If an accident or illness leaves you unable to make decisions, a trusted designee may transact your affairs
A power of attorney (POA) is a written document in which you (the “principal”) authorize a trusted individual whom you select (your “attorney-in-fact” or “agent”) to act on your behalf. There are several types of POA:
- Limited POA: This gives someone the authority to act on your behalf in specific situations or for limited time periods.
- General POA: This grants someone the authority to conduct all affairs on your behalf.
- Durable POA: This authorization remains effective even if you should become disabled or incapacitated, and can provide one of the most important benefits of a POA. If the POA is not durable, it will automatically be revoked when you become disabled—and if you become disabled or incapacitated, that is just when you need the assurance that another can act on your behalf.
- “Springing” or “springing durable” POA: This type of appointment only “springs” into being or becomes effective when needed, at some future date or upon some future occurrence, usually when you become incapacitated.
The laws pertaining to POAs may differ in different states. In Massachusetts, as provided under the Massachusetts Uniform Probate Code, a durable POA:
- Can be general or specific. In a specific durable POA, the agent is authorized to act only in certain capacities, which the POA document must describe in detail. A general durable POA grants broader powers to the agent, allowing him or her to act in a variety of matters, from financial decisions to health care, or to complete your biennnial MTRS Benefit Verification Form.
- Can take effect immediately on signing by the principal (known as a “present” power of attorney) or at a later time. A document that becomes effective only when needed, for example, if and when the principal suffers an incapacitating illness or injury, is known as a “springing durable” POA.
- Should be signed in the presence of a Notary Public and must contain the phrase “This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time,” or similar language indicating that in the event of disability, the authority granted in the document remains valid. A durable POA may contain an expiration date, beyond which it lapses. It also may be revoked as long as the principal is not incapacitated. If the principal is incapacitated, a legal guardian would have the power to revoke the document. The POA is at all times answerable to a court-appointed legal guardian or fiduciary.
If you do not have a valid, durable power of attorney in place and you become incapacitated, the Massachusetts Probate Court will have legal authority over your affairs. The court will appoint a guardian to make decisions, sign documents and handle your health, business and family decisions, and take charge of your property and assets. A court-appointed guardianship means additional expense and legal complications for you and your family, as well as uncertainty over the outcome of any probate matters.
When choosing someone as your attorney-in-fact, however, be sure to select someone who is responsible and trustworthy, and consult your attorney regarding the different ways you can limit your POA document to protect yourself. To revoke your POA, notify your attorney-in-fact in writing, and ask them to return any copies of your POA document to you. You should also notify any others that may have received the document, including the MTRS, in writing, that you have revoked your POA.
As the MTRS cannot provide you with legal advice, please consult a lawyer for more information.