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What a Durable Power of Attorney in Massachusetts Won't Do For You

A durable power of attorney can be a very powerful tool in helping an aging parent with their affairs, or any loved one who is incapacitated.  It does, however, have its limits, which are not widely understood.  Below are some common misconceptions about a durable power of attorney.

A Durable Power of Attorney is Not a Health Care Proxy

The durable power of attorney gives you legal authority.  It does not give you authority to make medical decisions for your loved one.  You need a separate document, called a health care proxy, to trigger that authority.  

If you don't know this until it is time to invoke health care decision-making authority, you may find yourself in an emergent medical situation with a loved one without the power to make decisions.

A comprehensive estate plan will include both a durable power of attorney and a health care proxy, for this very reason.

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A Durable Power of Attorney Will Not Allow You to Access Accounts After a Loved One has Died

Many people mistakenly believe that they can access accounts and conduct business after their loved one has died.  This is not the case.  The durable power of attorney is only effective while the person is alive.  Once they have passed, you will need to be appointed by the Probate Court as a personal representative of the estate in order to have legal authority to transact business on their behalf.

This is why it is a good idea for the person giving the power of attorney to also set up a bank account on which the power of attorney holder (or their chosen personal representative, if that is a different person) has signing authority.  This way there are some funds immediate available to the estate for paying bills, final expenses, and other things that may need to be paid while awaiting the Probate Court appointment.

A Durable Power of Attorney Does Not Require a Finding of Incapacity

A durable power of attorney is effective immediately and gives your agent full authority to act on your behalf, whether or not you are incapacitated. This remains in effect unless or until you revoke it.

This means it is vital that you absolutely trust the person you name as your durable power of attorney, because they are allowed to act on your behalf even when you can act for yourself.

There is another form of power of attorney, called a "springing" power of attorney, which is only valid if you have been declared incompetent or incapacitated.  The reason many people still choose the durable power over this one is that they do not have to worry about waiting for an incapacity finding in order for someone to act on their affairs, and know that it is available anytime.

How Our Estate Planning Lawyers Can Help

Estate Planning Jenna Ordway slnlaw MA
Estate Plan Jenna Ordway slnlaw MA
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Estate Planning in Massachusetts
We are ready to help.  We understand this can be a difficult issue to tackle, so we have designed our process to make it as easy as possible for you to get the plan in place that protects you and your family and accomplishes your goals.  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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  • Home
  • Employment Law
    • Guide To Employment Law Content
    • Advice for Employers >
      • Hiring Independent Contractors in Massachusetts
      • Termination Best Practices
      • Workplace Discrimination Employer Guide
      • Employee Handbook >
        • Employee Handbook Basics
      • Paid Family Leave and Your Small Business
      • Overtime Law for Employers
      • Employee Complaints About Pay
      • Employee Non Competes
    • Advice for Employees >
      • Employment Case Assessment
      • Discrimination in the Workplace
      • Sexual Harassment at Work >
        • Sexual Harassment Resources
        • Sexual Harassment in a Small Business
        • Constructive Discharge
        • Sexual Harassment and Non Disclosure Agreements
        • Sexual Harassment and Remote Work
        • Sexual Harassment Case Studies
      • Massachusetts Paid Family Leave
      • Non Compete Agreements >
        • Are non competes enforceable
        • Massachusetts Non Compete Act
        • Pre 2018 Massachusetts Non Competes
        • Non Compete Case Studies
        • Can I Avoid My Non Compete
      • Independent Contractor Law >
        • Independent Contractor Test
        • Working As Independent Contractor
        • Independent Contractor Case Studies
        • Independent Contractor Roadmap
      • Wage and Hour Laws >
        • Massachusetts Minimum Wage
        • Overtime Law >
          • Overtime Exemptions
          • Employee Travel Time
          • Federal or State Overtime Law
        • Overtime Law Case Studies
        • Massachusetts Wage Act >
          • Payment of Commissions
          • Wage Deductions
          • Late Payment of Wages
          • Paid Time Off
        • Wage Act Case Studies
        • What Are Your Wage and Hour Rights
      • Employment Contracts in Massachusetts >
        • Restrictive Covenants
        • Promissory Estoppel
      • Employment Termination >
        • Severance Pay
        • Should I Accept a Severance?
    • Unemployment in Massachusetts >
      • Unemployment Overpayment
      • Pandemic Unemployment
      • Unemployment Case Studies
  • Estate Planning
    • Guide To Estate Planning Content
    • Legacy Protection >
      • Why You Need an Estate Plan >
        • Why You Don't Have an Estate Plan
      • Massachusetts Estate Tax
      • Asset Protection Trusts
      • Children with Special Needs
    • Planning for Assisted Living
    • Is Your Will Enough >
      • Special Circumstances >
        • Estate Planning for Blended Families
        • Estate Planning for a Non Citizen Spouse
        • Estate Planning and Divorce
        • Estate Planning for Small Business Owners
      • Surviving Spouse's Share
      • Disinheriting Children Massachusetts
      • Updating Your Estate Plan
    • Estate Planning Documents >
      • What is a Trust >
        • Revocable trust
        • Irrevocable trust
        • Irrevocable vs revocable trust
      • Last Will and Testament
      • Durable Power of Attorney
      • Massachusetts Health Care Proxy
      • Life Estates in Massachusetts
      • Massachusetts Pet Trust
    • Probate Process >
      • Non Probate Assets
  • Business Law
    • Guide To Business Law Content
    • Small Business Law
    • Business Contract Basics
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