Massachusetts Durable Power of Attorney Laws
By Catherine Hodder, Esq. | Legally reviewed by Laura Temme, Esq. | Last reviewed March 30, 2023
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A durable power of attorney is an important document to help you with financial matters if you are unable to do so yourself. A durable power of attorney allows you as the “principal" to designate an “agent" or “attorney in fact" to handle your financial affairs. Some people create one in case of incapacity, while others do so for convenience.
When a power of attorney is “durable," it is still effective when the principal is disabled or incapacitated.
A durable power of attorney generally gives the agent or attorney in fact power over financial decisions and transactions. For information on designating someone to handle medical decisions, see Power of Attorney for Healthcare and Living Wills for more details.
The following chart lists the main elements of Massachusetts' durable power of attorney laws.
| Code Section | Ch. 190B §5 Part 5 Durable Power of Attorney | |
| Definition | A durable power of attorney is a power of attorney by which a principal designates another as their agent or attorney in fact in writing. The writing must contain 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 principal's intent 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. | |
| Legal Requirements for Durable Power of Attorney | (1) Competent adult; (2) in writing; (3) signed by the principal; and (4) the principal's signature is notarized by a notary public. | |
| Termination of Durable Power of Attorney | A durable power of attorney terminates upon the principal's death or if the principal revokes the durable power of attorney by a separate writing signed by the principal. | |
| If Third Party Refuses to Follow Durable Power of Attorney | If a third party's refusal to honor a validly executed durable power of attorney is unreasonable, the attorney in fact may bring an action against the third party on the principal's behalf. |
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| Agent Liability | The agent or attorney in fact has a fiduciary duty to act in good faith and in the best interest of the principal. If the agent or attorney in fact breaches that duty, they are liable to the principal for the harm caused. |
Note: State laws are constantly changing -- contact a Massachusetts estate planning attorney or conduct your own legal research to verify the state law(s) you are researching.
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