Obtaining a power of attorney in Michigan is not as easy as in many other states, because the Michigan legislature has not established standardized forms to specify power of attorney requirements in Michigan.
Basic power of attorney law
A financial power of attorney (or POA) is a legal document by which one person (called the "principal") gives another person authority to act on his or her behalf in one or more types of financial matters. The person acting for the principal in financial matters is known in Michigan as the "attorney-in-fact," but in many other states is called the "agent."
With a healthcare POA—called a Designation of Patient Advocate in Michigan—one person (called the "patient") gives another person (called the "patient advocate") the power to make medical treatment decisions if the patient is physically or mentally unable to do so.
Such POAs can be useful if you can't be present to take care of a financial matter or to enable someone you trust to take care of your finances or make medical treatment decisions in the event you become incapacitated.
Traditionally, a power of attorney was effective immediately and automatically ended if the principal became incapacitated. A POA that continues after the principal is incapacitated is known as a "durable" power of attorney. A POA that only becomes effective if the principal becomes incapacitated is known as a "springing" power of attorney (which by its nature is also durable). The Michigan Designation of Patient Advocate is both durable and springing.
Michigan POA law
The Michigan law relating to powers of attorney is found in Chapter 700 of the Michigan Compiled Laws, beginning with Section 700.5501. Provisions for a medical power of attorney begin with Section 700.5506.
Creating a power of attorney in Michigan for financial matters requires that it be dated, signed by either the principal or a notary public on behalf of the principal according to the requirements of the Michigan Notary Public Act, and either signed in the presence of two witnesses or acknowledged before a notary public. Both witnesses must also sign the documents, and neither can also be the attorney-in-fact.
Michigan financial power of attorney
Michigan allows for both a durable and a springing POA, but the legislature has not provided any form. To make a durable POA, the following statement should be included: "This power of attorney is not affected by the principal's subsequent disability or incapacity, or by the lapse of time." To make a springing POA, the following statement should be included: "This power of attorney is effective upon the disability or incapacity of the principal."
Regarding a POA that authorizes the attorney-in-fact to engage in real estate transactions, Michigan law specifically states that the POA "does not need to contain the real estate's legal description."
While there is no official form for a financial POA, there is an "acknowledgment of the attorney-in-facts's responsibilities" that the attorney-in-fact must sign before exercising authority under the POA. This may be found in Section 700.5501 (4) of the Michigan Compiled Laws.
Designation of patient advocate
As stated above, the Michigan Designation of Patient Advocate is created by a "patient" to give a "patient advocate" the power to make decisions about the patient's medical treatment only if the patient is mentally or physically unable to do so. It may include decisions regarding mental health treatment, and the ability to make anatomical gifts in the event of death.
A person must be at least 18 years old and of sound mind to create a Designation of Patient Advocate. The document must be dated, signed by the patient, and witnessed by two adults who also sign the document. There is no approved Designation of Patient Advocate form in the Michigan law, but there are some requirements as to what must be in the form, who may not serve as a witness, etc. These requirements can be found in the Michigan Compiled Laws, Section 700.5506 (3) and (4).
Before the patient advocate can act, he or she must be given a copy of the document, and the patient advocate must sign a document called an "acceptance of designation as patient advocate." The required content of this document is set forth in Section 700.5506 (4) of the Michigan Compiled Laws.
Because Michigan does not provide approved forms for either the financial or medical power of attorney, it's important to learn what these documents need to include. Take the initiative to prepare appropriate documents, based on those used in other states.
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