Sunday, February 26, 2017

Durable Power of Attorney or Guardianship?

   Right about the time I first started practicing law about 38 years ago, the Massachusetts legislature passed a statute allowing Powers of Attorney to be 'Durable', that is, they remained in effect even after the person executing it became legally incompetent. Prior to that, if a person became legally incompetent, or unable to communicate their wishes, the only option for handling their legal affairs was to petition the Probate & Family Court for a guardianship proceeding on that person's behalf. This procedure is expensive, time-consuming, and could lead to extensive litigation if the heirs-at-law do not agree on who should serve as guardian, or even if a guardian is necessary.
   A Durable Power of Attorney is an essential estate planning tool for everybody. The cost of preparing one is relatively nominal, and it allows the trusted person you choose to continue handling your affairs, whether it be running your business, paying your bills, or hiring caretakers and selling property. The DPOA can remain dormant until you need it, and can be revoked at any time, by a writing to that effect. Best of all, it is immediately available when needed (provided you left an original where it can be easily accessed), and costs you and your family nothing to use.
   Nowadays it is only necessary to bring a formal guardianship under a few circumstances:

     1.  If the Protected Person failed to execute a Durable Power of Attorney prior to becoming incompetent, or losing their ability to communicate (as from a stroke). An incompetent person cannot legally execute a DPOA.
    2.  If the executed Power of Attorney is challenged due to undue influence or financial abuse on the part of the named attorney-in-fact, which is often alleged by concerned family members or Elder Protective Services.
    3.  If the Protected Person suffers mental illness or dementia, and needs to be prescribed psychotropic medication, Massachusetts law requires that the guardian present a medically necessary Treatment Plan to be approved by the Probate Court, which describes the medication and dosages, and which will monitor the treatment. The Court will appoint specialized counsel to represent the Protected Person in the proceeding, called Rogers counsel after the case establishing the procedure, and require a new treatment plan to be approved periodically. If the Protected Person's estate cannot afford the cost of Roger's counsel, the Commonwealth will pay for it.
    In sum, for almost all situations a Durable Power of Attorney is a must for proper estate planning, and will save you and your heirs substantial grief and monies if properly utilized.
     As always, legal advice is very fact-specific, and life decisions should not be made on the basis of an article. If you need assistance or answers in this area of the law, I can be contacted directly, or through my web site at

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