A power of attorney (POA) is one of the most powerful documents in any Massachusetts estate plan. It allows someone you trust — called an attorney-in-fact or agent — to act on your behalf in financial or property matters. Whether you’re considering creating a POA for yourself, serving as an agent under a POA, or dealing with probate issues where a POA was involved, understanding the law is essential.
This article explains:
- What a Massachusetts power of attorney is and why it matters.
- The duties and responsibilities of an attorney-in-fact.
- Common pitfalls (including a real-world case where poor recordkeeping caused big problems).
- Practical tips for drafting and using a power of attorney effectively.
- How estate planning and probate attorneys can help.
What Is a Power of Attorney?
Under Massachusetts law, a power of attorney is a written document in which an individual (the principal) authorizes another person (the attorney-in-fact) to act on their behalf in financial and property matters (M.G.L. c. 190B, §§ 5-501 to 5-507).
A POA can be:
- Durable – remains effective even if the principal becomes incapacitated.
- Non-durable – ends if the principal loses capacity.
- Springing – only takes effect if a specific condition occurs, such as incapacity.
Because life is unpredictable, most Massachusetts estate planning attorneys recommend a durable power of attorney. This ensures someone can step in without court involvement if you become unable to manage your affairs.
Why Powers of Attorney Are Important
Without a POA, if you become incapacitated, your loved ones may need to go through probate court to establish a conservatorship or guardianship. This process is time-consuming, stressful, and expensive.
A properly drafted POA can:
- Allow a spouse, child, or trusted friend to pay your bills, manage bank accounts, or sell real estate if needed.
- Prevent delays in financial decision-making during a medical emergency.
- Coordinate with a revocable trust or other estate planning tools to ensure smooth management of your assets.
The Fiduciary Duties of an Attorney-in-Fact
When someone accepts the role of attorney-in-fact, they aren’t just doing a favor — they take on fiduciary duties. That means they must act with the highest duty of care, loyalty, and honesty toward the principal.
In Massachusetts, an attorney-in-fact must:
- Act in good faith and in the principal’s best interest.
- Keep accurate records of receipts, payments, and transactions.
- Avoid conflicts of interest and self-dealing.
- Communicate with the principal whenever possible, or with a court-appointed guardian or conservator if one is later named.
A Real-World Lesson: The Michigan Case
In a recent Michigan case,
Cynthia Mifsud v. Fam. Options Servs. (In re BJH), No. 369128, 2025 Mich. App. LEXIS 2803 (Ct. App. Apr. 10, 2025), a daughter acting under her mother’s POA was accused of misusing funds. The court found that she failed to substantiate more than $100,000 in expenses. She had withdrawn cash without receipts, paid her own bills with her mother’s money, and disguised personal expenses as caregiver costs. The court ruled she breached her fiduciary duties, despite her claim that she acted in “good faith”.
The lesson? Good intentions aren’t enough. Courts require documentation and transparency. Massachusetts courts would take a similar approach — an attorney-in-fact who can’t account for funds risks being held personally liable.
Common Pitfalls with Powers of Attorney
- Poor Recordkeeping
Failing to keep receipts or track expenses can lead to accusations of misconduct. - Mixing Funds
Agents must never combine the principal’s money with their own. Separate accounts are essential. - Unauthorized Gifts
An attorney-in-fact cannot make gifts to themselves unless the POA specifically authorizes it. - Failing to Communicate
Massachusetts law expects agents to keep principals informed and cooperate with healthcare decision-makers when appropriate. - Ignoring the Estate Plan
Spending in ways that undermine a will or trust can be considered a breach of fiduciary duty.
Tips for Drafting and Using a Power of Attorney in Massachusetts
If You’re Creating a POA
- Choose carefully. Select someone trustworthy, financially responsible, and willing to serve.
- Be specific. Your POA should clearly spell out the powers you want to give, such as the ability to make gifts, manage real estate, or amend a trust.
- Coordinate with your estate plan. Your POA should work hand-in-hand with your will and trust.
If You’re Serving as Attorney-in-Fact
- Keep meticulous records. Use spreadsheets, receipts, and separate accounts.
- Sign properly. Always sign documents “as attorney-in-fact for [Principal’s Name],” not in your own name.
- Get professional advice. When in doubt, consult an attorney before taking action.
Alternatives to a Power of Attorney
While a POA is powerful, other tools can also help:
- Revocable Trusts – allow ongoing asset management and avoid probate.
- Joint Bank Accounts – give someone immediate access to funds, though they also create ownership rights.
- Convenience Accounts – allow another person to write checks without ownership rights.
Each option has pros and cons. An estate planning attorney can help decide the best approach for your situation.
How an Attorney Can Help
If you’re:
- Thinking about drafting a POA,
- Unsure of your responsibilities as attorney-in-fact, or
- Facing disputes in probate court involving a POA,
a Massachusetts estate planning and probate lawyer can guide you. At Cote Law Group, we regularly help clients:
- Draft durable powers of attorney tailored to their needs.
- Advise attorneys-in-fact on their fiduciary duties.
- Represent families in probate disputes where powers of attorney are challenged.
Conclusion
A power of attorney is a vital part of any estate plan. But it also creates significant legal responsibilities. Whether you’re drafting one or serving under one, understanding Massachusetts law can prevent costly mistakes.
The key lessons?
- Choose your agent carefully.
- Act with loyalty and transparency.
- Document everything.
If you need help creating or using a power of attorney in Massachusetts, contact Cote Law Group today for a consultation.
Disclaimer: This article is for educational purposes only and is not a substitute for legal advice. Estate planning is fact-specific, and you should consult a Massachusetts estate planning attorney to understand your options.