Massachusetts Durable Power of Attorney
Legal Issues that Arise when a "POA" Does Not Exist

A single Durable Power of Attorney (or "POA" for short) can avoid the time and expense that always goes hand-in-hand with court involvement. A Durable Power of Attorney is a Power of Attorney that remains in effect even if you (the “Principal”), become disabled or incompetent. By comparison, another type of Power of Attorney, only becomes effective after the principal becomes incompetent and can no longer manage his or her own financial affairs. This type of Power of Attorney is called a "Springing Power of Attorney."

The use of a Durable Power of Attorney is very important in estate planning to avoid the need, delay, and expense, for a court-appointed guardian or conservator should you become incompetent. Anyone who is not a minor and who has the capacity to enter into a contract can execute a Power of Attorney. The Massachusetts Power of Attorney, unlike a health care proxy, is not automatically nullified in the event of separation or divorce.

The Durable Power of Attorney also allows you to pick the person or persons you have confidence in to handle your affairs (the “attorney in fact” or the “agent”). This ability is particularly important since the choice can be made while you are competent and allows you to make this selection instead of leaving it up to the courts if you become incompetent. It is also suggested that an alternate attorney in fact be named in case the original is unable to serve for some reason (e.g. he or she predeceases you).

A few examples of the benefits of having a Durable Power of Attorney appear below:

• Avoid the need for the appointment of a guardian or conservator;

• Provide for the management of financial affairs;

• Pay bills, collect Social Security payments or deposit and cash checks;

• Buy and sell real and personal property;

• Continue operation of a business;

• Fund standby living trusts;

• File income tax returns and handle tax matters;

• Begin, continue or settle litigation;

• Make gifts to family members or charities;

• Continue estate planning or begin Medicaid planning;

• Make disclaimers.