Durable Power of Attorney

While many people in Michigan understand that they should engage in estate planning to make sure that their property is distributed upon their death and their children's futures are protected, fewer people realize the importance of planning in case of a disability. This may arise due to serious illnesses, accidents, or old age. In Michigan, the probate court may appoint an individual or bank to act on your behalf, but you cannot be sure of whom the court will appoint, and the proceedings may be inconvenient, time-consuming, and expensive. The person appointed might not be the person whom you would have appointed, and the decisions made may not be the ones that you would have had in mind. If you are considering creating a durable power of attorney in case of a disability, the Grand Rapids and Traverse City estate planning attorneys at Neumann Law Group may be able to advise you and draft an instrument on your behalf. Kelly Neumann is an award-winning trial attorney who understands the contingencies that may arise in connection with a disability.

An ordinary power of attorney is insufficient when it comes to a disability because it only gives a person whom you have chosen the power to act for you if you are competent. When you are disabled, an ordinary power of attorney becomes invalid. The durable power of attorney works to give someone of your choice the right to act on your behalf if you become disabled or incapacitated.

Under Section 5501 of the Estates and Protected Individuals Code, a durable power of attorney is an instrument by which a principal designates someone else, known as the attorney-in-fact, to act on their behalf. Your durable power of attorney must be in writing and include language that states that it will not be affected by your disability or incapacity, or that it will become effective upon your disability. It needs to indicate that the authority that it grants may be exercised notwithstanding how much time has elapsed since it was executed.

You will need to specify how it should be determined that you are disabled so that your agent can let a third party know that you are disabled. In most cases, durable powers of attorney are broad, including powers to conduct bank transactions, handle assets, pay debts, deal with insurance and retirement benefits, prepare tax returns, make medical decisions, contract for services, collect benefits, and exercise the rights of a settlor of a trust. In some cases, a durable power of attorney is limited to property and financial matters, while someone else is designated as a patient advocate.

The durable power of attorney needs to be valid and signed in the presence of two witnesses, neither of whom is the attorney-in-fact, before you are disabled. They will also need to sign the document. You should only name someone as your agent whom you trust to act in your best interest and follow your instructions. Unless you provide otherwise, the attorney-in-fact whom you name must act with the standard of care of a fiduciary, which is the highest standard of care.

It is a significant responsibility to take over someone else's financial and other concerns. If you are concerned about preparing a durable power of attorney, our Traverse City and Grand Rapids lawyers can help. Our firm also represents people in Ann Arbor, Flint, Lansing, Kalamazoo, Detroit, Wyoming, Saginaw, Muskegon, Midland, Holland, Warren, and Petoskey, as well as communities throughout the Upper Peninsula. Contact Neumann Law Group at 800-525-NEUMANN or via our online form to set up a free consultation. We also represent people who need a family law attorney or guidance in a wide range of other matters.