Durable powers of attorney (POAs) are important legal tools used to plan ahead in case something happens to you. Without a durable POA, a serious medical emergency that you suffer could be much worse for you and your loved ones. Durable POAs allow you to decide, while you’re healthy and of sound mind, who you want to act on your behalf if something happens to you and you can no longer act alone.
No one likes to think about a serious illness or injury that makes them unable to make important choices for themselves. Unfortunately, this can happen at any age, at any time. Having a durable power of attorney gives you the chance to name an attorney in fact. By doing so, you – and not a court during guardianship proceedings- get to decide who has the authority to make your decisions when you can’t make them on your own.
Biddinger & Estelle, PC will help you create a durable POA that is legally valid under Michigan’s laws and that gives you control over your destiny by allowing you to choose who will be your voice. You can also check out this step-by-step guide to get an idea of the steps our firm will help you to take as you make sure you’re protected in case of an incapacitating health impairment.
Decide Who Will Be Your Attorney in Fact
You need to select the person who is going to actually be making decisions for you. Choose carefully, because you want this person to respect your wishes and to understand how to make decisions on your behalf that you would approve of.
You are likely entrusting your POA with the management of many valuable assets you own, so you also want the attorney in fact to be someone who can keep your wealth safe and who isn’t likely to mismanage or misappropriate it. Your attorney in fact has a fiduciary duty to act in your best interest, but no on wants to be forced into legal proceedings because an attorney in fact failed to do what was right.
Include the Proper Language for Durable Powers of Attorney
According to Michigan Estate and Protected Individuals Code section 700.5501, specific language should be included in your POA to make clear that it is durable.
Durable powers of attorney stay in effect after you become incapacity. If your POA isn’t durable, when you become incapacitated, the grant of authority you gave to your attorney in fact will end. This is obviously a very bad outcome, since you created the POA specifically to give your attorney in fact authority to act on your behalf in case of incapacity.
Code section 700.5501 states that if you want your POA to stay in effect after incapacity, your written document has to contain wording such as: “This power of attorney is not affected by the principal’s subsequent disability or incapacity, or by the lapse of time.” It could also state: “This power of attorney is effective upon the disability or incapacity of the principal,” or use similar language to demonstrate an intent to allow the POA to stay effective, even if you can no longer make or express your own decisions.
Date and Sign Your Durable POA
Once you’ve decided who will be your attorney in fact and gone through the process of drafting your written document, it is time to sign it. Michigan Code section 700.5501 mandates that your POA has to be dated and it has to be signed either by the person creating it or a notary public acting on behalf of the person creating it.
You have to sign your POA in front of two witnesses, and neither of those witnesses can be the person you are naming as attorney in fact. Both of the witnesses also have to sign the durable power of attorney as well. If you cannot sign and date the POA in front of two witnesses, who also sign it, then your other option is to have a notary act on your behalf.
Getting Help from a Michigan Incapacity Planning Lawyer
Knowing the steps to create durable powers of attorney isn’t the same as actually doing each step correctly to ensure you’ve created a power of attorney that will protect you and your loved ones. Biddinger & Estelle, PC will guide you through understanding the role a durable power of attorney will play in your plans and can help you through the steps of actually creating a POA that will be enforceable and provide expected protections.
To find out more about the role that your power of attorney should play in your plans for the future, download our free estate planning worksheet. You can also give us a call us today at (989) 872-5601 or contact us online for personalized advice.
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