Choosing a durable power of attorney is an excellent way to ensure that your financial and legal wishes will be met by a family member or trusted individual if you are incapacitated or deemed incapable of legally handling your own affairs. A durable power of attorney gives your agent, also called an attorney-in-fact, the legal right to make decisions for you, and this grant of authority continues even if you become mentally incompetent or otherwise incapacitated. Most states have adopted Uniform Power of Attorney laws, and Massachusetts is one of these states.
Form and Witnesses
In order to apply for a durable power of attorney, you must fill out the standard Massachusetts form and have it witnessed. There are no requirements in Massachusetts for the form to be notarized by an officially-appointed notary public, and there also are no requirements that the form be signed by the agent or individual who is being appointed as attorney-in-fact for the purposes of the power of attorney. However, most courts recommend that the forms be witnessed by a notary and signed by the agent as a matter of course, before being filed with the local court in the county or area where the principal resides.
Who Can Be Designated
In order to be designated as an attorney-in-fact, you must be over the age of 18, of sound mind and a resident of the state of Massachusetts. In addition, the person requesting you as his attorney-in-fact must put the following specific phrasing in his power of attorney document in order for it to be considered a durable power of attorney: “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.” If this is not done, the requirements for a durable power of attorney will not be met and the power of attorney will cease upon the principal’s death or incapacitation.
Durable power of attorney ends at death. In Massachusetts it can extend further in some cases where the agent is not informed of the death of the principal and continues to act and make decisions in good faith.