy.
A durable power of attorney (DPOA) in Boston can safeguard your well-being and your assets if an unexpected event takes place. Our firm can help you create one.
Understanding Durable Power of Attorney in Boston
For many people, a power of attorney is one of the most important documents in their estate plan. When you create a power of attorney, you (the principal) will choose a trusted person to serve as your agent, known as the “attorney-in-fact.” This individual can step in to handle important legal and financial decisions if you become incapacitated.
In Boston, durable power of attorney statutes declare that this document becomes effective as soon as you sign it. This means if you become incapacitated suddenly, your agent can step in without any delay.
Why You Need a Durable Power of Attorney for Financial Protection
Durable power of attorney costs are typically minimal when compared to the losses you could suffer if you don’t have a trusted person who can step in to manage your financial and legal affairs in the event the unexpected happens.
Here are some of the main reasons you should have a durable power of attorney in place:
- It can ensure continuity for your finances if you become incapacitated
- You can customize the document to make it as broad or as narrow as you want
- It can help you and your family avoid having to go to court to appoint a guardian or conservator
Having a durable power of attorney in place can also grant you peace of mind. You’ll know that if something happens and you can no longer manage your own affairs, someone you trust will be fully empowered to make the same decisions you would have made.
How Durable Powers Protect Your Financial Future
Choosing a primary agent for your durable power of attorney requires a lot of trust. But with a durable power of attorney, your agent has immediate authority to step in and handle your financial affairs.
In contrast, a springing power of attorney is a document that “springs” into effect upon the principal’s incapacity. In theory, that sounds ideal. In practice, however, springing powers of attorney are usually less effective for managing various arrangements.
Why is this? With a springing power of attorney, an agent must provide evidence of your disability to the court. This can take a considerable amount of time, especially if the court’s decision is contested. While the court is making its decision, your bills will remain unpaid and your affairs unmanaged.
When you create a durable power of attorney and name someone you trust as your agent, their authority begins the moment you become incapacitated.
If you aren’t sure whether you need a durable or springing power of attorney, an incapacity planning attorney in Boston can guide you in making the right choice.
Types of Durable Power of Attorney Under Massachusetts Law
There are several types of powers of attorney in Massachusetts. Regardless of the type you choose, if you want the document to be “durable,” Massachusetts requires you to include language specifying that it is durable. Otherwise, your agent may not be allowed to step in once you become incapacitated.
Here’s a brief overview of some of the most common types of durable powers of attorney in Massachusetts:
General
A general power of attorney is one that grants a trusted person broad authority to manage someone’s affairs. It often gives an agent the authority to manage the following:
- Day-to-day finances
- Paying bills and taxes
- Handling legal issues or ongoing litigation
- Real estate transactions
It’s important to note that you can choose a standard general power of attorney or a durable general power of attorney.
A standard power of attorney is canceled if you become incapacitated. It’s usually used for temporary situations (like if you’ll be out of the country but need someone to handle a real estate transaction on your behalf).
If you have a durable general power of attorney, your agent can continue to serve and make decisions on your behalf even if you become incapacitated.
Limited
When you work with a lawyer to create a power of attorney document, you have the freedom to make it as comprehensive or as limited as you like. Instead of creating general powers of attorney, many clients opt to create documents that grant authority over very specific, defined areas of their lives.
For example, if you own a business, you might create a durable business power of attorney that gives your business partner the right to make decisions regarding your company. You might create a separate financial power of attorney that gives your spouse the right to make personal financial decisions on your behalf.
When creating a limited durable power of attorney, it’s especially critical to work with an experienced law firm. Our team can draft documents that give your trusted person the authority to manage selected parts of your life while still protecting your interests.
Healthcare
In some states, a durable power of attorney allows your attorney-in-fact to make medical decisions for you. Massachusetts handles healthcare matters a little differently.
In our state, the only legally binding document that can designate someone to make healthcare decisions on your behalf is called a health care proxy. Your health care proxy nominates someone to make medical decisions for you only when a doctor determines that you are unable to make those decisions on your own.
In other states, a document that would be comparable to a health care proxy is called a “durable power of attorney for healthcare” or a “medical power of attorney.”
Some people confuse a health care proxy with a living will (sometimes called an “advance directive”). And it’s true that the documents are related, but they have separate purposes:
- A health care proxy is a legally binding document that appoints a health care agent to make medical decisions on your behalf
- An advance directive or living will is a non-binding document that provides guidance to your designated health care agent
If you choose to create a health care proxy with us, we’ll also typically guide you through the process of creating a living will or advance directive. Together, these documents can help ensure any future medical interventions are done in accordance with your wishes.
