The life of a durable power of attorney is indefinite until the document is either revoked or the principal dies. Under the new Uniform Probate Code, the attorney-in-fact is protected if he acts in good faith until such time as he has knowledge of the revocation. Revocation can be by a writing ("I revoke my old power of attorney," signed XXX and notarized) or the creation of a new power of attorney.
I am not aware of any Massachusetts cases which hold that tearing up what might be an original power of attorney constitutes revocation, but it's possible that a judge might hold that if there was other evidence in support, like statements of intent made to witnesses.
There is no 5 year expiration to the Power of but i have heard of several client experiences with banks and other financial institutions where they will not accept powers of attorney that are older than 5 (or 6 or 7, etc.) years old. It's not "legal", and usually a telephone conversation with them will change their decision, but not always. So, in general, if I'm working with clients on reviewing and updating their documents, which we usually do every 5 years or 2o anyway, we typically do new Powers of Attorney to avoid that scenario.
Feel free to contact me directly if you would like to discuss this further.
Robin Gorenberg, Esq.
I would have a fresh DPOA drafted for your protection. While there is no expiration to DPOAs, if the principal ripped up the original with the intent to rip up the power of attorney given to you, the document should be treated as canceled.
You may think there's a perfectly good copy, and you have been forgiven, so all is well, but use of a POA you know to have been revoked is an act of fraud, and you may be held personally liable for any transaction done under it's auspices that the principal later comes to regret. That can also serve as ammunition to have you removed from other fiduciary roles for the principal, such as executor or trustee.
At this point, their may be some argument that there was no revocation. But because there is evidence that it was, you should do a new one for your own protection. If the principal refuses, take it as a warning about using the old copy you have.