Massachusetts Power Of Attorney

If you want someone to be able to handle financial matters or real estate transactions or sign legal documents on your behalf, you can have a document called a power of attorney (POA) drawn up. A POA is a simple document that allows you to designate someone you trust to handle your affairs for you to a certain extent; this person, known as an ‘agent’ or ‘attorney-in-fact, ‘is legally bound to act in your best interests.

Massachusetts recognizes two types of POAs:

  1. A Financial POA – This type of POA permits your trusted person to handle financial and business matters for you. There are three sub-types of this POA:
    1. Durable POA – This POA remains in effect even if you become incapacitated. In Massachusetts, your POA is not durable by default. The document must state that it remains effective even after incapacitation to be durable. Massachusetts’ laws suggest this wording: “This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time.”
    1. Limited POA—This POA ends if you become incapacitated. It is usually limited in scope and may state that it is to be used for a specific transaction or time frame.
    1. Springing POA—This POA doesn’t become effective until a triggering event occurs, such as becoming incapacitated.
  2. A Medical POA or Health Care Proxy – This type of POA allows your trusted person to make medical decisions on your behalf.

What Are the Legal Requirements of a POA in Massachusetts?

For your POA to be valid in Massachusetts, it must meet specific requirements:

Mental Capacity for Creating a POA – The person creating a power of attorney must be of sound mind.

Notarization Requirement – While Massachusetts law does not technically require a POA to be notarized, signing your POA in the presence of a notary public is very strongly recommended. Many financial institutions will only want to rely on a POA if it has been notarized.

How Does My Power of Attorney Terminate?

  1. If You Revoke It – You must be mentally competent to do so.
  2. If There Isn’t An Agent Available. – Always name a successor agent if at all possible
  3. If A Court Invalidates It –  A court could invalidate your POA if they conclude you weren’t mentally competent when it was signed, were a victim of fraud, or signed it under undue influence.

What Can My Agent Do On My Behalf

Usually, people give their agent broad power to handle all of their finances. However, you can give your agent as much or as little power as you wish. These are some of the things your agent can do on your behalf:

  • Use your assets to pay your everyday expenses and those of your family
  • Buy, sell, maintain, pay taxes on, and mortgage real estate and other property
  • Collect social security, medicare, or other government benefits
  • Invest your money in stocks, bonds, and mutual funds
  • Handle transactions with banks and other financial institutions
  • Buy and sell insurance policies and annuities for you
  • File and pay your taxes
  • Operate your small business
  • Claim property you inherit or are otherwise entitled to
  • Transfer property to a trust you’ve already created
  • Hire someone to represent you in court, and
  • Manage your retirement accounts.

Your agent must act in your best interests, maintain accurate records, keep your property separate from theirs, and avoid conflicts of interest. This is known as their ‘fiduciary duty ‘, a legal obligation to act solely in your best interest.

What Can’t My Agent Do On My Behalf

  • Create or change a will.
  • Break their fiduciary duty to act in the principal’s best interests.
  • Make decisions on behalf of the principal after their death.
  • Change or transfer the POA to someone else.

A Power of Attorney is a vital legal tool for individuals in Massachusetts who wish to ensure their affairs are managed effectively, even in their absence or incapacity. Whether opting for a Financial POA or a Medical POA, it’s crucial to understand these documents’ different types, legal requirements, and limitations. By carefully selecting a trusted agent and clearly defining their powers, you can maintain control over your affairs while providing for contingencies. Remember that while a POA grants significant authority, it also comes with strict fiduciary responsibilities for the agent. As with any important legal document, it’s recommended that you speak with a qualified attorney to ensure your POA is properly drafted, executed, and tailored to your specific needs and circumstances. Setting up a comprehensive POA can provide peace of mind and protect your interests in the long run.

 

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