Massachusett's durable power-of-attorney (DPOA).

Full question:

We signed, witnessed, and notarized a Durable Power of Attorney in May of 2009. The document is the broad form, written to conform with the Massachusetts 201B code. A new code called 190B became effective and applicable to any DPA written on or after July 1, 2009. On July 14, we submitted an application on behalf of our Mom for a Home Equity Line of Credit. Note that the application date is after July 1, when the 190B statute became effective. As best I can determine, the 190B changes to 201B are extremely minor, and do not apply to my Mom as a person or as a loan applicant. QUESTION: The bank told me the DPA itself was not accepted. I can't reach the local bank for clarification until Monday 8/03, and I need a little peace of mind ASAP. ___DOES a DPA submitted with a loan application AFTER July 1 2009 need to say it is (and be)compliant with the new 190B code in order to be legally effective and acceptable WHEN SUBMITTED with a loan application on or after July 1 2009 ? ___ALSO, now that the 201B DPA has become effective (in May), CAN we possibly have a new 190B DPA created for my Mom if that is actually necessary to apply for a loan on her behalf (the bank we applied to knows she already needs a DPA, so can Mom even SIGN a new 190B DPA if we need one to reapply to that same bank ????). Please help! Thanks!!

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

Answer:

From your letter I gathered that the lender didn't say why it wouldn't honor the durable power. Lenders and other parties dealing with powers historically have felt free to reject a power upon the ground of staleness. Statutory durable powers are meant to eliminate staleness as a ground of objection to a power. Inasmuch as you cannot compel a lender to make a loan, a prudent course of conduct could be to ask the grantor make a new durable power under the current Massachusetts' statute, Chapter 201B. Even though you are familiar with Massachusetts' statutory law regarding durable powers of attorney, I have included a link to Massachusetts' Chapter 201B for ease of reference.

If for whatever reason, it is impossible or impractical for the grantor the make a new durable power under Chapter 201B, then an alternative--assuming that the grantor is either incapacitated or financially incapable under Massachusetts law, then an alternative could be a protective proceeding--guardianship or conservatorship--under Massachusetts law.

Please see the links below for the January 2009 Massachusetts Uniform Probate Code.

Durable Power Of Attorney Law & Legal Definition

A Durable Power of Attorney is a legal document that enables the grantor (Principal) to designate another person called the agent or attorney-in-fact to act on behalf of the Principal, even in the event the individual becomes disabled or incapacitated. Therefore a "durable" power of attorney stays valid even if the Principal is not able to handle his or her affairs (incapacitated). Usually a power of attorney becomes ineffective if its grantor dies or becomes incapacitated. If the grantor does not specify that that the power of attorney is to be durable, it will automatically end when the principal becomes incapacitated.

Capacity Law & Legal Definition

Capacity is subject to different meanings, but in the legal sense, it refers to the ability to make a rational decision based upon all relevant facts and considerations. In criminal law, the defendant must have the capacity to understand the wrongfulness of his or her actions. In making a will, the maker of the will must have testamentary capacity, meaning that he/she must understand the nature of making a will, have a general idea of what he/she possesses, and know who are members of the immediate family or other "natural objects of his/her bounty.