Bill
S 1138
Massachusetts S.1138 clarifies that an agent under a durable power of attorney may create trusts for the principal, within probate code limits.
Note on documents
- The materials provided include two different S.1138 bills from different jurisdictions with the same bill number and the same short title. One is an Idaho budget/appropriation bill filed by the Idaho Senate Finance Committee; the other is a Massachusetts Judiciary bill that actually matches the title “An Act clarifying a right of a durable power of attorney.” The summary below covers both bills separately so readers can see which provision applies to which jurisdiction.
1) Massachusetts — “An Act clarifying a right of a durable power of attorney”
- Main purpose and intent
- To clarify that a durable power of attorney (attorney‑in‑fact) may create a trust on behalf of a principal (settlor) and to add statutory definitions to reflect that authority, subject to existing probate code provisions.
- Key provisions
- Adds a definition of “Durable power of attorney” to Chapter 203E (the Massachusetts trust/code chapter) by reference to the signing requirements found in section 5‑501 of chapter 190B.
- Adds a new definition of “Settlor’s agent” to include a person acting under a durable power of attorney who is expressly authorized to create a trust for the settlor, and includes court‑appointed persons who act to create a trust for the settlor.
- Amends sections 401 and 402 of chapter 203E to expressly permit trusts to be created “by the settlor or the settlor’s agent” (and similar phrasing), thereby recognizing agent‑created trusts as a statutory method of trust creation.
- Requires that an agent’s actions conform to sections 5‑501 to 5‑507 of chapter 190B (Massachusetts probate/estate code provisions governing powers of attorney).
- Who is affected
- Principals (settlor/agents) who use powers of attorney for estate planning; estate and elder‑law attorneys; trustees and beneficiaries; courts addressing disputes over authority to form trusts.
- Procedural/timeline notes
- Filed in the Massachusetts Senate (docketed No. 926). Sponsored/petitioned by Senator John F. Keenan and others; referred to the Judiciary Committee. Dates in the provided file range from January–April 2025.
Potential impacts and considerations
- Clarifies and broadens the statutory basis for an agent under a durable power of attorney to create trusts on behalf of a principal, reducing ambiguity in estate planning and administration.
- May increase reliance on attorneys‑in‑fact to execute planning transactions; raises issues about proof of authority, agent fiduciary duties, record‑keeping, and potential litigation when beneficiaries dispute agent actions.
2) Idaho — Senate Bill S 1138 (Finance Committee appropriation)
- Main purpose and intent
- To appropriate additional funds and authorize five additional full‑time equivalent (FTE) positions for the Idaho Department of Finance for FY2026 to strengthen examination and investigative capacity (including IT and forensic accounting support) and to purchase IT replacement items.
- Key provisions and dollar amounts
- Appropriates a total of $765,800 from the State Regulatory Fund for July 1, 2025 – June 30, 2026, allocated as:
- Personnel costs: $671,300
- Operating expenditures: $25,000
- Capital outlay (one‑time IT/hardware): $69,500
- Authorizes 5.00 additional FTE positions for the FY2026 period.
- Declares an emergency; effective date July 1, 2025.
- Fiscal detail (from fiscal note)
- FY2026 ongoing increase: $696,300; one‑time increase: $69,500.
- New positions include: Financial Institutions IT Examiner; Financial Institutions Examiner; two Financial Examiner Investigator 3 positions (SEC focus); and a Financial Examiner with forensic accounting specialty.
- Department of Finance FY2026 total budget shown as $11,998,400 (an increase of $962,100 or ~8.7% over FY2025 original appropriation per the attached tables).
- Who is affected
- Idaho Department of Finance staffing and operations; regulated financial institutions (increased examination/investigative resources); potentially consumers via strengthened regulatory oversight.
- Procedural/timeline notes
- Introduced March 26, 2025 (Senate Finance Committee). Hearing listed for April 22, 2025, 1:00–5:00 PM in room A‑2. Bill text and fiscal note identify urgency with an emergency clause and July 1, 2025 effective date.
Bottom line
- Massachusetts S.1138: a statutory clarification to expressly permit an agent under a durable power of attorney to create trusts for a settlor when so authorized and consistent with probate code requirements — an estate‑planning / fiduciary authority clarification.
- Idaho S.1138: a fiscal/appropriation bill authorizing $765,800 and five temporary FTE to expand the Department of Finance’s examination, investigative, and IT capacity for FY2026.
Compiled from official sources — confirm details with the bill’s official record.
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