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HOUSE DOCKET, NO. 364 FILED ON: 1/12/2023
HOUSE . . . . . . . . . . . . . . . No. 1523
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 Gentile13th Middlesex1/12/2023 1 of 44
HOUSE DOCKET, NO. 364 FILED ON: 1/12/2023
HOUSE . . . . . . . . . . . . . . . No. 1523
By Representative Gentile of Sudbury, a petition (accompanied by bill, House, No. 1523) of
Carmine Lawrence Gentile for legislation to establish the Uniform Power of Attorney act. The
Judiciary.
[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 1598 OF 2021-2022.]
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
_______________
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
2following 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
6clearly appears otherwise, have the following meanings:-
7 “Agent”, a person granted authority to act for a principal under a power of
8attorney, whether denominated an agent, attorney-in-fact, or otherwise. The term includes an
9original agent, coagent, successor agent, and a person to which an agent’s authority is delegated. 2 of 44
10 “Benefits from governmental programs or civil or military service”, any benefit, program
11or assistance provided under a statute or regulation including Social Security, Medicare, and
12Medicaid.
13 “Durable,” with respect to a power of attorney, means not terminated by the
14principal’s incapacity.
15 “Electronic”, relating to technology having electrical, digital, magnetic, wireless,
16optical, electromagnetic or similar capabilities.
17 “Good faith”, honesty in fact.
18 “Incapacity”, inability of an individual to manage property or business affairs
19because the individual:
20 (i) has an impairment in the ability to receive and evaluate information or
21make 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,
27limited liability company, association, joint venture, public corporation, government or
28governmental subdivision, agency, or instrumentality or any other legal or commercial entity. 3 of 44
29 “Power of attorney”, a writing or other record that grants authority to an agent to
30act 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
32a property interest subject to a power of appointment, means power exercisable at the time in
33question to vest absolute ownership in the principal individually, the principal’s estate, the
34principal’s creditors, or the creditors of the principal’s estate. The term includes a power of
35appointment not exercisable until the occurrence of a specified event, the satisfaction of an
36ascertainable standard, or the passage of a specified period only after the occurrence of the
37specified event, the satisfaction of the ascertainable standard, or the passage of the specified
38period. 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
41personal, 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
43an 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
45individual to provide retirement benefits or deferred compensation of which the principal is a
46participant, beneficiary or owner, including a plan or account under the following sections of the
47Internal Revenue Code:
48 (1) an individual retirement account under Internal Revenue Code Section
49408, 26 U.S.C. Section 408; 4 of 44
50 (2) a Roth individual retirement account under Internal Revenue Code
51Section 408A, 26 U.S.C. Section 408A;
52 (3) a deemed individual retirement account under Internal Revenue Code
53Section 408(q), 26 U.S.C. Section 408(q);
54 (4) an annuity or mutual fund custodial account under Internal Revenue
55Code Section 403(b), 26 U.S.C. Section 403(b);
56 (5) a pension, profit-sharing, stock bonus, or other retirement plan
57qualified 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
59457(b); and
60 (7) a nonqualified deferred compensation plan under Internal Revenue
61Code 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,
65symbol, or process.
66 “State”, a state of the United States, the District of Columbia, Puerto Rico, the
67United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of
68the United States. 5 of 44
69 “Stocks and bonds”, stocks, bonds, mutual funds and all other types of securities
70and financial instruments, whether held directly, indirectly or in any other manner. The term
71does 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,
75including 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
78with respect to an entity; and
79 (iv) a power created on a form prescribed by a government or governmental
80subdivision, agency or instrumentality for a governmental purpose.
81
82 Section 3. A power of attorney created under this chapter is durable unless it expressly
83provides 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
86conscious presence by another individual directed by the principal to sign the principal’s name
87on the power of attorney. A signature on a power of attorney is presumed genuine if the principal 6 of 44
88acknowledges the signature before a notary public or other individual authorized by law to take
89acknowledgments.
90 Section 5. (a) A power of attorney executed in the commonwealth on or after June 30,
912022 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
93its 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
95commonwealth 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
97the power of attorney pursuant to section 6; or
98 (2) the requirements for a military power of attorney pursuant to 10
99U.S.C. Section 1044b.
100 (d) Except as otherwise provided by a general or special law other than this
101chapter, a photocopy or electronically transmitted copy of an original power of attorney has the
102same effect as the original.
103
104 Section 6. The meaning and effect of a power of attorney is determined by the law of the
105jurisdiction indicated in the power of attorney and, in the absence of an indication of jurisdiction,
106by the law of the jurisdiction in which the power of attorney was executed.
107 7 of 44
108 Section 7. (a) In a power of attorney, a principal may nominate a conservator or guardian
109of the principal’s estate or guardian of the principal’s person for consideration by the court if
110protective proceedings for the principal’s estate or person are begun after the principal executes
111the power of attorney. Except for good cause shown or disqualification, the court shall make its
112appointment in accordance with the principal's most recent nomination.
113 (b) If, after a principal executes a power of attorney, a court appoints a
114conservator or guardian of the principal’s estate or other fiduciary charged with the management
115of some or all of the principal's property, the agent is accountable to the fiduciary as well as to
116the principal. The power of attorney is not terminated and the agent’s authority continues unless
117limited, suspended, or terminated by the court.
118
119 Section 8. (a) A power of attorney is effective when executed unless the principal
120provides in the power of attorney that it becomes effective at a future date or upon the
121occurrence of a future event or contingency.
