Is Your Massachusetts Durable Power of Attorney Still Valid?

A Durable Power of Attorney can be a good way to avoid conservatorship proceedings in Probate Court if you need somebody to handle financial matters for you, but it is only as good as the respect it receives.  In the past, many financial institutions would refuse to honor Durable Powers of Attorney if they were too old.  Their argument — not found anywhere in the law — was that old Durable Powers of Attorney became stale, and no longer effective.

On July 1, 2009, the Uniform Probate Code became effective in Massachusetts, and it specifically states that a Durable Power of Attorney does not become ineffective due to a lapse of time.  That means that Durable Powers of Attorney executed on or after July 1, 2009 can remain in effect for as long as you want, including your entire life.

The legislation implementing the Uniform Probate Code in Massachusetts involved changing many different laws, and some were replaced or amended, and others were repealed. The Uniform Probate Code does not specifically protect Durable Powers of Attorney under the law in effect before July 1, 2009.  After a careful review of the law, it is my belief that all Durable Powers of Attorney executed under previous Massachusetts law may be invalid.  Where the previous Massachusetts durable power of attorney laws were repealed, not replaced, and where the state legislature had made choices in that legislation as to whether laws should be replaced or repealed, the effect is that the previous Massachusetts law,  Chapter 201B, was eliminated as of July 1, 2009 as if the law had never existed.  That means Durable Powers of Attorney which make reference to Massachusetts General Laws, Chapter 201B became invalid on July 1, 2009, and any persons who have such documents should arrange to re-execute new Durable Powers of Attorney effective under the Massachusetts Uniform Probate Code.