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What is a Durable Power Of Attorney?

A Durable Power of Attorney (DPOA) is a legal document that allows you to appoint someone to act on your behalf if you cannot do so yourself. Durable Power of Attorney enables you to choose someone you trust to handle your financial affairs and make decisions for you in the event of incapacity.

This document can be beneficial if you are disabled or traveling out of state. In addition, this document can help you avoid problems with your finances and property ownership.

Who needs to set up a Durable Power of Attorney?

It is wise for everyone to have a DPOA drafted, so you have it in place if an emergency arises, such as a car accident or a debilitating medical condition. Unfortunately, no one knows when such an emergency may occur that will prevent you from making everyday financial decisions.

Without these ordinary decisions being made, your financial future could be affected negatively. Having a DPOA in place is important so that your family or whomever you choose can step in and help you.

Creating this document gives someone legal authority to act on your behalf. This person is called your “agent” or “attorney-in-fact.” The person you appoint can handle many types of transactions, including:

  • Buying or selling real estate
  • Managing bank accounts, bills, and investments
  • Gifting money or property
  • Making decisions about the sale of personal property
  • Filing tax returns
  • Applying for government benefits

A Durable Power of Attorney in Massachusetts can be specific regarding what decisions the agent is authorized to make, or it can be more general.

You may want two separate agents in charge of your finances and healthcare in some situations. You can appoint a Durable Financial Power of Attorney and Durable Medical Power of Attorney in order to accomplish that. In Massachusetts, a Durable Medical Power of Attorney is also referred to as a Health Care Proxy.

Durable Power of Attorney vs. Guardianship

When an individual becomes unable to make decisions due to incapacity, a DPOA can allow another person to make decisions on their behalf. On the other hand, guardianship is a legal proceeding where a person is appointed by the court to make decisions for another deemed incapacitated. 

If you do not have a DPOA, your family may need to go through the court process of obtaining guardianship which could be costly and time-consuming.

Who should you designate in your Durable Power of Attorney?

When deciding who to choose as your DPOA agent, designate someone who knows your wishes and is familiar with your financial situation. If you have children, you may want to choose one of them to be your agent. You will most likely also designate a second person as an alternative to step in if the first person you choose is unable to assume your agent’s role.

Be sure to discuss your plans with your chosen representative(s). By having these conversations, they know their responsibilities and can be prepared to step in. You want to make sure this person has a thorough understanding of their role.

Can you remove or change your Durable Power of Attorney?

If you would like to remove or change the person authorized to act on your behalf, you may be able to do so. In most cases, the document can be amended or revoked by the person who created it.

In Massachusetts, you can terminate your existing DPOA by creating a new DPOA that includes language that revokes the previous DPOA. Once this has been completed, you need to notify the agents associated with the document in writing. Special rules may exist for revocation, especially with banks and other financial institutions.

You should always consult with an attorney before making any decisions about amending or revoking the document. It’s essential to document the termination of the existing DPOA correctly.

You may feel that someone is abusing their position as an agent of a DPOA for a loved one. In that case, you might be able to draw up a legal claim to have the person removed. But, again, an attorney who understands elder law and estate planning can help you.

How do you create a Durable Power of Attorney?

There are a few essential things to keep in mind when creating a DPOA:

  • The document must be signed in the presence of at least two adults.
  • In Massachusetts, it is not required to be acknowledged before a notary but is very strongly recommended.
  • The document must state that it is a “durable” Power of Attorney, which will remain valid even if the individual becomes incapacitated.
  • The document should be written as specific as possible, spelling out the exact powers that the agent will have.
  • It’s important to name an alternate agent if the first choice is unavailable or unable to act.
  • Distribute copies of your DPOA document as necessary.

Having these protocols set in place will ensure that your agent can take action on your behalf.

The next step…

You can find DIY Durable Power of Attorney forms online, but hiring an attorney to help you create the document is strongly recommended. The attorney can ensure that the document is worded correctly and upheld in court.

It is important to keep your Durable Power of Attorney up to date. Review and update the paperwork every few years, especially if your circumstances or wishes change.

All in all, it’s best to have everything set up to avoid any unnecessary stress in the future. Here at Elder Law Care, we can help you create the legal paperwork for your security and peace of mind.

We help you protect the people you love the most.

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