122 (b) If a power of attorney becomes effective upon the occurrence of a future
123event or contingency, the principal, in the power of attorney, may authorize one or more persons
124to 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
126the principal has not authorized a person to determine whether the principal is incapacitated, or
127the person authorized is unable or unwilling to make the determination, the power of attorney
128becomes effective upon a determination in a writing or other record by: 8 of 44
129 (1) a physician or licensed psychologist that the principal is incapacitated
130within 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
132that 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
135that the principal is incapacitated may act as the principal’s personal representative pursuant to
136the Health Insurance Portability and Accountability Act, Sections 1171 through 1179 of the
137Social Security Act, 42 U.S.C. Section 1320d and applicable regulations, to obtain access to the
138principal’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
143durable;
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 9 of 44
147 (6) the principal revokes the agent’s authority or the agent dies, becomes
148incapacitated, or resigns, and the power of attorney does not provide for another agent to act
149under 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
154marriage to the principal or their legal separation, unless the power of attorney otherwise
155provides; or
156 (4) the power of attorney terminates.
157 (c) Unless the power of attorney otherwise provides, an agent’s authority is
158exercisable until the authority terminates under subsection (b), notwithstanding a lapse of time
159since the execution of the power of attorney.
160 (d) Termination of an agent’s authority or of a power of attorney is not effective
161as to the agent or another person that, without actual knowledge of the termination, acts in good
162faith under the power of attorney. An act so performed, unless otherwise invalid or
163unenforceable, 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
165revoke or terminate the power of attorney as to an agent or other person that, without actual
166knowledge of the incapacity, acts in good faith under the power of attorney. An act so 10 of 44
167performed, unless otherwise invalid or unenforceable, binds the principal and the principal’s
168successors in interest.
169 (f) The execution of a power of attorney does not revoke a power of attorney
170previously executed by the principal unless the subsequent power of attorney provides that the
171previous 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
174the 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
176resigns, dies, becomes incapacitated, is not qualified to serve or declines to serve. A principal
177may grant authority to designate 1 or more successor agents to an agent or other person
178designated by name, office, or function. Unless the power of attorney otherwise provides, a
179successor 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
182incapacitated, 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
184agent that does not participate in or conceal a breach of fiduciary duty committed by another
185agent, 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
187fiduciary duty by another agent shall notify the principal and, if the principal is incapacitated, 11 of 44
188take any action reasonably appropriate in the circumstances to safeguard the principal’s best
189interest. An agent that fails to notify the principal or take action as required by this subsection is
190liable for the reasonably foreseeable damages that could have been avoided if the agent had
191notified the principal or taken such action.
192
193 Section 11. Unless the power of attorney otherwise provides, an agent is entitled to
194reimbursement of expenses reasonably incurred on behalf of the principal and to compensation
195that is reasonable under the circumstances.
196
197 Section 12. Except as otherwise provided in the power of attorney, a person accepts
198appointment as an agent under a power of attorney by exercising authority or performing duties
199as an agent or by any other assertion or conduct indicating acceptance.
200
201 Section 13. (a) Notwithstanding provisions in the power of attorney, an agent that has
202accepted appointment shall:
203 (1) act in accordance with the principal’s reasonable expectations to the
204extent actually known by the agent and, otherwise, in the principal’s best interest;
205 (2) act in good faith; and
206 (3) act only within the scope of authority granted in the power of attorney. 12 of 44
207 (b) Except as otherwise provided in the power of attorney, an agent that has
208accepted appointment shall:
209 (1) act loyally for the principal’s benefit;
210 (2) act so as not to create a conflict of interest that impairs the agent’s
211ability to act impartially in the principal’s best interest;
212 (3) act with the care, competence, and diligence ordinarily exercised by
213agents in similar circumstances;
214 (4) keep a record of all receipts, disbursements, and transactions made on
215behalf of the principal;
216 (5) cooperate with a person that has authority to make health-care
217decisions for the principal to carry out the principal’s reasonable expectations to the extent
218actually known by the agent and, otherwise, act in the principal’s best interest; and
219 (6) attempt to preserve the principal’s estate plan, to the extent actually
220known by the agent, if preserving the plan is consistent with the principal’s best interest based on
221all relevant factors, including:
222 (A) the value and nature of the principal’s property;
223 (B) the principal’s foreseeable obligations and need for
224maintenance;
225 (C) minimization of taxes, including income, estate, inheritance,
226generation-skipping transfer, and gift taxes; and 13 of 44
227 (D) eligibility for a benefit, a program, or assistance under a
228statute or regulation.
229 (c) An agent that acts in good faith is not liable to any beneficiary of the
230principal’s estate plan for failure to preserve the plan.
231 (d) An agent that acts with care, competence, and diligence for the best interest of
232the principal is not liable solely because the agent also benefits from the act or has an individual
233or conflicting interest in relation to the property or affairs of the principal.
234 (e) If an agent is selected by the principal because of special skills or expertise
235possessed by the agent or in reliance on the agent’s representation that the agent has special skills
236or expertise, the special skills or expertise must be considered in determining whether the agent
237has acted with care, competence and diligence under the circumstances.
238 (f) Absent a breach of duty to the principal, an agent is not liable if the value of
239the principal’s property declines.
240 (g) An agent that exercises authority to delegate to another person the authority
241granted by the principal or that engages another person on behalf of the principal is not liable for
242an act, error of judgment or default of that person if the agent exercises care, competence, and
243diligence in selecting and monitoring the person.
244 (h) Except as otherwise provided in the power of attorney, an agent is not
245required to disclose receipts, disbursements, or transactions conducted on behalf of the principal
246unless ordered by a court or requested by the principal, a guardian, a conservator, another
247fiduciary acting for the principal, a governmental agency having authority to protect the welfare 14 of 44
248of the principal or, upon the death of the principal, by the personal representative or successor in
249interest of the principal’s estate. If so requested, within 30 days the agent shall comply with the
250request or provide a writing or other record substantiating why additional time is needed and
251shall comply with the request within an additional 30 days.
