Did you know that the Michigan Uniform Power of Attorney Act (UPOAA), signed into law by Governor Gretchen Whitmer on November 7, 2023, took effect on July 1, 2024? What does this mean for you in regards to estate planning? Pear Sperling Eggan & Daniels, P.C. is here for you when it comes to answering all your legal questions and making sure you’re setup for success.
The UPOAA Act replaces the prior Michigan power of attorney law, designed to promote standardization, consistency and ease of use. The Act will help alleviate problems with enforcement previously caused by laws that varied from state to state. The Act provides the agent with broad powers while protecting the principal against abuse and fraud. It also provides the agent with reimbursement for expenses as well as reasonable compensation, unless specifically prohibited by the terms of the power of attorney.
If a power of attorney is executed in compliance with statutory requirements, it will automatically be durable without any need for an affirmative statement of durability in the power of attorney. This will help to ensure the principal’s wishes are followed in the event of a serious illness, debilitating injury or devastating accident.
A potential positive outcome is that fewer guardianships and conservatorships will be necessary as the knowledge to create the document becomes more common.
General powers include authority over real and personal property, banking, stocks, bonds and other financial investments, insurance, annuities, litigation and claims, retirement and governmental benefits, and taxes. The form allows the principal to grant some or all the general powers to the agent.
The agent’s duties include acting in good faith within the scope of the authority granted; and maintaining reasonable records of receipts, disbursements, and transactions. In addition, unless the power of attorney provides otherwise, the agent must act loyally for the principal’s benefit, and with the care, competence and diligence of a prudent person, must preserve the principal’s estate and cooperate with a person with authority to make health care decisions.
The UPOAA contains several references to alternative dispute resolution. The portion of the statute addressing a general grant of authority over claims and litigation explicitly includes the agent’s power to submit a dispute to alternative dispute resolution unless the power of attorney indicates otherwise.
Under the Act, signing the power of attorney before two witnesses, other than the principal and agent, is sufficient to make the power of attorney effective. However, signing before a notary is encouraged because it creates a legal presumption that the power of attorney contains a genuine signature. In situations where families may disagree who the appointed agent is or question the authenticity of the document, having a document drafted and signed at an attorney's office can lessen the ability to challenge the legitimacy of the document and appointed agent.
The UPOAA does not apply to patient advocate designations, which are still governed by EPIC. A patient advocate is given authority to exercise powers concerning care, custody, and medical or mental health treatment decisions for the individual who granted the patient advocate designation. The Act also does not apply to delegation of a parent or guardian’s authority over a minor child or ward. These documents are drafted by attorneys who facilitate their clients through the decision making process to best present their end of life decision making.
A durable power of attorney ends upon the principal’s revocation, death of the principal, or by court order.
The Act clearly provides that an existing power of attorney remains valid as long as it was properly executed at the time it was signed.
If you have questions regarding the New Michigan Uniform Power of Attorney Act, talk to an estate planning attorney in Ann Arbor before doing anything.
Website Hosting by Network Services Group, LLC
SEO by Michigan SEO Group