Legal Question in Wills and Trusts in Massachusetts

Re: responsibilities of a power of attorney

Hopefully not a problem, and normally not be a problem,

but it isn't right to give that opinion without a review of the actual text.

I (or any lawyer) ought to see the actual document (or at least

all the text of it, if you're willing to send that by e-mail). It would be

irresponsible otherwise. The document may indeed commit your

husband to, for example, provide for your brother's necessities. However,

it seems unlikely, especially if the document is entitled simply

"Power of Attorney" or "Durable Power of Attorney". But it is still

possible!

Power of Attorney forms are hand-crafted and individualized. Is there

some reason you haven't asked the attorney who drafted it for you these

questions? Don't be afraid to call him or her and ask.

A powerholder (your husband), if he holds the power and thus controls

the principal's (his brother's) assets, will probably be under obligation to

pay his necessities FROM THOSE ASSETS.

Was your husband's brother competent to give that power at the time he

signed it? Does the document prescribe a procedure for revocation of the power (and

is Brother competent now to make that revocation? (Normally, your husband

could resign at any time, so don't sweat, although he can't take

his brother's money and then resign without properly accounting

for the property!)

You should find out if the power is a springing power (which only

becomes effective once the principal (brother) becomes incompetent,

and if so what conditions trigger (make effective) the power. How

incompetence is determined, and in my opinion, USUALLY should be an

easy threshhold to establish, not one requiring a series of doctors

to certify his incompetence, unless Brother is very wealthy and has

routine contact with several doctors.

If it's not a springing power, then it is very important that it be a "durable" power,

one which stays effective ("survives")

his brother's becoming incompetent. There's a statute

which suggests wording for making these powers durable

and they should be followed and even referred to.

If you wish to have me look over the text, you may send it to me:

Stuart Williams

Law Offices of Stuart J. Williams

21 Walter St.

Newton, MA

02459-2509

[email protected]

Fax 617 527-1763.

But first please answer my questions, especially the one

about contacting the drafting attorney. Also please tell me what city

you live in and where Brother resides.

Stuart Williams

Law Offices of Stuart J. Williams

21 Walter St.

Re: responsibilities of a power of attorney

Under a power of attorney, a person can only be sued for contracts that the attorney actually signs. If

your husband only pays checks, then he can't be sued and your house is not in jeopardy. However, if

he personally guarantees a contract he may be sued. You may wish to consider other methods of

protecting your home such as making sure you own your house with the modern type of tenancy by the

entireties and with a homestead.

These newsletters/articles are offered only for general informational and educational purposes. They

are not offered as and do not constitute legal advice or legal opinions. Although we intend to keep this

information current, we do not promise or guarantee that the information is correct, complete, or

up-to-date. You should not act or rely upon the information in these newsletters/articles without seeking

the advice of an attorney.

Alan Pransky

Law Office of Alan J. Pransky

20 Eastbrook Road

Re: responsibilities of a power of attorney

Don't worry -- Your house is not in jeopardy. Your husband's power of attorney does not mean that he

becomes personally liable for his brother's debts. It means that he can perform any

legal act which his brother could perform, i.e., he "stands in the shoes" of his

brother, but his brother remains responsible for any liability associated with

those acts.

You should have the power of attorney document reviewed by an attorney to ascertain whether

it is durable. If it is durable, that means that it remains in effect even if his brother becomes

legally incompetent due to his illness and your husband can continue to manage his affairs without

the necessity of a guardianship. If it NOT durable and his brother is incompetent, a guardianship

may be necessary.

Feel free to contact me at [email protected] or 401-885-7200 if I can be

of further assistance, as I am admitted to practice in Massachusetts and

Rhode Island.

Patricia Joyce

Law Office of Patricia M. Joyce

Suite 25, 1050 Main Street

Re: responsibilities of a power of attorney

A Power of Attorney, by itself, will not cause you to incur any liabilities for the debts of your husband's brother. The power of attorney should be read carefully, and if it is like most standard documents, it simply permits your husband to transact business in his brother's name.

Your husband may be responsible for his brother's debts if the power of attorney was worded to provide for his taking responsibility (which would be very unusual, but possible), or if your husband co-signed for debts incurred by his brother.

You can take all of the documents to an attorney in your area, and spend a half hour going over the situation. You can likely do this with a minimum charge, certainly less than $100 if you ask for an introductory session of just a half hour. The peace of mind will make this the best money you have spent. Put your mind at ease, and have an attorney look at the documents and give you a professional opinion. If you are on the hook, he or she can tell you what you need to do to eliminate your personal liability, if that is possible.

Thomas Workman

Law Offices of Thomas Workman

41 Harrison Street, Taunton, MA