Power of Attorney

A “power of attorney” is a type of legal document in which an individual authorizes another to make important decision – mostly, financial – for the individual. A properly drafted power of attorney can restrict how others conduct business, make an important decision, or engage in long term care planning for an incapacitated individuals and for individuals for whom the incapacity or disability is anticipated. Not only are guardianships expensive and often heavily regulated by the court, guardianship law is quite complex, which frequently makes it a wise idea for parties who seek to draft a power of attorney to obtain the expertise of a seasoned attorney.

The Advantage of Power of Attorney
A Power of Attorney is essential in any estate plan for several reasons. One substantial benefit is that a power of attorney can assist in avoiding the delay, expense, and need for a court appointed guardian or conservator in the event that the individual drafting the power of attorney becomes incapacitated or otherwise unavailable.

A Power of Attorney is a voluntary designation of authority to an agent by a competent individual. It is worth remembering that the individual who signed the Power of Attorney has not given up powers to the same functions, but has instead granted authority to an agent to perform these tasks on the individual’s behalf. “Durability” refers to a statement placed in a Power of Attorney document that allows individuals appointed in accordance with a Power of Attorney (“attorneys-in-fact”) to remain authorized despite the subsequent mental incapacity of the individual who signed the Power of Attorney. As a result, a Power of Attorney document can remain valid until a listed end date, an event, or the death of the appointed individual occurs. Without this durability statement, a Power of Attorney ends at the death or incapacity of the individual who created the document.

The Extent of Power of Attorney
A Power of Attorney grants another individual with a wide variety of tasks, which can include, but not necessarily limited to, the following: paying bills, depositing finances into the bank, buying and selling property, continuing to operate the incapacitated individual’s business, file tax returns and other tax documentation, fund trusts, make gifts to loved ones or organizations, and ensure that the incapacitated individual’s other estate planning tools are properly executed. In accordance with a Power of Attorney in the Commonwealth of Massachusetts, an attorney-in-fact is also empowered with the ability to talk to other agencies on behalf of the incapacitated individual. An attorney-in-fact is also provided with the ability to perform planning and transactions to make the incapacitated individual eligible for public benefits.

How a Power of Attorney is Created in the Commonwealth of Massachusetts
A Power of Attorney is a unilateral contract, which means that the document need only be signed by the individual drafting the document because the appointed attorney-in-fact accepts the document by acts or performance.

Who Can Execute a Power of Attorney
Anyone who is not a minor and possesses the capacity to enter into a contract can executed a Power of Attorney in the Commonwealth of Massachusetts.

Who Should Be Appointed to Make Decisions
In Massachusetts, in individual can name virtually any adult in a Power of Attorney to assume healthcare or financial responsibility. Individuals should name a reliable and honest person to be attorney-in-fact who can fulfill the terms of a Power of Attorney. There is a substantial amount of information that has been written (and cases decided) regarding the financial exploitation by attorneys-in-fact who were appointed by Power of Attorney.

Resources for Power of Attorney

AP 614: Power of Attorney

Power of Attorney – Massachusetts Legislature – Section 5-501

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