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Power of attorney or guardian controls under MA law?

Submitted by RyanT on Fri, 11/25/2011 - 08:30
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I have a durable power of attorney for financial matters that I executed in Massachusetts several years ago. If I become incompetent and someone asks the court to appoint a guardian or conservator for me who will control, the guardian or the fellow I named in my power of attorney? I would like the power of attorney to remain in control if possible. Thank you.

‹ limited conservatorship or guardianship in MA Falling out between myself and my father in law ›

Guardian v. Power of attorney

Submitted by The Editor on Fri, 11/25/2011 - 12:59.

Assuming you will remain competent until January 2012, I'll answer this question with reference to the new Massachusetts probate code.  The person appointed by the court as your guardian and/or conservator would control over the person named as your attorney in fact in your durable power of attorney.  Massachusetts General Laws Chapter 190B, Section 5-503(a) specifically states that the attorney in fact (the person named as your agent in the durable power of attorney) is accountable to the fiduciary named by the court, just as he would be accountable to the principal.  The appointed guardian or conservator is also empowered to revoke or amend the power of attorney.

However, under the old MA law on this point, and under Section 5-503(b) of the new probate code, you can execute a new power of attorney that nominates your preferred guardian or conservator.   In that way, your named attorney in fact may simply change titles in the event you require a guardian or conservator.  Hope that helps.

 

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