How to Make a Power of Attorney in Massachusetts FAQ

What Is a Power of Attorney?

There are different types of power of attorney documents and different reasons for using them. A financial power of attorney (POA) is a legal document that allows a person (the principal) to designate another person (the agent or attorney-in-fact) to make financial decisions on the principal’s behalf. To name someone to handle healthcare decisions in Massachusetts, the principal names a healthcare agent in a healthcare proxy. Without a power of attorney, if you suddenly can’t manage your affairs due to an incapacity such as dementia, your family members would petition for a conservatorship for you, which takes time and money in court.

Who Can Be My Attorney in Fact?

In Massachusetts, any person 18 years or older can serve as an attorney in fact. When choosing an attorney in fact for your power of attorney look for someone trustworthy, responsible, and organized. Your attorney in fact has a fiduciary duty to act in good faith and for your best interest.

Avoid naming co-attorneys in fact as more than one complicate things. If they are to act jointly, nothing will get done if they disagree. If they act independently they may confuse third parties and contradict each other’s actions. You should name a primary attorney in fact and at least another backup or successor attorney in fact if your primary attorney in fact is unwilling or unable to serve.

What Can My Attorney in Fact Do in Massachusetts?

Your attorney can perform a variety of actions on your behalf, such as handling financial transactions, buying and selling property, and filing tax returns, depending on what powers you grant them. You decide what authority you want your attorney in fact to have to handle such subjects as:

• Real property (real estate)
• Tangible personal property
• Stocks and bonds
• Commodities and options
• Banks and other financial institutions
• Operation of entity or business
• Insurance and annuities
• Estates, trusts, and other beneficial interests
• Claims and litigation
• Personal and family maintenance
• Benefits from governmental programs or civil or military service
• Retirement plans
• Taxes

Some powers allow your attorney in fact to reduce your estate. You may want them to reduce your estate to minimize estate taxes or to qualify you for government benefits, such as Medicaid. You should only expressly grant these specific powers if you want your agent to have the authority to:

• Create a living trust or amend, revoke, or terminate a trust
• Make a gift
• Create or change rights of survivorship
• Create or change a beneficiary designation
• Waive your right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
• Exercise authority over the content of electronic communications
• Renounce an interest in property, including a power of appointment

Think carefully about what powers to grant your agent and talk to them about how you would like them to handle your affairs.

What Is a Durable Power of Attorney in Massachusetts?

A durable power of attorney is a power of attorney that remains in effect even after the principal is incapacitated. For a power of attorney to be durable in Massachusetts, it must contain specific language stating that the document is not affected by the principal’s subsequent disability or incapacity.

When Is the Power of Attorney Effective?

The effectiveness of a Massachusetts power of attorney can be immediate upon signing or can be a springing power, which becomes effective upon the principal’s incapacity or another date or specified event. The terms of when the power of attorney is effective should be clearly stated in the POA document.

When Does the Power of Attorney End?

Your power of attorney is no longer effective after you die, but third parties must be aware of your passing. And you can revoke your power of attorney at any time if you are competent. There are other times when your power of attorney will end, such as:

• You become incapacitated, and your power of attorney is non-durable
• You revoke your attorney in fact’s authority, and there is no successor attorney in fact available or willing to serve
• The attorney in fact dies, becomes incapacitated, or resigns, and there is no successor agent available and willing to serve
• The specific or limited purpose of your POA is accomplished
• A court revokes your POA

Also, if your spouse is your attorney in fact and you divorce, their authority immediately terminates. That is why it is a good idea to have a successor attorney in fact.

Does Massachusetts Have a Statutory Power of Attorney?

No. There is no Massachusetts power of attorney form. Follow state guidelines to make sure that your power of attorney is valid and enforceable. You can either create your own power of attorney document tailored to your situation or hire an estate planning attorney.

Can I Make My Own Power of Attorney in Massachusetts?

Yes. Many people in Massachusetts choose to create their own power of attorney using state-specific online estate planning forms. If you know who you want as your attorney in fact and what powers you want them to have, you are ready to make a power of attorney. However, if you have questions about power of attorney documents, you should consult a lawyer for legal advice.

Estate planning solutions to fit your needs.

Get 10% off now

This is an advertisement. FindLaw and its affiliates are not a law firm and cannot provide legal advice.

How Do I Make My Power of Attorney Valid in Massachusetts?

To make your power of attorney valid in Massachusetts, it must be in writing, signed by you, and, although not required by law, it is recommended to have it notarized to facilitate its acceptance by third parties and make it recordable for real estate transactions.

Do I Have to Notarize My Power of Attorney in Massachusetts?

Although not required, it is a good idea to have a notary public attest to your signature so third parties do not question its authenticity.

What Should I Do After Signing My Power of Attorney?

After signing and notarizing your power of attorney, give copies of the POA to your attorney in fact, your successor attorney in fact, and any third parties, such as a bank or financial institution you want your attorney in fact to work with. A bank or other agency may ask your attorney in fact to complete an agent certification form where they attest the power of attorney is effective, and they have the authority to serve as your attorney in fact.

Does an Attorney in Fact Get Paid in Massachusetts?

They may be entitled to reimbursement for reasonable expenses incurred by serving as your attorney in fact. However, they may only be entitled to reasonable compensation for their time unless you state otherwise in your power of attorney.

Is My Massachusetts Power of Attorney Valid in Another State?

Yes. Generally, other states will recognize a power of attorney created and executed according to Massachusetts laws.

Can I Revoke My Massachusetts Power of Attorney?

Yes. As long as you are competent, you may revoke your power of attorney. To revoke, write a statement referring to the original and the date you signed it and that you intend to revoke your original power of attorney and your attorney in fact’s authority (mentioning them by name). Sign and notarize your “Revocation of Power of Attorney” and give to all attorneys in fact and any third parties that may have the original.

What Estate Planning Documents Should I Have in Massachusetts?

A power of attorney is helpful when you can’t handle financial matters on your own. However, there are other estate planning documents to consider:

A health care directive, called a health care proxy in Massachusetts, combines a medical power of attorney with an advance directive or living will. In your health care directive, you name a healthcare agent to make medical decisions and follow your wishes for medical care. You can also decide what life-prolonging measures you want or do not want when you have an end-stage illness or terminal condition.

In a will, you can appoint someone to manage your estate, distribute property to beneficiaries you choose, and name guardians to care for your young children and pets. By making a will, you control your estate and streamline the probate process. Without a will, a probate court follows intestacy laws and makes these decisions for you, and you may not like the result.

Fortunately, making a valid power of attorney and creating other Massachusetts estate planning documents is easy with online estate planning templates.