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Power of Attorney in Massachusetts: Durable Wording, Notary, Recording and How to Get One
A Massachusetts power of attorney is durable only if its wording says so, and it needs a notary to be recorded for real estate. Here is what the Massachusetts probate code says and how to get one.
By naveen · Updated · How we research our guides
What to know
- A Massachusetts power of attorney is durable only if the writing contains words showing it should keep working after your parent's later disability or incapacity (M.G.L. c. 190B, § 5-501).
- The power of attorney sections, §§ 5-501 to 5-507, don't set witness or notary requirements or print a statutory form.
- To be recorded for selling or mortgaging real estate, it must be acknowledged before a notary or justice of the peace (c. 183, §§ 29, 30 and 32).
- Health care decisions need a separate document, a health care proxy under chapter 201D.
- Retirement Checklist turns your parent's situation into a short, ordered plan, so the power of attorney sits in the right place among everything else.
A power of attorney in Massachusetts is a writing in which your parent (the principal) names an "attorney in fact" to act for them, and it survives incapacity only if it contains durable wording. Under M.G.L. c. 190B, § 5-501, that wording can read "This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time." Part 5 of the probate code runs seven sections, §§ 5-501 to 5-507, so the document's own wording does the rest.
What is a durable power of attorney in Massachusetts?
It's a power of attorney that keeps working if your parent loses capacity. Durability isn't automatic in Massachusetts. Section 5-501 requires the durable wording above, the springing version "This power of attorney shall become effective upon the disability or incapacity of the principal," or "similar words showing the intent of the principal" that the authority continues despite later incapacity.
That wording matters because of § 5-502: acts done under a durable power of attorney while your parent is incapacitated "have the same effect" as if your parent "were competent and not disabled." Unless it states a time of termination, a durable power doesn't expire with the passage of time. Health care decisions go through a separate document, a Massachusetts health care proxy. For why families set one up early, see our guide to power of attorney for an elderly parent.
What does Massachusetts require for a power of attorney to be valid?
Massachusetts requires a writing, plus durable wording if it is to survive incapacity; Part 5 adds no witness or notary rule, though recording it for real estate needs a notary's acknowledgment.
| Step | What the statutes say | Why it matters |
|---|---|---|
| A writing | Your parent designates the attorney in fact "in writing" | Required (§ 5-501) |
| Durable wording | Words showing the authority continues despite later disability or incapacity | Without them, it isn't a durable power of attorney (§ 5-501) |
| Notary acknowledgment | Not listed in §§ 5-501 to 5-507 | Needed to record it for a real estate conveyance (c. 183, §§ 29, 32) |
| Witnesses | Not listed in §§ 5-501 to 5-507 | No witness rule in these sections |
A notary can't notarize for their own spouse, domestic partner, parent, guardian, child or sibling, "including in-law, step or half relatives" (c. 222, § 16), so the notary shouldn't be a close relative of your parent.
Is there an official Massachusetts power of attorney form?
Article V, Part 5 of chapter 190B doesn't print a statutory form, and it doesn't list powers that need special wording. What it does require is the durable language in § 5-501 if the power is meant to last through incapacity.
That leaves the scope of the agent's authority to the document itself: which accounts, property, benefits and transactions it covers, and any limits your parent wants. Because nothing in the statute fills in those details, it helps to know what an elder law attorney does before choosing a document.
When does it take effect, and when does it end?
Section 5-501 recognizes both a power that takes effect when signed and continues through incapacity, and a springing one that "shall become effective upon the disability or incapacity of the principal." Part 5 doesn't set a procedure for determining that incapacity has occurred.
It ends when your parent revokes it, when a stated time of termination arrives, or at your parent's death, though people who act in good faith without knowing of the death are protected (§ 5-504). Divorce also matters: under c. 190B, § 2-804, a divorce or annulment revokes a former spouse's nomination as "agent" in a governing instrument, which the code defines to include an instrument creating "a power of attorney," unless the document's express terms, a court order or a marital contract say otherwise. A judgment of separation that doesn't end the marriage doesn't trigger it.
If a court appoints a conservator or guardian of the estate for all of your parent's property, the agent "is accountable to the fiduciary as well as to the principal," and the fiduciary can revoke or amend the power of attorney (§ 5-503).
What does the agent have to do?
Sections 5-501 to 5-507 don't list duties or record-keeping rules for the agent. The accountability rule they contain is the one above: once a court appoints a conservator or similar fiduciary, the agent answers to that fiduciary too.
Since the statute is silent, a power of attorney can spell out what your parent expects, such as keeping records and regular reporting to a family member. Our guide to protecting a parent from scams covers the warning signs any agent should know.
Do banks have to accept a Massachusetts power of attorney?
Part 5 doesn't directly order a bank to accept one or set an acceptance deadline, but it lets the agent sue over an unreasonable refusal and protects a bank that relies on it in good faith:
- Refusal. Under § 5-506, the agent under a durable power of attorney "is authorized to prosecute legal action for damages in behalf of the principal in the event of an unreasonable refusal of a third party to honor the authority of a valid durable power of attorney."
- Reliance. Under § 5-507, "No third party acting in good faith reliance on a durable power of attorney shall be held liable for action taken in such reliance."
An agent can also sign an affidavit that they didn't know of any revocation, death or incapacity when they acted; under § 5-505, that affidavit is conclusive proof the power hadn't ended, for acts done in good faith reliance on it.
Does a Massachusetts power of attorney need to be recorded?
For real estate, yes. Under c. 183, § 32, "The law relative to the acknowledgment and recording of deeds shall apply to letters of attorney for the conveyance of real estate." A deed can't be recorded without a certificate of acknowledgment (§ 29), and within Massachusetts the acknowledgment is made before a justice of the peace or notary public (§ 30).
