As attorneys serving clients throughout Troy, Shelby Township, Oakland County, and Macomb County, we often meet individuals who assume that a spouse or family member will automatically gain authority to handle financial or personal matters if they become incapacitated. In Michigan, that assumption creates significant risk.
Without a properly executed Durable Power of Attorney, important decisions can be delayed, and families can face difficult legal hurdles at the worst possible time. A Durable Power of Attorney is one of the most important documents in any estate plan because it allows trusted individuals to act when someone cannot speak or act independently.
Many Michigan adults are surprised to learn that incapacity does not grant automatic authority to loved ones. Instead, families may be forced to pursue a court-appointed conservatorship before any action can be taken. This process can be costly, time-consuming, and emotionally draining. A Durable Power of Attorney prevents these issues by giving clear, legally recognized authority in advance. With careful planning, individuals can maintain control over who handles their affairs and how those matters should be managed.
Understanding Michigan’s Durable Power Of Attorney Law
Michigan law recognizes powers of attorney under the Michigan Uniform Power of Attorney Act. A Durable Power of Attorney remains valid even if the principal becomes incapacitated. A properly executed document must be signed, dated, and witnessed by two individuals. It must also contain specific durability language indicating that the authority continues during incapacity.
This document authorizes an agent, often called an attorney-in-fact, to make financial and legal decisions on behalf of the person who created it. The authority may include handling banking matters, signing tax returns, managing real estate, applying for benefits, overseeing business affairs, and more. The scope can be broad or limited depending on individual needs, but the most important feature is continuity during incapacity.
Why A Durable Power Of Attorney Matters In Michigan
Many people assume that incapacity is unlikely. However, illness, injury, and cognitive decline are unpredictable. Without a Durable Power of Attorney, Michigan’s Uniform Power of Attorney laws allow only a court to appoint a conservator to manage financial affairs. This requires filing a petition, scheduling hearings, providing notice to interested parties, and submitting ongoing reports. These steps can delay access to funds, halt bill payments, and interrupt critical financial responsibilities.
A Durable Power of Attorney eliminates those obstacles. It gives families a legal framework to continue necessary financial and personal management without court involvement. It also prevents uncertainty and conflict by designating the individual most trusted to handle sensitive matters.
Choosing The Right Agent
Selecting an agent is one of the most important decisions in the estate planning process. The individual chosen should be responsible, trustworthy, and capable of handling financial matters. Michigan law allows the agent to act only within the scope granted. A well drafted document provides clear guidance to reduce the risk of misuse or confusion.
An agent can begin acting immediately or only upon a physician’s certification of incapacity, depending on how the document is written. We help clients understand the advantages of each option based on their circumstances.
Avoiding Gaps In Decision-Making
A Durable Power of Attorney is essential for keeping financial obligations stable. Without one, delays may occur in:
- Paying mortgages, utilities, or insurance
- Managing investments or retirement accounts
- Handling business matters
- Accessing funds necessary for daily expenses
In addition, institutions such as banks or brokerage firms often refuse to communicate with family members unless a valid power of attorney is presented. Planning now avoids these complications later.
Durable Power Of Attorney Versus Medical Directives
A common misconception is that medical documents automatically cover financial authority. In Michigan, a Durable Power of Attorney addresses financial and legal matters, while a Patient Advocate Designation governs healthcare decisions. These are separate legal tools, and adults benefit from having both documents in place to ensure continuous protection across all aspects of life.
Updating And Reviewing The Document
Michigan residents should review their Durable Power of Attorney every few years or whenever major life changes occur. Marriage, divorce, relocation, or changes in financial circumstances may require an update. An outdated document can create confusion or become ineffective if the chosen agent is no longer appropriate.
Michigan Durable Power Of Attorney Frequently Asked Questions
What Is A Durable Power Of Attorney In Michigan?
A Durable Power of Attorney is a legal document that authorizes an agent to make financial and legal decisions for the principal. It remains effective even during incapacity when the principal is unable to independently manage personal affairs. Michigan’s Uniform Power of Attorney law requires specific language indicating that the authority continues if the principal becomes incapacitated. Without this language, the document may lose effect at the very moment it is most needed.
How Is A Durable Power Of Attorney Executed Under Michigan Law?
Michigan law, specifically MCL 556.205, outlines the execution requirements. The document must be signed and dated by the principal and witnessed by two individuals. Notarization is recommended because financial institutions often request added proof of authenticity. The document must clearly state that the power survives incapacity for it to qualify as durable.
When Does A Durable Power Of Attorney Take Effect?
It may take effect immediately or only upon incapacity. Immediate powers allow the agent to act right away. Springing powers require proof, often a physician’s statement confirming incapacity. Immediate powers tend to reduce delays, while springing powers offer additional privacy. The decision depends on individual preference, risk tolerance, and family dynamics.
Can A Durable Power Of Attorney Be Revoked?
Yes. As long as the principal is mentally competent, the document may be revoked at any time. Revocation must be made in writing and communicated to anyone who may rely on the original document. Updated versions should be clearly identified to prevent confusion.
What Happens If Someone Does Not Have A Durable Power Of Attorney?
If incapacity occurs without a Durable Power of Attorney, family members must petition the probate court for the appointment of a conservator. This process requires hearings and ongoing reporting. Conservatorship is public, more expensive, and often slower than acting under a Durable Power of Attorney. Planning ahead prevents this disruption.
Can More Than One Agent Be Named?
Michigan allows multiple agents, and they may act jointly or independently. Naming co-agents can provide checks and balances, but it may also create delays if signatures are required from multiple individuals. Most clients prefer naming one primary agent and one backup to avoid conflict.
Call Boroja, Bernier & Associates Today
A Durable Power of Attorney is an essential part of a complete Michigan estate plan. Our legal team helps clients understand their options, select appropriate agents, and prepare documents that comply with Michigan law.
For guidance tailored to individual needs, call the Michigan estate planning attorneys at Boroja, Bernier & Associates at 586-991-7611 to schedule a consultation. Our offices in Troy and Shelby Township serve clients throughout Oakland County and Macomb County, helping Michigan residents protect themselves and their families through strong, proactive planning.
