How to Get a Durable Power of Attorney in Michigan

What is a durable power of attorney?

A durable power of attorney refers to a legal document that designates an individual, known as an agent, to manage your financial and legal matters and make decisions in your best interest. What makes it "durable" is that the agent's authority and oversight continue if you (the principal) become ill, disabled, or mentally incompetent.

As a principal, you can authorize your agent to file your taxes, manage your investments, apply for government benefits, monitor your bank account, pay your bills, and more. Now, while a durable power of attorney can grant your agent the right to oversee your investments, real estate, business arrangements, and legal documents, it won't extend to your healthcare decisions.

If you're interested in including medical treatment in your arrangement, you will need a separate durable power of attorney for health care or healthcare advance directives to manage your medical care. 

Michigan laws do not require you to create a durable power of attorney. However, it's important to note that if you were to become incapacitated without one, your loved ones may need to file a petition for conservatorship to receive permission to manage your business affairs. These court proceedings are called probate court, and it can be a time-consuming and lengthy process for your loved ones to endure.

Features of a power of attorney

Michigan recognizes several different varieties of power of attorney (POA).

The following are a few of the most common ones you'll come across in the Mitten State.

• General power of attorney: Authorizes the agent to make wide-ranging legal and financial decisions.
• Limited (special) power of attorney: Allows the agent to act on behalf of the principal in a specific situation for a certain period of time. For example, if a principal is on vacation, they could let their agent sell their property in their absence.
• Durable power of attorney: Permits the agent to continue making legal and financial decisions if the principal is incapacitated.
• Springing power of attorney: Determines a specific date or event when the agent can begin acting on the principal's behalf. For instance, the principal might instruct the agent to take over if they become incapacitated.

Accidents and illnesses can happen out of the blue. You could end up in a coma after a car crash, develop dementia, or experience a stroke that impacts your ability to communicate. In these scenarios, having someone you trust to oversee your legal and financial decisions could be your saving grace.

That's why arranging a power of attorney is so important. It allows you to select a reliable and trustworthy person to carry out your wishes while you're still mentally competent, ensuring your personal matters are in good hands.

Requirements for a durable POA in Michigan

Michigan has several power of attorney requirements pertaining to the execution of the document, agent and principal eligibility, and specific powers.

Execution

Michigan law requires the principal and agent to both sign the power of attorney form in the presence of a notary public or two witnesses. Per Michigan's Uniform Power of Attorney Act (UPOAA), the agent must also accept their responsibilities by signing an "Acknowledgement of Agent's Duties" document. 

Agent and principal eligibility

In Michigan, the principal and agent must both be competent adults (at least 18 years old) and of sound mind when creating and signing the durable power of attorney.

When selecting an agent, the principal should select a trustworthy, reliable, and loyal person who has experience managing financial and legal matters. Ideally, this would be someone already familiar with the principal's finances and who understands their wishes. Oftentimes, a principal will give financial power to a close relative, trusted friend, accountant, or attorney.

Specific powers

The principal can choose to grant broad or limited powers to the agent. For example, they might allow the agent to oversee all aspects of their real estate or only permit them to manage and lease (not sell) the property. Or, they might want them in charge of only specific financial accounts.

The principal must also take special care when making gifting provisions on the attorney form. They should explicitly state who can make gifts, in what amount, and when.

How to create a Michigan durable power of attorney

Now that you understand the importance of a durable power of attorney, follow these steps to learn how to create your own in Michigan.

1. Determine the powers to grant

You must decide how little or how much legal and financial power you want to grant your agent. Consider what you're comfortable with them overseeing and what's off-limits. For example, maybe you want them to manage your investments and bank accounts, but you don't want them managing real estate. You'll need to explicitly state these preferences when you begin crafting your legal document.

As discussed, a durable power of attorney does not include medical oversight. If you'd like to designate someone to oversee your medical decisions, look into healthcare advance directives and appoint a patient advocate. Like an agent manages your estate, a patient advocate manages your health care.

2. Select a trusted agent

You have several options when selecting a viable agent, including family members, close friends, or professionals who specialize in these areas.

In some cases, this could mean choosing a trusted business partner who understands your values and financial goals, and in other cases, it might mean hiring an attorney or financial advisor with experience overseeing these duties.

Above all, you should select someone who you trust to honor your wishes and act in your best interest.

3. Draft the document

Once you've appointed an agent and determined the extent of their roles and responsibilities, you can begin drafting your durable power of attorney form.

You can download the standard durable power of attorney form and complete it yourself, hire an attorney to draft a customized form for you, or consult LegalZoom's power of attorney services. 

4. Include necessary language

While you can legally draft your own durable power of attorney document, we encourage you to meet with an attorney to ensure you've covered all your bases and addressed all your concerns. An attorney will also make sure your document explicitly states that your agent's authority will continue if you become incapacitated.

Remember, this language is important to include because it's what makes your document "durable," setting it apart from a regular power of attorney.

5. Sign and notarize

After completing the form, you and your agent must sign it in front of a notary public or two witnesses.

Furthermore, Michigan now requires the agent to sign the "Acknowledgment of Agent's Duties" document, agreeing to accept their responsibilities.

Once you've completed the form, provide copies to your agent and anyone else involved, including financial institutions, such as credit unions, banks, and insurance companies. It's also a good idea to keep your document up to date and be sure to follow proper procedures if you plan to make any changes.

How and when to revoke a durable power of attorney

Just because you've granted an agent financial power over your estate doesn't mean that power can go unchecked. You can set limitations on your power of attorney document, and if you are still mentally competent, you can cancel or revoke it at any time.

Why might you revoke your durable power of attorney? You may consider revoking your power of attorney if you feel like your agent is mismanaging your affairs or disregarding your wishes. If you no longer trust them to carry out their duties in your best interest, it's time to consider ending the relationship and replacing them with a new agent.

In Michigan, you can complete a revocation of power of attorney form to terminate your current arrangement. You must provide copies of the form to your agent and any other parties involved, such as your financial institutions.

FAQs

What is the difference between a non-durable power of attorney and a durable power of attorney?

The main difference is that an agent in a non-durable power of attorney loses their authority if the principal becomes incapacitated, while the agent in a durable power of attorney maintains their authority when the principal is incapacitated.

In other words, a durable power of attorney is designed to protect and maintain the principal's legal and financial affairs if they cannot make decisions on their own behalf, while a non-durable power of attorney expires at the point of incapacitation.

When does a durable power of attorney take effect in Michigan?

It depends on what the power of attorney states. You can choose to have it effective immediately upon signing, or you can choose to have it “spring” into effect upon some event (such as your incapacity).

Can I have more than one agent in a durable power of attorney in MI?

Yes, you can select more than one agent in your durable power of attorney. You can also name successor agents as replacements in case your original choices can't perform their duties.

Is a durable power of attorney valid after death?

No, a durable power of attorney is only valid while the principal is alive. Once the principal dies, the principal's executor, who is named in the will, takes over the remaining responsibilities. If you chose a trust instead of a will, the trustee would take over responsibilties.

How do I choose an agent for my durable POA?

There are a few things to consider when selecting a viable agent, such as their reliability, trustworthiness, and experience overseeing legal and financial matters. Ideally, you'll want someone who is honest, understanding, and willing to act in your best interest.