Is your power of attorney legally enforceable?

Many people in Massachusetts may have taken the wise step of estate planning years or even decades ago, and, as part of their estate plan created a medical power of attorney and financial power of attorney. However, that does not mean that those documents should be left to collect dust. They need to be reviewed periodically, to make sure they are still in line with any changes in law that may have occurred.

For example, the Uniform Health Care Decisions Act (UHCDA) received approval in 1993, and as time went on, more and more states adopted some version of it. This act addresses a person's power to permit organ donation, and a person's ability to admit a person to a health care facility. If one's medical power of attorney was drafted prior to the state's adoption of the UHCDA, it is time for a review.

In addition, 1996 saw the enactment by the United States Congress of the Health Insurance Portability and Accountability Act (HIPPA). This act was meant to address privacy issues for medical records. A power of attorney has to include the proper language that allows access to that person's records. Again, if one's medical power of attorney was drafted prior to the enactment of HIPPA, it is time for a review.

Finally, 2006 saw the enactment of the Uniform Power of Attorney Act (UPOAA). The UPOAA provides standardized provisions that every state can use, so that power of attorneys will be easier accepted. Prior to the enactment of the UPOAA, banks would sometimes reject a power of attorney that they thought was invalid. Certain powers must now be unequivocally included in a power of attorney for them to be valid and enforceable.

As this shows, it pays to have a medical power of attorney and financial power of attorney reviewed periodically. It can be a very distressing situation when the time comes to put one to use, only to find out it is outdated and cannot be enforced. Attorneys can help make sure your power of attorney complies with current laws and regulations.

Source: Forbes, "Don't Let Your Power Of Attorney Become Powerless," Sarah Mouser, June 13, 2017

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