HOUSE DOCKET, NO. 470 FILED ON: 1/22/2021
HOUSE . . . . . . . . . . . . . . . No.
The Commonwealth of Massachusetts
_________________
PRESENTED BY:
Carmine Lawrence Gentile
_________________
To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
An Act relative to the Uniform Power of Attorney Act.
_______________
PETITION OF:
NAME: DISTRICT/ADDRESS: DATE ADDED:
Carmine Lawrence Gentile 13th Middlesex 1/21/2021
David Paul Linsky 5th Middlesex 1/22/2021
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 HOUSE DOCKET, NO. 470 FILED ON: 1/22/2021
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[Pin Slip]
[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 3658 OF 2019-2020.]
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Second General Court
(2021-2022)
_______________
An Act relative to the Uniform Power of Attorney Act.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 SECTION 1. The General Laws are hereby amended by inserting after chapter 201F the
2 following chapter:-
3 CHAPTER 201G
4 UNIFORM POWER OF ATTORNEY ACT
5 Section 1. For the purposes of this chapter the following terms shall, unless the context
6 clearly appears otherwise, have the following meanings:-
7 “Agent”, a person granted authority to act for a principal under a power of
8 attorney, whether denominated an agent, attorney-in-fact, or otherwise. The term includes an
9 original agent, coagent, successor agent, and a person to which an agent’s authority is delegated.
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10 “Benefits from governmental programs or civil or military service”, any benefit, program
11 or assistance provided under a statute or regulation including Social Security, Medicare, and
12 Medicaid.
13 “Durable,” with respect to a power of attorney, means not terminated by the
14 principal’s incapacity.
15 “Electronic”, relating to technology having electrical, digital, magnetic, wireless,
16 optical, electromagnetic or similar capabilities.
17 “Good faith”, honesty in fact.
18 “Incapacity”, inability of an individual to manage property or business affairs
19 because the individual:
20 (i) has an impairment in the ability to receive and evaluate information or
21 make or communicate decisions even with the use of technological assistance; or
22 (ii) is:
23 (A) missing;
24 (B) detained, including incarcerated in a penal system; or
25 (C) outside the United States and unable to return.
26 “Person”, an individual, corporation, business trust, estate, trust, partnership,
27 limited liability company, association, joint venture, public corporation, government or
28 governmental subdivision, agency, or instrumentality or any other legal or commercial entity.
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29 “Power of attorney”, a writing or other record that grants authority to an agent to
30 act in the place of the principal, whether or not the term power of attorney is used.
31 “Presently exercisable general power of appointment,” with respect to property or
32 a property interest subject to a power of appointment, means power exercisable at the time in
33 question to vest absolute ownership in the principal individually, the principal’s estate, the
34 principal’s creditors, or the creditors of the principal’s estate. The term includes a power of
35 appointment not exercisable until the occurrence of a specified event, the satisfaction of an
36 ascertainable standard, or the passage of a specified period only after the occurrence of the
37 specified event, the satisfaction of the ascertainable standard, or the passage of the specified
38 period. The term does not include a power exercisable in a fiduciary capacity or only by will.
39 “Principal”, an individual who grants authority to an agent in a power of attorney.
40 “Property”, anything that may be the subject of ownership, whether real or
41 personal, or legal or equitable, or any interest or right therein.
42 “Record”, information that is inscribed on a tangible medium or that is stored in
43 an electronic or other medium and is retrievable in perceivable form.
44 “Retirement plan”, a plan or account created by an employer, the principal or another
45 individual to provide retirement benefits or deferred compensation of which the principal is a
46 participant, beneficiary or owner, including a plan or account under the following sections of the
47 Internal Revenue Code:
48 (1) an individual retirement account under Internal Revenue Code Section
49 408, 26 U.S.C. Section 408;
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50 (2) a Roth individual retirement account under Internal Revenue Code
51 Section 408A, 26 U.S.C. Section 408A;
52 (3) a deemed individual retirement account under Internal Revenue Code
53 Section 408(q), 26 U.S.C. Section 408(q);
54 (4) an annuity or mutual fund custodial account under Internal Revenue
55 Code Section 403(b), 26 U.S.C. Section 403(b);
56 (5) a pension, profit-sharing, stock bonus, or other retirement plan
57 qualified under Internal Revenue Code Section 401(a), 26 U.S.C. Section 401(a);
58 (6) a plan under Internal Revenue Code Section 457(b), 26 U.S.C. Section
59 457(b); and
60 (7) a nonqualified deferred compensation plan under Internal Revenue
61 Code Section 409A, 26 U.S.C. Section 409A.
62 “Sign”, with present intent to authenticate or adopt a record:
63 (A) to execute or adopt a tangible symbol; or
64 (B) to attach to or logically associate with the record an electronic sound,
65 symbol, or process.