252
253 Section 14. A provision in a power of attorney relieving an agent of liability for breach of
254duty is binding on the principal and the principal’s successors in interest except to the extent the
255provision:
256 (1) relieves the agent of liability for breach of duty committed dishonestly, with
257an improper motive, or with reckless indifference to the purposes of the power of attorney or the
258best interest of the principal; or
259 (2) was inserted as a result of an abuse of a confidential or fiduciary relationship
260with the principal.
261
262 Section 15. (a) The following persons may petition a court to construe a power of
263attorney or review the agent’s conduct, and grant appropriate relief:
264 (1) the principal or the agent;
265 (2) a guardian, conservator, or other fiduciary acting for the principal;
266 (3) a person authorized to make health-care decisions for the principal;
267 (4) the principal’s spouse, parent, or descendant; 15 of 44
268 (5) an individual who would qualify as a presumptive heir of the
269principal;
270 (6) a person named as a beneficiary to receive any property, benefit, or
271contractual right on the principal’s death or as a beneficiary of a trust created by or for the
272principal that has a financial interest in the principal’s estate;
273 (7) a governmental agency having regulatory authority to protect the
274welfare of the principal;
275 (8) the principal’s caregiver or another person that demonstrates sufficient
276interest in the principal’s welfare; and
277 (9) a person asked to accept the power of attorney.
278 (b) Upon motion by the principal, the court shall dismiss a petition filed under
279this section, unless the court finds that the principal lacks capacity to revoke the agent’s authority
280or the power of attorney.
281
282 Section 16. An agent that violates this chapter is liable to the principal or the principal’s
283successors in interest for the amount required to:
284 (i) restore the value of the principal’s property to what it would have been had the
285violation not occurred; and
286 (ii) reimburse the principal or the principal’s successors in interest for the
287attorney’s fees and costs paid on the agent’s behalf. 16 of 44
288
289 Section 17. Unless the power of attorney provides a different method for an agent’s
290resignation, an agent may resign by giving notice to the principal and, if the principal is
291incapacitated:
292 (i) to the conservator or guardian, if one has been appointed for the principal, and
293a coagent or successor agent; or
294 (ii) if there is no person described in clause (1), to:
295 (A) the principal’s caregiver;
296 (B) another person reasonably believed by the agent to have sufficient
297interest in the principal’s welfare; or
298 (C) a governmental agency having authority to protect the welfare of the
299principal.
300
301 Section 18. (a) For purposes of this section and section 19, “acknowledged” means
302purportedly verified before a notary public or other individual authorized to take
303acknowledgements.
304 (b) A person that in good faith accepts an acknowledged power of attorney
305without actual knowledge that the signature is not genuine may rely upon the presumption under
306section 4 that the signature is genuine. 17 of 44
307 (c) A person that in good faith accepts an acknowledged power of attorney
308without actual knowledge that the power of attorney is void, invalid, or terminated, that the
309purported agent’s authority is void, invalid, or terminated, or that the agent is exceeding or
310improperly exercising the agent’s authority may rely upon the power of attorney as if the power
311of attorney were genuine, valid and still in effect, the agent’s authority were genuine, valid and
312still in effect, and the agent had not exceeded and had properly exercised the authority.
313 (d) A person that is asked to accept an acknowledged power of attorney may
314request, and rely upon, without further investigation:
315 (1) an agent’s certification under penalty of perjury of any factual matter
316concerning the principal, agent, or power of attorney;
317 (2) an English translation of the power of attorney if the power of attorney
318contains, in whole or in part, language other than English; and
319 (3) an opinion of counsel as to any matter of law concerning the power of
320attorney if the person making the request provides in a writing or other record the reason for the
321request.
322 (e) An English translation or an opinion of counsel requested under this section
323must be provided at the principal’s expense unless the request is made more than seven business
324days after the power of attorney is presented for acceptance.
325 (f) For purposes of this section and section 19, a person that conducts activities
326through employees is without actual knowledge of a fact relating to a power of attorney, a 18 of 44
327principal, or an agent if the employee conducting the transaction involving the power of attorney
328is without actual knowledge of the fact.
329
330 Section 19. (a) Except as otherwise provided in subsection (b):
331 (1) a person shall either accept an acknowledged power of attorney or
332request a certification, a translation, or an opinion of counsel under section 18 no later than 7
333business days after presentation of the power of attorney for acceptance;
334 (2) if a person requests a certification, a translation, or an opinion of
335counsel under section 18, the person shall accept the power of attorney no later than 5 business
336days after receipt of the certification, translation, or opinion of counsel; and
337 (3) a person may not require an additional or different form of power of
338attorney for authority granted in the power of attorney presented.
339 (b) A person is not required to accept an acknowledged power of attorney if:
340 (1) the person is not otherwise required to engage in a transaction with the
341principal in the same circumstances;
342 (2) engaging in a transaction with the agent or the principal in the same
343circumstances would be inconsistent with federal law;
344 (3) the person has actual knowledge of the termination of the agent’s
345authority or of the power of attorney before exercise of the power; 19 of 44
346 (4) a request for a certification, a translation, or an opinion of counsel
347under section 18 is refused;
348 (5) the person in good faith believes that the power is not valid or that the
349agent does not have the authority to perform the act requested, whether or not a certification, a
350translation, or an opinion of counsel under section 18 has been requested or provided; or
351 (6) the person makes, or has actual knowledge that another person has
352made, a report to the department of mental health or the executive office of elder affairs stating a
353good faith belief that the principal may be subject to physical or financial abuse, neglect,
354exploitation, or abandonment by the agent or a person acting for or with the agent.
