Section 5-501
(a)
A durable power of attorney is a power of attorney by which a principal designates another his attorney in fact in writing and the writing contains the words ''This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time,'' or ''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 conferred shall be exercisable notwithstanding the principal's subsequent disability or incapacity, and, unless it states a time of termination, notwithstanding the lapse of time since the execution of the instrument.
(b)
References in this part to the disability or incapacity of the principal shall mean the mental illness or other disability of the principal recognized under the General Laws.
Comment
This section, derived from the first sentence of UPC 5-501 (1969) (1975), is a definitional section that supports use of the term “durable power of attorney” in the sections that follow. The second quoted expression was designed to emphasize that a durable power with postponed effectiveness is permitted. Some UPC critics have been bothered by the reference here to a later condition of “disability or incapacity,” a circumstance that may be difficult to ascertain if it can be established without a court order. The answer, of course, is that draftsmen of durable powers are not limited in their choice of words to describe the later time when the principal wishes the authority of the agent in fact to become operative. For example, a durable power might be framed to confer authority commencing when two or more named persons, possibly including the principal's lawyer, physician or spouse, concur that the principal has become incapable of managing his affairs in a sensible and efficient manner and deliver a signed statement to that effect to the attorney in fact.
In this and following sections, it is assumed that the principal is competent when the power of attorney is signed. If this is not the case, nothing in this Act is intended to alter the result that would be reached under general principles of law.
Massachusetts comment
G.L. c. 201B, § 1 does not contain words “lapse of time” or “unless it states a time of termination, notwithstanding the lapse of the time since the execution of the instrument”.