Limitations of a Durable Power of Attorney
Understanding the Limits of a Durable Power of Attorney in MassachusettsA durable power of attorney is indeed a powerful tool, especially when assisting an aging parent or an incapacitated loved one with their affairs. However, it's essential to recognize that a durable power of attorney has its constraints, which are often misconstrued. Let's explore these common misconceptions about durable powers of attorney.
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A Durable Power of Attorney is Not a Health Care Proxy
While a durable power of attorney provides legal authority, it does not extend to making medical decisions for your loved one. To acquire the authority for healthcare decisions, a separate document called a health care proxy is required.
Discovering this distinction when it's time to make critical medical decisions may leave you in an urgent medical situation without the legal power to act. To ensure comprehensive planning, it's advisable to include both a durable power of attorney and a health care proxy in your estate plan.
Discovering this distinction when it's time to make critical medical decisions may leave you in an urgent medical situation without the legal power to act. To ensure comprehensive planning, it's advisable to include both a durable power of attorney and a health care proxy in your estate plan.
A Durable Power of Attorney Does Not Grant Access After Death
One prevalent misconception is that a durable power of attorney allows access to accounts and enables business transactions after a loved one's passing. However, this is not the case. The durable power of attorney's authority is solely effective while the individual is alive.
Following their demise, the legal authority to transact on their behalf necessitates an appointment by the Probate Court as a personal representative of the estate. To circumvent potential challenges, it's wise for the person granting the power of attorney to establish a bank account, granting the power of attorney holder or their designated personal representative signing authority. This ensures immediate access to funds for essential expenses during the Probate Court appointment process.
Following their demise, the legal authority to transact on their behalf necessitates an appointment by the Probate Court as a personal representative of the estate. To circumvent potential challenges, it's wise for the person granting the power of attorney to establish a bank account, granting the power of attorney holder or their designated personal representative signing authority. This ensures immediate access to funds for essential expenses during the Probate Court appointment process.
A Durable Power of Attorney Does Not Require a Finding of Incapacity
Unlike some power of attorney forms, a durable power of attorney takes effect immediately, granting your agent full authority to act on your behalf, regardless of your capacity. This authority persists until you decide to revoke it.
Choosing a trustworthy individual for your durable power of attorney is paramount, as they are empowered to act on your behalf, even when you are capable of making decisions for yourself. Some opt for a "springing" power of attorney, valid only upon a declaration of incompetence or incapacity. However, many prefer the durable power of attorney for its accessibility, eliminating the need for an incapacity finding before action can be taken.
Choosing a trustworthy individual for your durable power of attorney is paramount, as they are empowered to act on your behalf, even when you are capable of making decisions for yourself. Some opt for a "springing" power of attorney, valid only upon a declaration of incompetence or incapacity. However, many prefer the durable power of attorney for its accessibility, eliminating the need for an incapacity finding before action can be taken.
Meet Our Estate Planning Lawyers
Emily Smith-Lee is the owner and founder of slnlaw. She is a 1996 graduate of Boston College Law School. She was previously a partner at the Boston office of a large international firm, where she worked for thirteen years before starting the firm that became slnlaw in 2009. She has been recognized as Massachusetts Superlawyer each year since 2013, and in 2018 earned recognition as one of Massachusetts Lawyers Weekly's Lawyers of the Year.
Jenna Ordway: Jenna is a 2013 graduate of Quinnipiac Law School, and also earned an LLM in Taxation from Boston University in 2015. She has been affiliated with slnlaw since 2011, first as a law clerk and then as an attorney. Jenna has been recognized since 2019 as a "Rising Star" by Massachusetts Superlawyers. Jenna wrote a book on estate planning: The Road to Peace of Mind: What You Need to Know About Estate Planning. Jenna has helped many individuals and families with planning to protect their legacies and loved ones, and planning for the future and succession of their businesses.
Sharleen Tinnin: Sharleen is a 2010 graduate of Northeastern University School of Law, and earned her LLM in estate planning from Western New England Scool of Law in 2016. She has been with slnlaw since 2023. Prior to joining slnlaw, she worked with King, Tilden, McEttrick & Brink, P.C. on complex civil litigation matters. She previously worked for the United States Department of Justice, and received an "Excellence in Justice" award in 2017. Sharleen has helped many clients with planning for their legacies and their future, and navigating the probate process in Massachusetts after the death of a loved one.
How We Can Help
Understanding these distinctions surrounding durable powers of attorney is crucial for informed estate planning. It ensures that your loved one's affairs are well-managed, addressing both legal and medical needs comprehensively.We are ready to help. You can use the button below to schedule a free information call, or simply give us a call at 781-784-2322.
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