Posted in MA Elder Law Questions and Answers...
Question: Submitted by RyanT on Fri, 11/25/2011 - 08:30
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.
Answer: 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.
Source:
Power of Attorney or Guardianship Controls Under MA Law?
After all the horror (B.S.) stories about "guardianship trumps"... the first part of the answer was scary, but the next calmed me down!
ReplyDeleteSo maybe it's safe to live in MA?
"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"
ReplyDeleteIn my opinion, at least until someone gives me a good reason to think otherwise, this is one of those legal technicalities that are intended to catch those who are unaware of them.
No, I don't think you can calm down, Thelma. Why execute a new power of attorney to name a guardian?
ReplyDeleteIf one is capable enough to do a power of attorney, a guardian isn't needed.
I concur that there remains cause for concern. In most states (I am not a MA attorney) a nomination is just that, and the probate court has broad authority in selecting the most qualified guardian, notwithstanding a nomination. In some states, a guardian must file a bond, even if nominated by the ward, and this requirement, alone, can disqualify a nominated guardian. I has great difficulty obtaining a bond for a client that had just inherited more than 1.5 million dollars, which bond was required because his father also left retirement accounts to my client's minor children, because he had a less than favorable credit score prior to his father's death. Also, keep in mind that a parochial probate judge can always prefer a fiduciary that is local, and more easily subject to the court's jurisdiction.
ReplyDelete