Can I Set Up A POA That Only Takes Effect If I Am Incapacitated?

Are you preparing an estate plan? It is a best practice to have a Durable Power of Attorney (“DPOA”, which is sometimes referred to as just a “POA”) in place. You may be wondering: Can I set up a power of attorney that will only become active if I am incapacitated? In Massachusetts, the answer is “yes.” You can set up a springing POA, provided is a Durable Power of Attorney.    A Durable Power of Attorney will remain in effect if the Principal becomes incapacitated.  A Power of Attorney will terminate upon incapacitation.    At Fisher Law LLC, we are proud to be solutions-driven estate planners. Within this article, our Norwood estate planning attorney provides a more comprehensive overview of how a DPOA works in Massachusetts.

You Have the Right to Set Up a Springing Power or Attorney 

In the context of estate planning, your DPOA will often be a “springing” DPOA. Massachusetts has adopted the Uniform Power of Attorney Act (M.G.L. c. 190B, Article V, Part 5). Under the statute, a power of attorney may specify that it becomes effective at a future date or upon the occurrence of a specified event, including the principal’s incapacity. In other words, your DPOA documents can include clear language that states that the power of attorney will not take effect right away, but will only be valid based on a future contingency (such as your incapacity).

Note: If the document does not clearly state a delayed effective date or triggering condition, the DPOA is presumed to be effective immediately. 

You Must Define Incapacity and Clarify the Trigger

A springing DPOA must clearly define how incapacity is determined. Massachusetts law permits the principal to specify the method of determination, including certification by one or more licensed physicians or another qualified professional. Here is a challenge: Poorly defined triggers often create delays because banks and other institutions will not honor the DPOA without clear proof that the condition has been met. Ambiguity can defeat the very purpose of a springing structure. For that reason, it is best to let an experienced estate planning lawyer draft springing DPOA documents.

A Springing DPOA Should Also Generally Be a Durable POA 

In Massachusetts, there is a concept called “durability” that is a separate legal concept from when the POA takes effect. Under Massachusetts law, a POA is durable if it includes language showing intent that the authority continues despite the principal’s incapacity. Without durability language, the POA terminates upon incapacity, even if it was intended to spring at that moment. A springing POA that is not durable is legally ineffective. Do not let a small mistake undermine your estate planning. A top-rated Norwood, MA estate planning attorney can help. 

Call Our Norwood, MA POA Lawyer Today

At Fisher Law LLC, our Norwood estate planning attorney has extensive experience with power of attorney cases. If you have any questions about setting up a POA, we are here to help. Contact us right away to set up your completely confidential, no obligation case review. With an office in Norwood, we provide estate planning services throughout the Greater Boston area, including in Suffolk County, Norfolk County, and Middlesex County.

Source:

malegislature.gov/Laws/GeneralLaws/Partii/Titleii/Chapter190b/Articlev