Massachusetts Uniform Durable Power of Attorney Act

Chapter 201B: Section 1. Durable power of attorney; definition

Section 1. (a) A durable power of attorney is a power of attorney by which a principal, in writing, designates another as his attorney in fact and the writing contains the words, "This power of attorney shall not be affected by subsequent disability or incapacity of the principal'', or "This power of attorney shall become effective upon the disability or incapacity of the principal'', or similar words showing the intent of the principal that the authority conferred shall continue notwithstanding the subsequent disability or incapacity of the principal.

(b) References in this chapter to the disability or incapacity of the principal shall mean the mental illness or other disability of the principal recognized under the General Laws.

Chapter 201B: Section 2. Effect of acts pursuant to durable power of attorney

Section 2. All acts done by an attorney in fact pursuant to a durable power of attorney during any period of disability or incapacity of the principal shall have the same effect and inure to the benefit of, and bind the principal and his successors in interest, as if the principal were competent and not disabled.

Chapter 201B: Section 3. Court appointed conservator, guardian of the estate, etc.; powers; nomination by principal

Section 3. (a) If, following execution of a durable power of attorney, a court appoints a conservator, guardian of the estate, or other fiduciary charged with the management of all of the property of the principal or all of his property except specified exclusions, the attorney in fact shall be accountable to such fiduciary as well as to the principal. Such fiduciary shall have the same power to revoke or amend the power of attorney that the principal would have had if such principal were not disabled or incapacitated.

(b) A principal may nominate, by a durable power of attorney, the conservator, guardian of his estate, or guardian of his person for consideration by the court, if protective proceedings for the person or estate of such principal are thereafter commenced. The court shall make its appointment in accordance with the most recent such nomination by the principal except for good cause or disqualification.

Chapter 201B: Section 4. Death, disability or incapacity of principal; acts of attorney without actual knowledge

Section 4. (a) The death of a principal who has executed a written power of attorney, durable or otherwise, shall not revoke or terminate the agency as to the attorney in fact or other person, who, without actual knowledge of the death of the principal, acts in good faith under such power. Any such action so taken, unless otherwise invalid or unenforceable, shall bind a successor in interest of the principal.

(b) The disability or incapacity of a principal who has previously executed a written power of attorney that is not a durable power shall not revoke or terminate the agency as to the attorney in fact or other person, who, without actual knowledge of the disability or incapacity of the principal, acts in good faith under such power. Any such action so taken, unless otherwise invalid or unenforceable, shall bind the principal and his successor in interest.

Chapter 201B: Section 5. Good faith reliance; knowledge of termination of power

Section 5. As to acts undertaken in good faith reliance thereon, an affidavit executed by the attorney in fact under a power of attorney, durable or otherwise, stating that he did not have, at the time of exercise of the power, actual knowledge of the termination of the power by revocation or of the death, disability or incapacity of the principal shall be conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power of attorney requires execution and delivery of any instrument that is recordable, such affidavit when authenticated for record shall be likewise recordable. This section shall not affect any provision in a power of attorney for its termination by expiration of time or occurrence of an event other than express revocation or a change in the capacity of the principal.

Chapter 201B: Section 6. Application and construction

Section 6. This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.

Chapter 201B: Section 7. Short title

Section 7. This chapter may be cited as the Uniform Durable Power of Attorney Act.
[ Text of section effective until July 1, 2009. Repealed by 2008, 521, Sec. 22. See 2008, 521, Sec. 44.]

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