Should Your Spouse Always Be Your Power Of Attorney (POA) In Massachusetts?
Every adult needs an estate plan that includes, at least, a Last Will and Testament, Durable Power of Attorney (a DPOA or POA), Health Care Proxy, HIPAA Authorization and an Advanced Directive or Living Will. A well-designed estate plan should plan for various contingencies, such as an individual named in the Will not being alive at your passing, and should support you during life in the event that you are no longer able to manage your financial affairs or make health care decision.
A Durable Power of Attorney names an agent, called an attorney-in-fact in Massachusetts, and a successor(s) who are authorized to do any type of financial transaction that you could do, such as sign a contract, sign a tax return, hire home health care, manage investments, buy and sell real estate, etc. While the agent is called an attorney-in-fact, the agent is commonly referred to in casual conversation as a DPOA or POA.
f you are married, you may be wondering: Should my spouse be my power of attorney? The answer depends on your specific situation. Your spouse may or may not be the right choice for your POA. In this article, our Norwood estate planning lawyers highlight the most important considerations when determining whether or not to name your spouse POA in Massachusetts.
Background: What is Power of Attorney (POA)?
Under Massachusetts Commonwealth law (Section 5-501), power of attorney is granted when a “principal designates another his attorney in fact in writing.” In other words, power of attorney is a legal document that lets someone else act on your behalf if you become incapacitated or unable to make decisions for yourself. The person you appoint as your POA is referred to as your agent or attorney-in-fact. There are actually several different types of POA in Massachusetts. Power of attorney could be broad—giving someone the authority to handle all of your financial and legal matters—or it could be limited to specific tasks/circumstances.
You Can Name Any Competent Adult as Your POA in Massachusetts
You can name your spouse as your power of attorney, but you are not required to do so by Massachusetts law. In Massachusetts, anyone who is 18 years of age or older and of sound mind can serve as a POA. In effect, you have the flexibility to choose anyone you trust to manage your affairs in the event that you cannot do so yourself.
You can name a spouse, adult child, other family member, friend, or professional advisor, such as a lawyer or accountant. When selecting a POA, it’s important to choose someone who is reliable, responsible, and capable of making decisions in your best interests. You may also want to consider the person’s proximity to you, as well as their availability and willingness to serve in this role.
A Spouse May or May Not Be the Best Choice for Power of Attorney
It is relatively common for spouses to appoint each other as POA. However, there are also many situations when this does not occur. Given the age, health status, and/or willingness of your spouse, you both may prefer an adult child or legal professional to act as a POA. These are case-by-case decisions that should be made with careful attention to your unique needs.
Get Help From an Estate Planning Attorney in Massachusetts
At Fisher Law LLC, our Massachusetts estate planning lawyers provide sophisticated, reliable legal guidance and support to people and families. If you have any questions or concerns about naming your spouse power of attorney (POA), we are here as a legal resource. Contact our law firm right away to set up an appointment with an experienced lawyer. We provide estate planning services in Norwood and throughout the Greater Boston area.