355 (c) A person that refuses in violation of this section to accept an acknowledged
356power of attorney is subject to:
357 (1) a court order mandating acceptance of the power of attorney; and
358 (2) liability for reasonable attorney’s fees and costs incurred in any action
359or proceeding that confirms the validity of the power of attorney or mandates acceptance of the
360power of attorney.
361
362 Section 20. Unless displaced by a provision of this chapter, the principles of law and
363equity supplement this chapter.
364 20 of 44
365 Section 21. This chapter does not supersede any other law applicable to financial
366institutions or other entities, and the other law controls if inconsistent with this chapter.
367
368 Section 22. The remedies under this chapter are not exclusive and do not abrogate any
369right or remedy under the laws of the commonwealth other than this chapter.
370
371 Section 23. (a) An agent under a power of attorney may do the following on behalf of the
372principal or with the principal’s property only if the power of attorney expressly grants the agent
373the authority and exercise of the authority is not otherwise prohibited by another agreement or
374instrument to which the authority or property is subject:
375 (1) create, amend, revoke, or terminate an inter vivos trust;
376 (2) make a gift;
377 (3) create or change rights of survivorship;
378 (4) create or change a beneficiary designation;
379 (5) delegate authority granted under the power of attorney;
380 (6) waive the principal’s right to be a beneficiary of a joint and survivor
381annuity, including a survivor benefit under a retirement plan;
382 (7) exercise fiduciary powers that the principal has authority to delegate; 21 of 44
383 (8) exercise authority over the content of electronic communications, as
384defined in 18 U.S.C. Section 2510(12) sent or received by the principal; or
385 (9) disclaim property, including a power of appointment.
386 (b) Notwithstanding a grant of authority to do an act described in subsection (a),
387unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse, or
388descendant of the principal, may not exercise authority under a power of attorney to create in the
389agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the
390principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer,
391or otherwise.
392 (c) Subject to subsections (a), (b), (d), and (e), if a power of attorney grants to an
393agent authority to do all acts that a principal could do, the agent has the general authority
394described in Sections 26 through 38.
395 (d) Unless the power of attorney otherwise provides, a grant of authority to make
396a gift is subject to Section 39.
397 (e) Subject to subsections (a), (b), and (d), if the subjects over which authority is
398granted in a power of attorney are similar or overlap, the broadest authority controls.
399 (f) Authority granted in a power of attorney is exercisable with respect to property
400that the principal has when the power of attorney is executed or acquires later, whether or not the
401property is located in this state and whether or not the authority is exercised or the power of
402attorney is executed in this state. 22 of 44
403 (g) An act performed by an agent pursuant to a power of attorney has the same
404effect and inures to the benefit of and binds the principal and the principal’s successors in
405interest as if the principal had performed the act.
406
407 Section 24. (a) An agent has authority described in this chapter if the power of attorney
408refers to general authority with respect to the descriptive term for the subjects stated in Sections
40926 to 39, inclusive, or cites the section in which the authority is described.
410 (b) A reference in a power of attorney to general authority with respect to the
411descriptive term for a subject in Sections 26 to 39, inclusive, or a citation to a section of Sections
41226 to 39, inclusive, incorporates the entire section as if it were set out in full in the power of
413attorney.
414 (c) A principal may modify authority incorporated by reference.
415
416 Section 25. Except as otherwise provided in the power of attorney, by executing a power
417of attorney that incorporates by reference a subject described in Sections 26 to 39, inclusive, or
418that grants to an agent authority to do all acts that a principal could do pursuant to subsection (c)
419of Section 15, a principal authorizes the agent, with respect to that subject, to:
420 (i) demand, receive and obtain by litigation or otherwise, money or another thing
421of value to which the principal is, may become, or claims to be entitled and conserve, invest,
422disburse or use anything so received or obtained for the purposes intended; 23 of 44
423 (ii) contract in any manner with any person, on terms agreeable to the agent, to
424accomplish a purpose of a transaction and perform, rescind, cancel, terminate, reform, restate,
425release or modify the contract or another contract made by or on behalf of the principal;
426 (iii) execute, acknowledge, seal, deliver, file or record any instrument or
427communication the agent considers desirable to accomplish a purpose of a transaction, including
428creating at any time a schedule listing some or all of the principal’s property and attaching it to
429the power of attorney;
430 (iv) initiate, participate in, submit to alternative dispute resolution, settle, oppose
431or propose or accept a compromise with respect to a claim existing in favor of or against the
432principal or intervene in litigation relating to the claim;
433 (v) seek on the principal’s behalf the assistance of a court or other governmental
434agency to carry out an act authorized in the power of attorney;
435 (vi) engage, compensate, and discharge an attorney, accountant, discretionary
436investment manager, expert witness or other advisor;
437 (vii) prepare, execute, and file a record, report or other document to safeguard or
438promote the principal’s interest under a statute or regulation;
439 (viii) communicate with any representative or employee of a government or
440governmental subdivision, agency or instrumentality, on behalf of the principal;
441 (ix) access communications intended for, and communicate on behalf of the
442principal, whether by mail, electronic transmission, telephone or other means; and 24 of 44
443 (x) do any lawful act with respect to the subject and all property related to the
444subject.
