What changes occurred in Massachusetts Durable Power of Attorney law in 2008?

Full question:

In regards to Chapter 201 B of the General Laws of MA, I am nearly done drafting a Uniform Durable Power of Attorney document for my Mom. My brother-in-law, an attorney, has provided guidance. He says several sections of Chapter 201 B were repealed and replaced with new wording in 2008. 1.) What is that new wording? 2.) What sections or text, specifically, does the new wording replace? If we were to finalize/notarize our DPA before the new wording takes effect in July 2009, would our DPA be nullified in whole or in part by the new and revised wording?

• Category: Power of Attorney
• Date: 04/07/2025
• State: Massachusetts

Answer:

A power of attorney is a legal document that allows someone to act on behalf of another person, known as the principal. The person granted this authority is called the agent or attorney-in-fact. If the principal's decisions conflict with the agent's, the principal's decisions take precedence, provided the agent consults the principal first.

The agent has a fiduciary duty, meaning they must act in the principal's best interest and follow their directions. Agents must keep their finances separate from the principal's, maintain detailed records of transactions, and cannot benefit personally from transactions unless explicitly allowed in the power of attorney. If an agent acts against the principal's interests or outside their authority, they may be held personally liable.

In 2008, Massachusetts repealed Chapter 201 B and replaced it with the new Uniform Probate Code. The updated provisions include:

• Section 5-501: Defines a durable power of attorney and specifies that it remains effective despite the principal's subsequent disability or incapacity.
• Section 5-502: States that actions taken by the agent during the principal's disability have the same effect as if the principal were competent.
• Section 5-503: Addresses the relationship between the agent and any court-appointed fiduciary.
• Section 5-504: Clarifies that the principal's death does not revoke the power of attorney for actions taken without the agent's knowledge of the death.
• Section 5-505: Allows for proof of the power's validity through an affidavit.
• Section 5-506: Authorizes the agent to take legal action if a third party refuses to honor the power of attorney.
• Section 5-507: Protects third parties acting in good faith reliance on a durable power of attorney.

The previous statute, G.L. c. 201B, § 1, which defined durable powers of attorney, has been repealed and replaced. If you finalize and notarize your Durable Power of Attorney before the new law takes effect in July 2009, it will remain valid unless it conflicts with the new provisions. However, it’s advisable to ensure that your document complies with the updated law to avoid any potential issues.