How to Create and Execute a Durable Power of Attorney in Boston
To ensure durable POA document preparation is handled effectively, you should seek out a qualified durable power of attorney law firm in Boston. Working with an attorney can help you ensure the document you create is legally enforceable.
Your attorney can also help you avoid accidentally giving your agent too much authority over your finances or other affairs.
To create the document, you’ll need to choose an agent. Most people choose someone who is both trustworthy and close to them, like a spouse or an adult child. If you’re unsure who to pick, your Boston financial power-of-attorney lawyer can help you decide.
You’ll then work with your lawyer to draft the document. This is an opportunity to tailor your DPOA to your needs. You can explicitly specify which powers you want your agent to have and which powers you do not. Once the document is finished, you and two witnesses will need to sign it before a notary public.
You should keep a copy for yourself and give one to your agent. You should also provide copies to your bank and any other financial institutions you work with.
Work With Jillise McDonough Law Firm
Your durable power of attorney is one of the most important tools in your estate plan. If it’s not properly executed, your loved ones may have trouble obtaining the legal authority they need to effectively manage your legal and financial affairs.
Before you create your power of attorney document, however, it’s imperative to find a law professional who is deeply familiar with Boston durable power of attorney laws. At Jillise McDonough Estate Planning Law Firm, we focus on estate planning. Our team can help you draft a durable power of attorney that offers you priceless peace of mind.
If you’re looking for a durable power of attorney attorney in Boston, MA, contact us today to learn more about how we can serve you.
Frequently Asked Questions
Is a Durable Power of Attorney Automatically Durable in Boston?
As long as your power of attorney document explicitly states that it will remain in effect if you become disabled or incapacitated, it’s considered to be automatically durable.
Who Can Be Named as an Agent Under a Boston Durable Power of Attorney?
Legally speaking, anyone who is at least 18 years old and legally competent can be designated as an agent. However, you should be careful when choosing someone to serve in this role. Giving authority to the wrong person could lead to serious financial and legal consequences.
What Powers Can a Durable Power of Attorney Grant in Massachusetts?
A durable power of attorney can grant nearly any power that is related to managing legal and financial affairs. When you create this type of legal document, your Boston financial power of attorney lawyer can help you tailor it to make it as broad or as narrow as you’d like.
Does a Durable Power of Attorney in Boston Require Notarization?
A durable power of attorney doesn’t always have to be notarized. However, there are many cases (including real estate transactions) in which a document isn’t legally enforceable unless it’s been notarized. If you’re working with an elder law power of attorney lawyer, for example, they’ll typically recommend notarizing your DPOA.
Do Witnesses Need to Sign a Durable Power of Attorney in Massachusetts?
Yes, two witnesses must be present and sign the document in front of the creator and a notary. The two witnesses must be “disinterested,” meaning they aren’t the attorney-in-fact, a relative, or anyone who could potentially benefit from the arrangement.
When Does a Durable Power of Attorney Become Effective in Boston?
A durable power of attorney for finances or legal affairs becomes effective immediately after you sign it. This is what sets it apart from a springing power of attorney. In practice, however, your agent or attorney-in-fact won’t step in to manage your affairs unless you become incapacitated.
Can I Revoke a Durable Power of Attorney in Massachusetts?
Yes, as long as you’re deemed legally competent, you have the authority to revoke or amend a durable power of attorney at any time.
Can a Durable Power of Attorney Be Used for Real Estate Transactions in Boston?
Generally, yes. When you create a power of attorney document, you can define its scope. If you want your attorney-in-fact to be able to carry out real estate transactions on your behalf, you and your statutory power of attorney lawyer should make sure the legal document explicitly states that.
Is a Boston Durable Power of Attorney Valid Outside Massachusetts?
In most cases, a power of attorney created in Massachusetts will remain valid if you move to another state. However, most courts scrutinize out-of-state documents more closely. If you can create a new power of attorney in your new state, that’s usually ideal.
Can a Durable Power of Attorney Override a Guardianship in Massachusetts?
Actually, the opposite is usually true. If a court appoints a guardian for you, it means there’s evidence that you can’t manage your own affairs (and you may not have been in your right mind when you appointed an agent through a durable power of attorney). Most of the time, a court-ordered guardianship will suspend the authority of the agent designated under the power of attorney document.