445
446 Section 26. Unless the power of attorney otherwise provides, language in a power of
447attorney granting general authority with respect to real property authorizes the agent to:
448 (i) demand, buy, lease, receive, accept as a gift or as security for an extension of
449credit or otherwise acquire or reject an interest in real property or a right incident to real
450property;
451 (ii) sell; exchange; convey with or without covenants, representations or
452warranties; quitclaim; release; surrender; retain title for security; encumber; partition; consent to
453partitioning; subject to an easement or covenant; subdivide; apply for zoning or other
454governmental permits; plat or consent to platting; develop; grant an option concerning; lease;
455sublease; contribute to an entity in exchange for an interest in that entity; or otherwise grant or
456dispose of an interest in real property or a right incident to real property;
457 (iii) pledge or mortgage an interest in real property or right incident to real
458property as security to borrow money or pay, renew or extend the time of payment of a debt of
459the principal or a debt guaranteed by the principal;
460 (iv) release, assign, satisfy or enforce by litigation or otherwise a mortgage, deed
461of trust, conditional sale contract, encumbrance, lien or other claim to real property which exists
462or is asserted; 25 of 44
463 (v) manage or conserve an interest in real property or a right incident to real
464property owned or claimed to be owned by the principal, including:
465 (A) insuring against liability or casualty or other loss;
466 (B) obtaining or regaining possession of or protecting the interest or right
467by litigation or otherwise;
468 (C) paying, assessing, compromising, or contesting taxes or assessments
469or applying for and receiving refunds in connection with them; and
470 (D) purchasing supplies, hiring assistance or labor, and making repairs or
471alterations to the real property;
472 (vi) use, develop, alter, replace, remove, erect or install structures or other
473improvements upon real property in or incident to which the principal has, or claims to have, an
474interest or right;
475 (vii) participate in a reorganization with respect to real property or an entity that
476owns an interest in or right incident to real property and receive, and hold, and act with respect to
477stocks and bonds or other property received in a plan of reorganization, including:
478 (A) selling or otherwise disposing of them;
479 (B) exercising or selling an option, right of conversion or similar right
480with respect to them; and
481 (C) exercising any voting rights in person or by proxy; 26 of 44
482 (viii) change the form of title of an interest in or right incident to real property;
483and
484 (ix) dedicate to public use, with or without consideration, easements or other real
485property in which the principal has, or claims to have, an interest.
486
487 Section 27. Unless the power of attorney otherwise provides, language in a power of
488attorney granting general authority with respect to tangible personal property authorizes the
489agent to:
490 (i) demand, buy, receive, accept as a gift or as security for an extension of credit
491or otherwise acquire or reject ownership or possession of tangible personal property or an
492interest in tangible personal property;
493 (ii) sell; exchange; convey with or without covenants, representations or
494warranties; quitclaim; release; surrender; create a security interest in; grant options concerning;
495lease; sublease; or, otherwise dispose of tangible personal property or an interest in tangible
496personal property;
497 (iii) grant a security interest in tangible personal property or an interest in
498tangible personal property as security to borrow money or pay, renew or extend the time of
499payment of a debt of the principal or a debt guaranteed by the principal;
500 (iv) release, assign, satisfy or enforce by litigation or otherwise, a security
501interest, lien or other claim on behalf of the principal, with respect to tangible personal property
502or an interest in tangible personal property; 27 of 44
503 (v) manage or conserve tangible personal property or an interest in tangible
504personal property on behalf of the principal, including:
505 (A) insuring against liability or casualty or other loss;
506 (B) obtaining or regaining possession of or protecting the property or
507interest, by litigation or otherwise;
508 (C) paying, assessing, compromising or contesting taxes or assessments
509or applying for and receiving refunds in connection with taxes or assessments;
510 (D) moving the property from place to place;
511 (E) storing the property for hire or on a gratuitous bailment; and
512 (F) using and making repairs, alterations or improvements to the property;
513and
514 (vi) change the form of title of an interest in tangible personal property.
515
516 Section 28. Unless the power of attorney otherwise provides, language in a power of
517attorney granting general authority with respect to stocks and bonds authorizes the agent to:
518 (i) buy, sell and exchange stocks and bonds;
519 (ii) establish, continue, modify or terminate an account with respect to stocks and
520bonds; 28 of 44
521 (iii) pledge stocks and bonds as security to borrow, pay, renew or extend the time
522of payment of a debt of the principal;
523 (iv) receive certificates and other evidences of ownership with respect to stocks
524and bonds; and
525 (v) exercise voting rights with respect to stocks and bonds in person or by proxy,
526enter into voting trusts and consent to limitations on the right to vote.
527
528 Section 29. Unless the power of attorney otherwise provides, language in a power of
529attorney granting general authority with respect to commodities and options authorizes the agent
530to:
531 (i) buy, sell, exchange, assign, settle and exercise commodity futures contracts
532and call or put options on stocks or stock indexes traded on a regulated option exchange; and
533 (ii) establish, continue, modify and terminate option accounts.
534
535 Section 30. Unless the power of attorney otherwise provides, language in a power of
536attorney granting general authority with respect to banks and other financial institutions
537authorizes the agent to:
538 (i) continue, modify and terminate an account or other banking arrangement
539made by or on behalf of the principal; 29 of 44
540 (ii) establish, modify and terminate an account or other banking arrangement
541with a bank, trust company, savings and loan association, credit union, thrift company, brokerage
542firm or other financial institution selected by the agent;
543 (iii) contract for services available from a financial institution, including renting a
544safe deposit box or space in a vault;
545 (iv) withdraw, by check, order, electronic funds transfer or otherwise, money or
546property of the principal deposited with or left in the custody of a financial institution;
547 (v) receive statements of account, vouchers, notices and similar documents from
548a financial institution and act with respect to them;
549 (vi) enter a safe deposit box or vault and withdraw or add to the contents;
550 (vii) borrow money and pledge as security personal property of the principal
551necessary to borrow money or pay, renew or extend the time of payment of a debt of the
552principal or a debt guaranteed by the principal;
553 (viii) make, assign, draw, endorse, discount, guarantee and negotiate promissory
554notes, checks, drafts and other negotiable or nonnegotiable paper of the principal or payable to
555the principal or the principal’s order, transfer money, receive the cash or other proceeds of those
556transactions and accept a draft drawn by a person upon the principal and pay it when due;
557 (ix) receive for the principal and act upon a sight draft, warehouse receipt or
558other document of title whether tangible or electronic, or other negotiable or nonnegotiable
559instrument; 30 of 44
560 (x) apply for, receive, and use letters of credit, credit and debit cards, electronic
561transaction authorizations and traveler’s checks from a financial institution and give an
562indemnity or other agreement in connection with letters of credit; and
563 (xi) consent to an extension of the time of payment with respect to commercial
564paper or a financial transaction with a financial institution.
