New Durable Power of Attorney Statute in Massachusetts
Full Question:
Answer:
A power of attorney is a legal instrument that individuals create and sign that gives someone else the authority to make certain decisions and act for the signer. The person who has these powers is called an "agent" or "attorney-in-fact." The signer is the "principal." As a principal, if the principal's decisions conflict with those of the agent, the principal's decision will govern, assuming that the agent confers with the principal prior to taking an action. If an agent has acted on the principal's behalf and acted within the scope of authority granted by the power of attorney, then the principal may be obligated by the terms and conditions of his actions.
The person designated to be the agent assumes certain responsibilities.
The agent is obligated to act in the principal's best interest. The agent must always follow the principal's directions. Agents are "fiduciaries," which means that the agent must act with the highest degree of good faith in behalf of their principals. The agent must keep his money separate from the principal's; keep detailed records concerning all transactions he engages in on the principal's behalf; not stand to profit by any transaction where the agent represents the principal's interests; and not make a gift or otherwise transfer any of the principal's money, personal property, or real estate to himself unless the power of attorney explicitly states he can do so. An agent who acts against the principal's interest for his own gain, or acts outside the authority granted in the power of attorney, may be held personally liable.
201B was repealed in 2008. It was replaced by the new Unform Probate Code of MA. The following are the MA statutes passed in 2008:
PART 5
DURABLE POWER OF ATTORNEY
Section 5-501. [Definition.]
(a) A durable power of attorney is a power of attorney by which a
principal designates another his attorney in fact in writing and the
writing contains the words "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," or similar words showing the
intent of the principal that the authority conferred shall be exercisable
notwithstanding the principal's subsequent disability or incapacity,
and, unless it states a time of termination, notwithstanding the lapse of
time since the execution of the instrument.
(b) References in this part to the disability or incapacity of the
principal shall mean the mental illness or other disability of the principal
recognized under the General Laws.
Section 5-502. [Durable Power of Attorney Not Affected By Lapse of Time,
Disability or Incapacity.]
All acts done by an attorney in fact pursuant to a durable power of
attorney during any period of disability or incapacity of the principal
have the same effect and inure to the benefit of and bind the principal
and his successors in interest as if the principal were competent and not
disabled. Unless the instrument states a time of termination, the power
is exercisable notwithstanding the lapse of time since the execution of
the instrument.
Section 5-503. [Relation of Attorney in Fact to Court-appointed
Fiduciary.]
(a) If, following execution of a durable power of attorney, a court of
the principal's domicile appoints a conservator, guardian of the estate,
or other fiduciary charged with the management of all of the principal's
property or all of his property except specified exclusions, the attorney
in fact is accountable to the fiduciary as well as to the principal. The
fiduciary has the same power to revoke or amend the power of attorney
that the principal would have had if such principal were not disabled or
incapacitated.
(b) A principal may nominate, by a durable power of attorney, the
conservator, or guardian of the person for consideration by the court if
protective proceedings for the principal's person or estate are thereafter
commenced. A principal may in a nomination of a conservator or guardian
request that sureties on any bond of a conservator or guardian be
waived. The court shall make its appointment in accordance with the
principal's most recent nomination in a durable power of attorney except
for good cause or disqualification.
Section 5-504. [Power of Attorney Not Revoked Until Notice.]
(a) The death of a principal who has executed a written power of
attorney, durable or otherwise, shall not revoke or terminate the agency
as to the attorney in fact or other person, who, without actual knowledge
of the death of the principal, acts in good faith under the power. Any
action so taken, unless otherwise invalid or unenforceable, binds
successors in interest of the principal.
(b) The disability or incapacity of a principal who has previously
executed a written power of attorney that is not a durable power shall
not revoke or terminate the agency as to the attorney in fact or other
person, who, without actual knowledge of the disability or incapacity of
the principal, acts in good faith under the power. Any action so taken,
unless otherwise invalid or unenforceable, binds the principal and his
successors in interest.
Section 5-505. [Proof of Continuance of Durable and Other Powers of
Attorney by Affidavit.]
As to acts undertaken in good faith reliance thereon, an affidavit
executed by the attorney in fact under a power of attorney, durable or
otherwise, stating that he did not have at the time of exercise of the
power actual knowledge of the termination of the power by revocation or of
the principal's death, disability, or incapacity is conclusive proof of
the nonrevocation or nontermination of the power at that time. If the
exercise of the power of attorney requires execution and delivery of any
instrument that is recordable, the affidavit when authenticated for
record is likewise recordable. This section shall not affect any
provision in a power of attorney for its termination by expiration of time
or occurrence of an event other than express revocation or a change in
the principal's capacity.
Section 5-506. [Enforcement.]
The attorney in fact under a durable power of attorney is authorized to
prosecute legal action for damages in behalf of the principal in the event
of an unreasonable refusal of a third party to honor the authority of a
valid durable power of attorney.
Section 5-507. [Protection; Third Parties.]
No third party acting in good faith reliance on a durable power of
attorney shall be held liable for action taken in such reliance.
The following is the repealed statute regarding the wording of the power of attorney. The substance of the wording required was altered.:
G.L.c. 201B, § 1. Durable power of attorney; definition.
**Update Notice: This section has been repealed by
Chapter 521 of 2008
Section 1. (a) A durable power of attorney is a power of attorney by
which a principal, in writing, designates another as his attorney in fact
and the writing contains the words, "This power of attorney shall not be
affected by subsequent disability or incapacity of the principal", or
"This power of attorney shall become effective upon the disability or
incapacity of the principal", or similar words showing the intent of the
principal that the authority conferred shall continue notwithstanding the
subsequent disability or incapacity of the principal.
(b) References in this chapter to the disability or incapacity of the
principal shall mean the mental illness or other disability of the
principal recognized under the General Laws.
