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What is a Power of Attorney?

There comes a time in life when you may feel the need for someone to help you handle your affairs. Perhaps you need help with depositing funds, writing checks, or paying bills. Or perhaps you need help with the sale of securities, with contracts involving real estate, or with a law suit or claim against you. One thing you might consider is a Power of Attorney.

WHAT IS A POWER OF ATTORNEY?

A Power of Attorney is a simple legal device enabling one person to authorize another to manage his or her affairs. It is a written agreement between an individual and another person, usually a relative, a friend, an attorney, a business associate, or a financial advisor, giving that person the right to handle money, sign documents, or conduct transactions on the individual's behalf. The person granting the power is the "grantor." The person appointed is the "Attorney-in-Fact." The agreement sets forth all of the powers and duties of the Attorney-in-Fact, and may be limited to suit the grantor's particular situation.

There are now two types of Powers of Attorney in Massachusetts:

1. A Regular Power of Attorney terminates when the grantor becomes incompetent because of mental disability. The incompetent person would then need a court-appointed conservator or guardian to act on his/her behalf.

2. A Durable Power of Attorney continues even after the grantor becomes incompetent, and is, in effect, an alternative to a conservator or guardian. The important difference is that there is no court appointment or court supervision involved in a Durable Power of Attorney.

HOW DO YOU GRANT A POWER OF ATTORNEY?

You or your lawyer can draw up the Power of Attorney specifying the powers granted, to whom they are being granted, and for how long the power will be in effect. The power should then be signed and notarized. Both persons should keep a copy of the document.

WHAT ARE THE RESPONSIBILITIES OF THE "ATTORNEY-IN-FACT?"

The grantor can delegate as much or as little power as desired. The powers given can range from the cashing and signing of checks to the control of all financial affairs. The Attorney-in-Fact must carry out this responsibility in the best interest of the grantor.

HOW LONG IS THE POWER OF ATTORNEY IN EFFECT?

A Power of Attorney is in effect until the "Attorney-in-Fact" learns of the death of the grantor, or learns of the legal revocation of the Power of Attorney. If the Power of Attorney is not a Durable Power of Attorney, it also terminates when the Attorney-in-Fact learns of the grantor's mental incompetency.

The grantor may revoke the Power of Attorney at any time by a writing directed to the "Attorney-in-Fact," stating that he/she is revoking the Power of Attorney previously given on the specified date. This writing should be notarized and sent certified mail, return receipt requested. The grantor should also request that the original Power of Attorney be returned so that he/she can destroy it.

If an individual becomes mentally incompetent and has granted a Durable Power of Attorney, (the type that continues after the grantor becomes mentally incompetent), he/she cannot revoke the Power of Attorney. In such a case, only a court-appointed guardian or conservator can revoke the Power of Attorney.

BE CAREFUL . . .

You should exercise extreme care before granting a Power of Attorney, because you can delegate extensive decision-making authority without realizing the consequences at the time of making the agreement. You must be careful not to grant more powers than are absolutely necessary. Most importantly, you must be sure that the person to whom you give Power of Attorney is capable and trustworthy, because the potential for abuse of the power is great.

If you feel unable to handle your financial affairs and would like to appoint someone else to help you, you may want to consider a Power of Attorney. For further information, contact the lawyer of your choice.

This information was prepared by:

Senior Citizen's Law and Advocacy Project
Legal Assistance Corporation of Central Massachusetts
322 Main Street, Suite 320
Worcester, MA 01608
(508) 752-3718

and

435 Main Street
Fitchburg, MA 01420
(508) 345-0301


   

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