565
566 Section 31. Subject to the terms of a document or an agreement governing an entity or an
567entity ownership interest, and unless the power of attorney otherwise provides, language in a
568power of attorney granting general authority with respect to operation of an entity or business
569authorizes the agent to:
570 (i) operate, buy, sell, enlarge, reduce or terminate an ownership interest;
571 (ii) perform a duty or discharge a liability and exercise in person or by proxy a
572right, power, privilege or option that the principal has, may have, or claims to have;
573 (iii) enforce the terms of an ownership agreement;
574 (iv) initiate, participate in, submit to alternative dispute resolution, settle, oppose
575or propose or accept a compromise with respect to litigation to which the principal is a party
576because of an ownership interest;
577 (v) exercise in person or by proxy, or enforce by litigation or otherwise, a right,
578power, privilege or option the principal has or claims to have as the holder of stocks and bonds; 31 of 44
579 (vi) initiate, participate in, submit to alternative dispute resolution, settle, oppose,
580or propose or accept a compromise with respect to litigation to which the principal is a party
581concerning stocks and bonds;
582 (vii) with respect to an entity or business owned solely by the principal:
583 (A) continue, modify, renegotiate, extend and terminate a contract made
584by or on behalf of the principal with respect to the entity or business before execution of the
585power of attorney;
586 (B) determine:
587 (1) the location of its operation;
588 (2) the nature and extent of its business;
589 (3) the methods of manufacturing, selling, merchandising,
590financing, accounting and advertising employed in its operation;
591 (4) the amount and types of insurance carried; and
592 (5) the mode of engaging, compensating, and dealing with its
593employees and accountants, attorneys or other advisors;
594 (C) change the name or form of organization under which the entity or
595business is operated and enter into an ownership agreement with other persons to take over all or
596part of the operation of the entity or business; and 32 of 44
597 (D) demand and receive money due or claimed by the principal or on the
598principal’s behalf in the operation of the entity or business and control and disburse the money in
599the operation of the entity or business;
600 (viii) put additional capital into an entity or business in which the principal has an
601interest;
602 (ix) join in a plan of reorganization, consolidation, conversion, domestication, or
603merger of the entity or business;
604 (x) sell or liquidate all or part of an entity or business;
605 (xi) establish the value of an entity or business under a buy-out agreement to
606which the principal is a party;
607 (xii) prepare, sign, file and deliver reports, compilations of information, returns,
608or other papers with respect to an entity or business and make related payments; and
609 (xiii) pay, compromise, or contest taxes, assessments, fines or penalties and
610perform any other act to protect the principal from illegal or unnecessary taxation, assessments,
611fines or penalties, with respect to an entity or business, including attempts to recover, in any
612manner permitted by law, money paid before or after the execution of the power of attorney.
613
614 Section 32. Unless the power of attorney otherwise provides, language in a power of
615attorney granting general authority with respect to insurance and annuities authorizes the agent
616to: 33 of 44
617 (i) continue, pay the premium or make a contribution on, modify, exchange,
618rescind, release, or terminate a contract procured by or on behalf of the principal which insures
619or provides an annuity to either the principal or another person, whether or not the principal is a
620beneficiary under the contract;
621 (ii) procure new, different and additional contracts of insurance and annuities for
622the principal and the principal’s spouse, children and other dependents, and select the amount,
623type of insurance or annuity and mode of payment;
624 (iii) pay the premium or make a contribution on, modify, exchange, rescind,
625release or terminate a contract of insurance or annuity procured by the agent;
626 (iv) apply for and receive a loan secured by a contract of insurance or annuity;
627 (v) surrender and receive the cash surrender value on a contract of insurance or
628annuity;
629 (vi) exercise an election;
630 (vii) exercise investment powers available under a contract of insurance or
631annuity;
632 (viii) change the manner of paying premiums on a contract of insurance or
633annuity;
634 (ix) change or convert the type of insurance or annuity with respect to which the
635principal has or claims to have authority described in this section; 34 of 44
636 (x) apply for and procure a benefit or assistance under a statute or regulation to
637guarantee or pay premiums of a contract of insurance on the life of the principal;
638 (xi) collect, sell, assign, hypothecate, borrow against or pledge the interest of the
639principal in a contract of insurance or annuity;
640 (xii) select the form and timing of the payment of proceeds from a contract of
641insurance or annuity; and
642 (xiii) pay, from proceeds or otherwise, compromise or contest and apply for
643refunds in connection with, a tax or assessment levied by a taxing authority with respect to a
644contract of insurance or annuity or its proceeds or liability accruing by reason of the tax or
645assessment.
646 Section 33. (a) In this section, “estate, trust, or other beneficial interest” means a trust,
647probate estate, guardianship, conservatorship, escrow or custodianship or a fund from which the
648principal is, may become or claims to be, entitled to a share or payment.
