Law Office of Richard M. Russell
197 Palmer Avenue
Falmouth, Massachusetts 02540
508.457.7557

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SITE DIRECTORY

The "Stale" Durable Power of Attorney

While a durable power of attorney is a valuable document that allows trusted family members, friends, or advisors to assist a property owner when the owner is unable to attend to his or her affairs, the document is not without its complexities.

An inherent difficulty when attempting to use a durable power of attorney is that the 
institution  or person to whom the document is presented (e.g., a bank or a purchaser of real estate) is asked to deal with other than the owner of property. One particular problem is that the person to whom the document is presented must assume that the document has not been revoked since it was signed. The prospect of possible revocation become greater as the time since the document was signed increases (this is referred to as a power of attorney becoming “stale”).

While Massachusetts law provides that a durable power of attorney remains valid notwithstanding the lapse of time since its signing (G.L. c. 190B, § 5-502) and that one to whom the document is presented may rely on the document (G.L. c. 190B, § 5-507), nevertheless it is wise periodically to execute an updated power of attorney--to avoid the not unreasonable hesitation that a bank, for instance, might express when asked to rely on an older durable power of attorney. * (How comfortable would you be handing over a depositor’s money to someone other than the depositor?) Also, attorney-prepared durable powers of attorney tend to evolve with time and with new developments (HIPAA, reverse mortgages, crypto currency, changes in tax and other laws), and thus a current durable power of attorney is likely to better serve the signer.

On the other hand, if the signer is unable to execute a current power of attorney, an older power of attorney remains valid and those unreasonably refusing to honor a valid durable power of attorney may be held responsible for any harm that results (G.L. c. 190B, § 5-506). *

* While a properly executed durable power of attorney may be enforced in court, rather than litigating a dispute it is far simpler to execute a current durable power of attorney, if possible.