Massachusetts General Durable Power of Attorney for Property and Finances or Financial Effective upon Disability

Power of Attorney and Health Care - General - Massachusetts

A durable power of attorney is a power of attorney by which a principal, in writing, designates another as his attorney in fact.  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 continues notwithstanding the subsequent disability or incapacity of the principal.

"Disability or incapacity of the principal" means the mental illness or other disability of the principal.

The death of a principal who has executed a written power of attorney, durable or otherwise, does not revoke or terminate the agency as to the attorney in fact or other person unless the agent has actual knowledge of the death of the principal.  This is applicable only if the agent  acts in good faith under the power of attorney.  Actions taken in good faith, unless otherwise invalid or unenforceable, bind a successor in interest of the principal.

The disability or incapacity of a principal who has executed a written power of attorney that is not a durable power does not revoke or terminate the agency as to the attorney in fact.  This is applicable only if the agent  acts in good faith under the power of attorney.  Actions taken in good faith, unless otherwise invalid or unenforceable, bind a successor in interest of the principal.

If principal has executed a power of attorney and a court subsequently appoints a conservator, guardian of the estate, or other fiduciary charged with the management of all of the property of the principal, 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 the principal were not disabled or incapacitated.

A principal may nominate in a durable power of attorney the conservator, guardian of his estate, or guardian of his person for consideration by the court. The court shall make its appointment in accordance with the most recent nomination by the principal except for good cause or disqualification.

If acts by an agent are undertaken in good faith in reliance on a power of attorney, an affidavit executed by the attorney in fact under the power of attorney, durable or otherwise, stating that he did not have actual knowledge of the termination of the power by revocation, or of the death, disability or incapacity of the principal, is conclusive proof of the non-revocation or non-termination of the power of attorney at the time the agent acted.

If the exercise of the power of attorney requires execution and delivery of any instrument that is recordable, this affidavit, when authenticated for record, must be recorded.

A power of attorney may terminate for by expiration of time or occurrence of an event other than express revocation or a change in the capacity of the principal.


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