649 (b) Unless the power of attorney otherwise provides, language in a power of attorney
650granting general authority with respect to estates, trusts, and other beneficial interests authorizes
651the agent to:
652 (1) accept, receive, receipt for, sell, assign, pledge or exchange a share in or
653payment from an estate, trust, or other beneficial interest;
654 (2) demand or obtain money or another thing of value to which the principal is,
655may become or claims to be, entitled by reason of an estate, trust or other beneficial interest, by
656litigation or otherwise; 35 of 44
657 (3) exercise for the benefit of the principal a presently exercisable general power
658of appointment held by the principal;
659 (4) initiate, participate in, submit to alternative dispute resolution, settle, oppose,
660or propose or accept a compromise with respect to litigation to ascertain the meaning, validity or
661effect of a deed, will, declaration of trust or other instrument or transaction affecting the interest
662of the principal;
663 (5) initiate, participate in, submit to alternative dispute resolution, settle, oppose,
664or propose or accept a compromise with respect to litigation to remove, substitute, or surcharge a
665fiduciary;
666 (6) conserve, invest, disburse or use anything received for an authorized purpose;
667 (7) transfer an interest of the principal in real property, stocks and bonds,
668accounts with financial institutions or securities intermediaries, insurance, annuities and other
669property to the trustee of a revocable trust created by the principal as settlor; and
670 (8) reject, renounce, disclaim, release, or consent to a reduction in or
671modification of a share in or payment from an estate, trust or other beneficial interest.
672
673 Section 34. Unless the power of attorney otherwise provides, language in a power of
674attorney granting general authority with respect to claims and litigation authorizes the agent to:
675 (i) assert and maintain before a court or administrative agency a claim, claim for
676relief, cause of action, counterclaim, offset, recoupment or defense, including an action to 36 of 44
677recover property or other thing of value, recover damages sustained by the principal, eliminate or
678modify tax liability, or seek an injunction, specific performance or other relief;
679 (ii) bring an action to determine adverse claims or intervene or otherwise
680participate in litigation;
681 (iii) seek an attachment, garnishment, order of arrest or other preliminary,
682provisional or intermediate relief and use an available procedure to effect or satisfy a judgment,
683order or decree;
684 (iv) make or accept a tender, offer of judgment or admission of facts, submit a
685controversy on an agreed statement of facts, consent to examination, and bind the principal in
686litigation;
687 (v) submit to alternative dispute resolution, settle and propose or accept a
688compromise;
689 (vi) waive the issuance and service of process upon the principal, accept service
690of process, appear for the principal, designate persons upon which process directed to the
691principal may be served, execute and file or deliver stipulations on the principal’s behalf, verify
692pleadings, seek appellate review, procure and give surety and indemnity bonds, contract and pay
693for the preparation and printing of records and briefs, receive, execute and file or deliver a
694consent, waiver, release, confession of judgment, satisfaction of judgment, notice, agreement or
695other instrument in connection with the prosecution, settlement or defense of a claim or
696litigation; 37 of 44
697 (vii) act for the principal with respect to bankruptcy or insolvency, whether
698voluntary or involuntary, concerning the principal or some other person, or with respect to a
699reorganization, receivership or application for the appointment of a receiver or trustee which
700affects an interest of the principal in property or other thing of value;
701 (viii) pay a judgment, award or order against the principal or a settlement made in
702connection with a claim or litigation; and
703 (ix) receive money or other thing of value paid in settlement of or as proceeds of
704a claim or litigation.
705
706 Section 35. (a) Unless the power of attorney otherwise provides, language in a power of
707attorney granting general authority with respect to personal and family maintenance authorizes
708the agent to:
709 (1) perform the acts necessary to maintain the customary standard of
710living of the principal, the principal’s spouse and the following individuals, whether living when
711the power of attorney is executed or later born:
712 (A) the principal’s children;
713 (B) other individuals legally entitled to be supported by the
714principal; and
715 (C) the individuals whom the principal has customarily supported
716or indicated the intent to support; 38 of 44
717 (2) make periodic payments of child support and other family maintenance
718required by a court or governmental agency or an agreement to which the principal is a party;
719 (3) provide living quarters for the individuals described in clause (1) by:
720 (A) purchase, lease or other contract; or
721 (B) paying the operating costs, including interest, amortization
722payments, repairs, improvements and taxes, for premises owned by the principal or occupied by
723those individuals;
724 (4) provide normal domestic help, usual vacations and travel expenses,
725and funds for shelter, clothing, food, appropriate education, including postsecondary and
726vocational education and other current living costs for the individuals described in clause (1);
727 (5) pay expenses for necessary health care and custodial care on behalf of
728the individuals described in clause (1);
729 (6) act as the principal’s personal representative pursuant to the Health
730Insurance Portability and Accountability Act, Sections 1171 through 1179 of the Social Security
731Act, 42 U.S.C. Section 1320d and applicable regulations, in making decisions related to the past,
732present, or future payment for the provision of health care consented to by the principal or
733anyone authorized under the law of this state to consent to health care on behalf of the principal;
734 (7) continue any provision made by the principal for automobiles or other
735means of transportation, including registering, licensing, insuring and replacing them, for the
736individuals described in clause (1); 39 of 44
737 (8) maintain credit and debit accounts for the convenience of the
738individuals described in clause (1) and open new accounts; and
739 (9) continue payments incidental to the membership or affiliation of the
740principal in a religious institution, club, society, order or other organization or to continue
741contributions to those organizations.
742 (b) Authority with respect to personal and family maintenance is neither
743dependent upon, nor limited by, authority that an agent may or may not have with respect to gifts
744under this chapter.