The registers of deeds' indexing standards list "Power of attorney – MGL c.183, s.32" among the documents that "must be acknowledged to be recorded."
How do you get a power of attorney for an elderly parent in Massachusetts?
Your parent signs a written power of attorney with durable wording while able, and acknowledges it before a notary if real estate may be involved. The steps:
- Talk with your parent about who they'd want acting for them, and who should succeed them.
- Choose a document that includes the durable wording from § 5-501 and spells out the powers your parent wants to grant.
- Decide whether it starts now or on incapacity, and if it springs, how incapacity will be shown.
- Your parent signs it, and acknowledges it before a notary who isn't a close relative, so it can be recorded if real estate is involved.
- Give the agent a copy and keep the original somewhere safe.
Timing is the constraint: your parent has to be able to sign. If that moment has passed, the family may need a court process instead, described in our Massachusetts guardianship guide.
How do you revoke a power of attorney in Massachusetts?
Part 5 doesn't prescribe a form for revoking a power of attorney, but a written revocation your parent signs is what puts other people on notice: a person other than the agent isn't treated as knowing of it unless the revocation is "in a writing executed by the principal" and received by that person, or, for real estate, recorded at the registry of deeds (§ 5-504).
So a signed, dated written revocation, delivered to the agent and every bank or office holding a copy, and recorded if the power was used for real estate, leaves a clear record. People who act in good faith without knowing of the revocation are protected.
How much does a power of attorney cost in Massachusetts?
No Massachusetts statute we read lists a fee for a notary's acknowledgment, so the cost depends on the notary and any attorney involved. The notary fee section, c. 262, § 41, lists fees for protesting and noting unpaid bills, checks and notes; it doesn't list a fee for an acknowledgment. The Massachusetts Trial Court Law Libraries summarize the Supreme Judicial Court's 2020 decision in Richardson v. The UPS Store: the section's $1.25 cap "applies only to a particular notarial act known as 'noting,'" and doesn't limit fees for other notarial acts. The Secretary of the Commonwealth's notary application has notaries confirm: "In no case may a notary public charge more than the statutory amount." Ask about any fee before the appointment.
The same application says a notary who works at a bank "may not decline to notarize a document solely because a person is not a client of that bank."
Frequently asked questions
Does a power of attorney need to be notarized in Massachusetts?
The power of attorney sections, M.G.L. c. 190B, §§ 5-501 to 5-507, don't list notarization as a requirement. But a power of attorney used to sell or mortgage real estate must be acknowledged before a notary or justice of the peace to be recorded (c. 183, §§ 29, 30, 32), so notarizing it keeps that option open.
Does a Massachusetts power of attorney need witnesses?
Sections 5-501 to 5-507 don't require witnesses. They require a writing and, for the power to survive incapacity, wording that shows your parent intended it to. Witnesses are required for a different document: a Massachusetts health care proxy must be signed in the presence of two adult witnesses under chapter 201D.
Where can I get a Massachusetts power of attorney form?
Chapter 190B doesn't print a statutory power of attorney form. Any document your parent uses needs to be in writing, and to be durable it must include wording like the examples in § 5-501. Because the statute doesn't define the powers, the document has to describe them; an attorney can draft one.
Can a Massachusetts power of attorney make medical decisions?
Health care decisions go through a health care proxy under M.G.L. chapter 201D. A health care agent's decisions take priority over those of "a person acting pursuant to a durable power of attorney," unless the proxy or a court order says otherwise. Our guide to the Massachusetts health care proxy explains how it works.
Can a power of attorney be notarized online in Massachusetts?
Chapter 222 lets a notary physically in Massachusetts notarize for a remotely located person using communication technology, with identity checks, a single real-time session and an audio-visual recording. The exclusions in § 28(c) cover wills and election records, not powers of attorney. Residential real estate closings have extra limits on remote notarization.
What happens if my parent can no longer sign?
Then they can't make a power of attorney, and the family may need a court-appointed guardian or conservator. If your parent already signed a durable power of attorney nominating one, the court follows the most recent nomination except for good cause or disqualification, and the petition must list the agent and attach a copy if available.
Getting started
A power of attorney is time-sensitive, because it needs your parent's signature while they can still give it, and in Massachusetts it needs the right durable wording and, for real estate, a notary. The plan this site builds asks four questions, including which state your parents live in, and puts the handful of steps that matter most for your family in order. It's free and takes about 90 seconds.
Related guides
Sources
- M.G.L. c. 190B, Article V, Part 5, Durable power of attorney: definition and durable wording (§ 5-501), effect during incapacity (§ 5-502), court-appointed fiduciaries (§ 5-503), revocation and notice (§ 5-504), affidavits (§ 5-505), refusals (§ 5-506) and third-party protection (§ 5-507).
- M.G.L. c. 190B, § 2-804: revocation of a former spouse's nomination as agent by divorce or annulment.
- M.G.L. c. 190B, § 1-201: the definition of governing instrument, which includes a power of attorney.
- M.G.L. c. 183, Alienation of land: acknowledgment and recording (§§ 29, 30, 32).
- Massachusetts Deed Indexing Standards: documents that must be acknowledged to be recorded.
- M.G.L. c. 222, Notaries public: who a notary can't notarize for (§ 16) and remote notarization (§ 28).
- M.G.L. c. 262, § 41: the notary fee section.
- Massachusetts Trial Court Law Libraries, Massachusetts law about notaries public: the fee cap's scope.
- Secretary of the Commonwealth, Notary public application: the statutory-amount rule and notaries who work at banks.
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