Alternative to Conservatorship: A Durable Power of Attorney

As a competent adult, you have the right to make decisions about your money, property, and business affairs and appoint a trusted person, called an attorney-in-fact, to make financial decisions on your behalf if you become disabled or incapacitated. However, if you have not appointed an attorney-in-fact and become disabled or incapacitated, the Massachusetts Court can step in to protect your estate and appoint a Conservator to make financial decisions on your behalf. A Durable Power of Attorney is considered an alternative to Conservatorship, as giving your Attorney-in-fact the legal right to make financial decisions on your behalf can avoid the need for a Conservatorship.

1. What is a Durable Power of Attorney?

A durable power of attorney is a legal document where an adult appoints a trusted person, called an Attorney-in-fact, to manage and protect the adult’s money, property and business affairs, when the adult becomes disabled or incapacitated, or is unable to manage his or her financial matters. A Durable Power of Attorney is legally binding and can be executed without involving the Court.

2. Who can execute a Durable Power of Attorney?

In order to execute a Durable Power of Attorney in Massachusetts, you must be 18 years old, of sound mind, and under no constraint or undue influence. The law does not provide us with one legal definition or test of sound mind.  Generally, an adult can execute a Durable Power of Attorney if the adult understands that he or she is giving another person the legal authority to manage his or her estate and make financial decisions on the adult’s behalf, if the adult becomes disabled or incapacitated.

3. How does a Durable Power of Attorney work?

A competent adult chooses a trusted person to be an attorney-in-fact (attorney) and decides what powers to give the attorney. You can give your attorney limited powers with authority to perform limited tasks like overseeing bank accounts or signing checks, or give your attorney general powers with authority to manage all financial affairs on your behalf.  You choose whether the powers take effect immediately or take effect when you are unable to manage your financial affairs or become incapacitated.  In executing the document, the adult should include language that makes it durable, meaning the powers are not affected by the adult’s subsequent incapacity.

4. Can I change my mind or cancel this document?

Yes. You can appoint a new attorney, or change or cancel the document, as long as you are able to make sound decisions.

5. Should I execute a Durable Power of Attorney, a Health Care Proxy and an Advanced Care Directive?

Yes. These three documents work together to ensure your choices and wishes will be carried out by a trusted person(s) of your choosing if you become disabled or incapacitated. The Durable Power of Attorney gives your attorney-in-fact the power to manage your financial affairs and direct funds where needed on your behalf. The Health Care Proxy gives your Health Care Agent the power to make medical decisions for you. The Advanced Care Directive gives your Health Care Agent specific instructions on the future care and treatment you want.

6. Why do it now?

By appointing an attorney-in-fact now, you are able to select a person you trust to manage your financial affairs. You may offer you peace of mind knowing your estate will be managed and protected for you and your family if you become disabled. Executing a Durable Power of Attorney while competent can avoid the need for Conservatorship.

7. Where can I find more information on A Durable Power of Attorney?

For more information on the law and further instructions on executing this document consult an attorney or , go to:

http://www.malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter201b

8. What are other options to consider as an alternative to Conservatorship?

There are alternative arrangements that may help an adult manage their financial affairs, such as:

a. Joint Bank Accounts  A joint bank account can be established to help an adult manage their money, save funds, and write checks.

b. Representative Payee  If an adult is receiving Social Security benefits or other state or federal   benefits, a person can be named as the representative payee to receive and help manage the benefits for the adult’s well-being. Read more at www.ssa.gov/payee/

c. Trust A trust can be established naming a person as the “trustee” to help manage and invest the adult’s estate.

 

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