745
746 Section 36. Unless the power of attorney otherwise provides, language in a power of
747attorney granting general authority with respect to benefits from governmental programs or civil
748or military service authorizes the agent to:
749 (i) execute vouchers in the name of the principal for allowances and
750reimbursements payable by the United States or a foreign government or by a state or
751subdivision of a state to the principal, including allowances and reimbursements for
752transportation of the individuals described in clause (1) of subsection (a) of section 35, and for
753shipment of their household effects;
754 (ii) take possession and order the removal and shipment of property of the
755principal from a post, warehouse, depot, dock or other place of storage or safekeeping, either
756governmental or private and execute and deliver a release, voucher, receipt, bill of lading,
757shipping ticket, certificate or other instrument for that purpose; 40 of 44
758 (iii) enroll in, apply for, select, reject, change, amend or discontinue, on
759the principal’s behalf, a benefit or program;
760 (iv) prepare, file, and maintain a claim of the principal for a benefit or
761assistance, financial or otherwise, to which the principal may be entitled under a statute or
762regulation;
763 (v) initiate, participate in, submit to alternative dispute resolution, settle,
764oppose or propose or accept a compromise with respect to litigation concerning any benefit or
765assistance the principal may be entitled to receive under a statute or regulation; and
766 (vi) receive the financial proceeds of a claim described in clause (iv) and
767conserve, invest, disburse or use for a lawful purpose anything so received.
768
769 Section 37. Unless the power of attorney otherwise provides, language in a power of
770attorney granting general authority with respect to retirement plans authorizes the agent to:
771 (i) select the form and timing of payments under a retirement plan and
772withdraw benefits from a plan;
773 (ii) make a rollover, including a direct trustee-to-trustee rollover, of
774benefits from one retirement plan to another;
775 (iii) establish a retirement plan in the principal’s name;
776 (iv) make contributions to a retirement plan;
777 (v) exercise investment powers available under a retirement plan; and 41 of 44
778 (vi) borrow from, sell assets to, or purchase assets from a retirement plan.
779
780 Section 38. Unless the power of attorney otherwise provides, language in a power of
781attorney granting general authority with respect to taxes authorizes the agent to:
782 (i) prepare, sign, and file federal, state, local and foreign income, gift, payroll,
783property, Federal Insurance Contributions Act and other tax returns, claims for refunds, requests
784for extension of time, petitions regarding tax matters and any other tax-related documents,
785including receipts, offers, waivers, consents, including consents and agreements under Internal
786Revenue Code Section 2032A, 26 U.S.C. Section 2032A, closing agreements and any power of
787attorney required by the Internal Revenue Service or other taxing authority with respect to a tax
788year upon which the statute of limitations has not run and the following 25 tax years;
789 (ii) pay taxes due, collect refunds, post bonds, receive confidential information
790and contest deficiencies determined by the Internal Revenue Service or other taxing authority;
791 (iii) exercise any election available to the principal under federal, state, local or
792foreign tax law; and
793 (iv) act for the principal in all tax matters for all periods before the Internal
794Revenue Service, or other taxing authority.
795
796 Section 39. (a) In this section, a gift “for the benefit of” a person includes a gift to a trust,
797an account under the Uniform Transfers to Minors Act (1983/1986) and a tuition savings account 42 of 44
798or prepaid tuition plan as defined under Internal Revenue Code Section 529, 26 U.S.C. Section
799529.
800 (b) Unless the power of attorney otherwise provides, language in a power of
801attorney granting general authority with respect to gifts authorizes the agent only to:
802 (1) make outright to, or for the benefit of, a person, a gift of any of the
803principal’s property, including by the exercise of a presently exercisable general power of
804appointment held by the principal, in an amount per donee not to exceed the annual dollar limits
805of the federal gift tax exclusion under Internal Revenue Code Section 2503(b), 26 U.S.C. Section
8062503(b), without regard to whether the federal gift tax exclusion applies to the gift, or if the
807principal’s spouse agrees to consent to a split gift pursuant to Internal Revenue Code Section
8082513, 26 U.S.C. 2513, in an amount per donee not to exceed twice the annual federal gift tax
809exclusion limit; and
810 (2) consent, pursuant to Internal Revenue Code Section 2513, 26 U.S.C.
811Section 2513, to the splitting of a gift made by the principal’s spouse in an amount per donee not
812to exceed the aggregate annual gift tax exclusions for both spouses.
813 (c) An agent may make a gift of the principal’s property only as the agent
814determines is consistent with the principal’s objectives if actually known by the agent and, if
815unknown, as the agent determines is consistent with the principal’s best interest based on all
816relevant factors, including:
817 (1) the value and nature of the principal’s property;
818 (2) the principal’s foreseeable obligations and need for maintenance; 43 of 44
819 (3) minimization of taxes, including income, estate, inheritance,
820generation-skipping transfer and gift taxes;
821 (4) eligibility for a benefit, a program or assistance under a statute or
822regulation; and
823 (5) the principal’s personal history of making or joining in making gifts.
824 Section 32. This chapter modifies, limits, and supersedes the federal Electronic
825Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not
826modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize
827electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C.
828Section 7003(b).
829
830 SECTION 2. Except as otherwise provided in this act, on June 30, 2022:
831 (1) this act applies to a power of attorney created before, on, or after June 30,
8322022;
833 (2) this act applies to a judicial proceeding concerning a power of attorney
834commenced on or after June 30, 2022;
835 (3) this act applies to a judicial proceeding concerning a power of attorney
836commenced before June 30, 2022 unless the court finds that application of a provision of this act
837would substantially interfere with the effective conduct of the judicial proceeding or prejudice
838the rights of a party, in which case that provision does not apply and the superseded law applies;
839and 44 of 44
840 (4) an act done before June 30, 2022 is not affected by this act.
841
842 SECTION 3. Sections 5-501 to 5-507, inclusive, of chapter 190B of the General Laws are
843hereby repealed.
844
845 SECTION 4. This act takes effect June 30, 2022.