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Legal Notes

Updating Durable Powers of Attorney

Pam OddyAttorney Pamela Oddy, Athol, Mass., 978-249-7511At a recent conference for seniors, I was told by a member of the audience that a lawyer had suggested to this person that the Powers of Attorney that were signed eight years ago should be updated. The question from this person was essentially asking whether or not this recommendation was a valid one. The answer is yes; it is a valid suggestion.

Durable Powers of Attorney are, theoretically, valid until the person who has signed the Power has died or the Power has been rescinded or revoked or supplanted by a guardianship/conservatorship process.

Unfortunately, I am finding that financial institutions, such as banks, are wanting the Power of Attorney to be no older than five years. To compound the problem, other financial institutions such as those that handle stock sales or transfers are not comfortable with a Power of Attorney that is older than six months.

Some individuals may have become incapacitated since the Power of Attorney was signed and if the document was a “durable” Power of Attorney, it remains in force even if the principal (person who signed it) has become incapacitated.  Another way to satisfy the concerns of entities such as financial institutions is to have the agent appointed by the durable power of attorney sign an affidavit in the presence of a notary, assuming these statements are true, that states: 

  1. The attached copy of the Durable Power of Attorney document is a true and accurate copy of the original.
  2. The power granted is in full force and effect and has not been revoked.
  3. The Grantor, (name of principal), is alive.

Although updating Powers every six months is not feasible, if the principal remains able to do so, I do recommend to my clients that they update their Powers every five to six years. Incidentally, that is also a good time to glance at your Will to be sure it is the way you want it to be.

The views expressed in this column represent general information. To address your particular and specific needs consult your own attorney. If you need help with referral to an attorney, contact the Franklin County Bar Association at (413) 773-9839 or the Worcester County Bar Association at (978) 752-1311. Elder law resources may be found through the National Academy of Elder Law Attorneys, Massachusetts Chapter, at massnaela.com or 617-566-5640.

Community Legal Aid (CLA) provides legal services free to people age 60 and older for civil legal matters with an emphasis on access to health care coverage (MassHealth and Medicare) and public benefits as well as tenants’ rights. A request for legal assistance can be made by phone at 413-774-3747 or toll-free 1-855-252-5342 during their intake hours (Monday, Tuesday, Thursday, and Friday from 9:30 a.m. to 12:15 p.m. and Wednesday from 1:30 p.m. to 4:15 p.m.) or any time online by visiting www.communitylegal.org.