66 “State”, a state of the United States, the District of Columbia, Puerto Rico, the
67 United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of
68 the United States.
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69 “Stocks and bonds”, stocks, bonds, mutual funds and all other types of securities
70 and financial instruments, whether held directly, indirectly or in any other manner. The term
71 does not include commodity futures contracts and call or put options on stocks or stock indexes.
72
73 Section 2. This chapter applies to all powers of attorney except:
74 (i) a power to the extent it is coupled with an interest in the subject of the power,
75 including a power given to or for the benefit of a creditor in connection with a credit transaction;
76 (ii) a power to make health-care decisions;
77 (iii) a proxy or other delegation to exercise voting rights or management rights
78 with respect to an entity; and
79 (iv) a power created on a form prescribed by a government or governmental
80 subdivision, agency or instrumentality for a governmental purpose.
81
82 Section 3. A power of attorney created under this chapter is durable unless it expressly
83 provides that it is terminated by the incapacity of the principal.
84
85 Section 4. A power of attorney shall be signed by the principal or in the principal’s
86 conscious presence by another individual directed by the principal to sign the principal’s name
87 on the power of attorney. A signature on a power of attorney is presumed genuine if the principal
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 88 acknowledges the signature before a notary public or other individual authorized by law to take
89 acknowledgments.
90 Section 5. (a) A power of attorney executed in the commonwealth on or after June 30,
91 2022 is valid if its execution complies with section 4.
92 (b) A power of attorney executed in the commonwealth before June 30, 2022 is valid if
93 its execution complied with the law of the commonwealth as it existed at the time of execution.
94 (c) A power of attorney executed other than in the commonwealth is valid in the
95 commonwealth if, when the power of attorney was executed, the execution complied with:
96 (1) the law of the jurisdiction that determines the meaning and effect of
97 the power of attorney pursuant to section 6; or
98 (2) the requirements for a military power of attorney pursuant to 10
99 U.S.C. Section 1044b.
100 (d) Except as otherwise provided by a general or special law other than this
101 chapter, a photocopy or electronically transmitted copy of an original power of attorney has the
102 same effect as the original.
103
104 Section 6. The meaning and effect of a power of attorney is determined by the law of the
105 jurisdiction indicated in the power of attorney and, in the absence of an indication of jurisdiction,
106 by the law of the jurisdiction in which the power of attorney was executed.
107
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108 Section 7. (a) In a power of attorney, a principal may nominate a conservator or guardian
109 of the principal’s estate or guardian of the principal’s person for consideration by the court if
110 protective proceedings for the principal’s estate or person are begun after the principal executes
111 the power of attorney. Except for good cause shown or disqualification, the court shall make its
112 appointment in accordance with the principal's most recent nomination.
113 (b) If, after a principal executes a power of attorney, a court appoints a
114 conservator or guardian of the principal’s estate or other fiduciary charged with the management
115 of some or all of the principal's property, the agent is accountable to the fiduciary as well as to
116 the principal. The power of attorney is not terminated and the agent’s authority continues unless
117 limited, suspended, or terminated by the court.
118
119 Section 8. (a) A power of attorney is effective when executed unless the principal
120 provides in the power of attorney that it becomes effective at a future date or upon the
121 occurrence of a future event or contingency.
122 (b) If a power of attorney becomes effective upon the occurrence of a future
123 event or contingency, the principal, in the power of attorney, may authorize one or more persons
124 to determine in a writing or other record that the event or contingency has occurred.
