Mass. General Laws c.190B § 5-505

Proof of continuance of durable and other powers of attorney by affidavit

This is an unofficial version of a Massachusetts General Law.

Section 5-505

As to acts undertaken in good faith reliance thereon, an affidavit executed by the attorney in fact under a power of attorney, durable or otherwise, stating that he did not have at the time of exercise of the power actual knowledge of the termination of the power by revocation or of the principal's death, disability, or incapacity is conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power of attorney requires execution and delivery of any instrument that is recordable, the affidavit when authenticated for record is likewise recordable. This section shall not affect any provision in a power of attorney for its termination by expiration of time or occurrence of an event other than express revocation or a change in the principal's capacity.

Comment

Affidavits protecting persons dealing with attorneys in fact extend the utility of powers of attorney and plainly should be available for use by all attorneys in fact. The matters stated in an affidavit that are strengthened by this section are limited to the revocation of a power by the principal's voluntary act, his death, or, in the case of non-durable power, by his incompetence. With one possible exception, other matters, including circumstances made relevant by the terms of the instrument to the commencement of the agency or to its termination by other circumstances, are not covered. The exception concerns the case of a power created to begin on “incapacity.” The affidavit of the agent in fact that all conditions necessary to the valid exercise of the power might be aided by the statute in relation to the fact of incapacity. An affidavit as to the existence or nonexistence of facts and circumstances not covered by this section nonetheless may be useful in establishing good faith reliance.

Massachusetts comment

G.L. c. 201B, § 5 differs from this section as follows:

• Line 5 - “principal's” deleted, “of the principal” inserted after “incapacity”
• Line 8 - “the” changed to “such”
• Line 10 - “does” changed to “shall”