Massachusetts Center for Estate Planning and Administration

Durable Power of Attorney and Guardianships

A Massachusetts Durable Power of Attorney allows your appointed “attorney-in-fact” to maintain your financial affairs if you become disabled and lack the capacity to handle your own financial affairs. If you become disabled and lack the capacity to handle your finances and you do not have a properly drawn Durable Power of Attorney, then it would be necessary to formally petition the probate court to have a guardian or conservator appointed by a judge to make decisions for you when you are disabled or lack the capacity to do so. The process of getting a guardian or conservator appointed can be anxiety provoking for your loved ones because it creates uncertainty about your legal interests and because the judge can appoint a complete stranger to manage your affairs. This is often an extremely expensive and time consuming public affair that can be avoided with proper planning and forethought.

A Massachusetts Durable Power of Attorney can allow for:

  • your wishes to be carried out pursuant to your written instructions;

  • you to decide who will make your decisions for you, not a stranger; and

  • saving thousands in legal fees by avoiding court proceedings.

A Durable Power of Attorney in Massachusetts is commonly one of the following:

  • A "present" Durable Power of Attorney is when the power to take action on your behalf is immediately transferred to your attorney-in-fact.

  • A "springing" Durable Power of Attorney only comes into effect upon your future or later disability as determined by your doctor.

With a “springing” Durable Power of Attorney, you will maintain complete control over your financial affairs until you become incapacitated as stated by a physician. Only after you are determined to be incapacitated will the person you have appointed in your Durable Power of Attorney take over your financial affairs and have full authority to act on your behalf within the specific guidelines you have previously established in writing.

The person who you name in your Durable Power of Attorney is called an "attorney-in-fact". Usually, this person would be your spouse or other trusted family member, loved one, or friend. Your attorney-in-fact can pay your bills, deposit checks, handle tax matters, buy and sell stocks, invest in securities, and do all of the things that you could do for yourself. In addition, you may revoke the Durable Power of Attorney at any time, so long as you are still competent.

A Durable Power of Attorney can avoid uncertainty, promote peace of mind, and possibly save you a substantial amount of money by avoiding costly court proceedings to have a guardian chosen to manage your financial and legal affairs.

Contact us to get started on creating your Durable Power of Attorney.