125 (c) If a power of attorney becomes effective upon the principal’s incapacity and
126 the principal has not authorized a person to determine whether the principal is incapacitated, or
127 the person authorized is unable or unwilling to make the determination, the power of attorney
128 becomes effective upon a determination in a writing or other record by:
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129 (1) a physician or licensed psychologist that the principal is incapacitated
130 within the meaning of clause (i) of the definition of “incapacity” in section 1; or
131 (2) an attorney at law, a judge, or an appropriate governmental official
132 that the principal is incapacitated within the meaning of clause (ii) of said definition of
133 “incapacity” in said section 1.
134 (d) A person authorized by the principal in the power of attorney to determine
135 that the principal is incapacitated may act as the principal’s personal representative pursuant to
136 the Health Insurance Portability and Accountability Act, Sections 1171 through 1179 of the
137 Social Security Act, 42 U.S.C. Section 1320d and applicable regulations, to obtain access to the
138 principal’s health-care information and communicate with the principal’s health-care provider.
139
140 Section 9. (a) A power of attorney terminates when:
141 (1) the principal dies;
142 (2) the principal becomes incapacitated, if the power of attorney is not
143 durable;
144 (3) the principal revokes the power of attorney;
145 (4) the power of attorney provides that it terminates;
146 (5) the purpose of the power of attorney is accomplished; or
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147 (6) the principal revokes the agent’s authority or the agent dies, becomes
148 incapacitated, or resigns, and the power of attorney does not provide for another agent to act
149 under the power of attorney.
150 (b) An agent’s authority terminates when:
151 (1) the principal revokes the authority;
152 (2) the agent dies, becomes incapacitated, or resigns;
153 (3) an action is filed for the dissolution or annulment of the agent’s
154 marriage to the principal or their legal separation, unless the power of attorney otherwise
155 provides; or
156 (4) the power of attorney terminates.
157 (c) Unless the power of attorney otherwise provides, an agent’s authority is
158 exercisable until the authority terminates under subsection (b), notwithstanding a lapse of time
159 since the execution of the power of attorney.
160 (d) Termination of an agent’s authority or of a power of attorney is not effective
161 as to the agent or another person that, without actual knowledge of the termination, acts in good
162 faith under the power of attorney. An act so performed, unless otherwise invalid or
163 unenforceable, binds the principal and the principal’s successors in interest.
164 (e) Incapacity of the principal of a power of attorney that is not durable does not
165 revoke or terminate the power of attorney as to an agent or other person that, without actual
166 knowledge of the incapacity, acts in good faith under the power of attorney. An act so
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167 performed, unless otherwise invalid or unenforceable, binds the principal and the principal’s
168 successors in interest.
169 (f) The execution of a power of attorney does not revoke a power of attorney
170 previously executed by the principal unless the subsequent power of attorney provides that the
171 previous power of attorney is revoked or that all other powers of attorney are revoked.
172
173 Section 10. (a) A principal may designate 2 or more persons to act as coagents. Unless
174 the power of attorney otherwise provides, each coagent may exercise its authority independently.
175 (b) A principal may designate 1 or more successor agents to act if an agent
176 resigns, dies, becomes incapacitated, is not qualified to serve or declines to serve. A principal
177 may grant authority to designate 1 or more successor agents to an agent or other person
178 designated by name, office, or function. Unless the power of attorney otherwise provides, a
179 successor agent:
180 (1) has the same authority as that granted to the original agent; and
181 (2) may not act until all predecessor agents have resigned, died, become
182 incapacitated, are no longer qualified to serve, or have declined to serve.
183 (c) Except as otherwise provided in the power of attorney and subsection (d), an
184 agent that does not participate in or conceal a breach of fiduciary duty committed by another
185 agent, including a predecessor agent, is not liable for the actions of the other agent.
186 (d) An agent that has actual knowledge of a breach or imminent breach of
187 fiduciary duty by another agent shall notify the principal and, if the principal is incapacitated,
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188 take any action reasonably appropriate in the circumstances to safeguard the principal’s best
189 interest. An agent that fails to notify the principal or take action as required by this subsection is
190 liable for the reasonably foreseeable damages that could have been avoided if the agent had
191 notified the principal or taken such action.
192
193 Section 11. Unless the power of attorney otherwise provides, an agent is entitled to
194 reimbursement of expenses reasonably incurred on behalf of the principal and to compensation
195 that is reasonable under the circumstances.
196
197 Section 12. Except as otherwise provided in the p