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.
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.
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