July 1st saw a quiet, but sweeping change in Massachusetts law.  It was the day the Uniform Probate Code began to take effect.  I say “began” because July 1st marked the first phase of implementation.  Phase two takes effect in 2011.

The Durable Power of Attorney statute used by so many for so long to make it possible for loved ones or friends to handle financial decisions in the event of disability was repealed.  While the biggest impact this year is on guardianship and conservatorship proceedings, this one tiny piece of the puzzle is having really big implications.

Usually when laws change they are amended.  This has the effect of “grandfathering” prior written documents that reference the specific statute.  For example, if you say, “I incorporate the powers listed in Chapter 201B” you’re covered no matter how many times that chapter is amended.  It’s still Chapter 201B.  In this instance though, rather than amend the statute it was repealed and replaced with something with a completely different reference.  Essentially, Chapter 201B no longer exists.  So, if your Durable Power of Attorney references it, well, put bluntly, it’s probably now useless.

The new Durable Power of Attorney statute is located at Chapter 190B, Section 5-501 through 5-507.  Despite this change possibly invalidating a lot of existing Durable Powers of Attorney documents, it does do some really good things.  The most important is that it prohibits people and businesses from refusing to honor them unless they have a darn good reason. It has always been good customer service for banks and financial institutions to honor Durable Powers of Attorney.  That doesn’t mean that they always did though.  Some institutions that will remain nameless had internal policies of not honoring them—EVER!

I recently had back surgery that had me in the MetroWest Medical Center - Framingham Union Hospital for several nights.  My last day and night I had a roommate.  She seemed a pleasant enough woman.  She had fallen and hit her head while living in her assisted living apartment.  Sounds like it went undetected until she was suffering nausea, vomiting and being unbalanced.

When she arrived in my room she was accompanied by two daughters.  Both stayed for a few minutes to make sure she was settled, showing her how to operate the television and her nurse’s call button. Then they were gone and the snoring ensued.

It was clear when nurses came in to talk with her that her competency was questionable at best.  To her credit, she knew where she was but not why.  She remembered living in the assisted living community, just not when she was last there.

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