Michigan law recognizes a durable power of attorney for both financial and medical purposes. Both financial and medical powers of attorney allow one person, known as an agent under the financial, and an advocate under the medical, to perform actions for the creator, known as a principal. Financial powers of attorney in Michigan are durable -- continue after the principal's incapacitation -- unless the power of attorney states it ends when he becomes incapacitated. Medical durable powers of attorney only become effective once the principal can't make his own medical decisions.
Only a person who is at least 18 and mentally competent can create a power of attorney in Michigan. The principal must put the power of attorney in writing and sign it, or ask another person to do so in his presence; a licensed notary has to notarize the signature in either case. If the durable power of attorney is meant for healthcare, the principal also needs two witnesses to sign. Michigan law does recognize the authority of an agent or advocate who received power of attorney on a document that doesn't meet state requirements as long as it meets one of two conditions: The document must meet the standards of the existing power of attorney laws of its place of creation, or the place where the principal intended its use.
A principal can use the financial power of attorney to give his agent broad, general powers or restricted powers. Under Michigan law, the principal must state certain powers in the power of attorney or the agent won't be able to perform the actions for him, even if the principal gave general powers. Agents can't start, change or end a living trust, make gifts, alter the principal's inheritance plan for his heirs, disclaim property or delegate another person as agent if the power of attorney doesn't specifically grant him authority to do so. A durable power of attorney for healthcare decisions allows the advocate to make medical decisions for the principal if he can't make the decisions himself, including the right to end life support. The advocate can also use the principal's money to cover health services.
Michigan laws set specific circumstances that cause termination of a financial durable power of attorney. Powers end if the principal or agent dies, or if the principal revokes the powers. If the principal is married to the agent and is going to divorce or annul the marriage, the powers end as soon as he starts legal proceedings to do so. An agent who is incapacitated no longer has authority. If the principal named a successor agent, the authority does pass to the successor if the first agent resigns or can't perform his duties. A medical power of attorney ends if the principal terminates the advocate's authority or either party dies. The advocate's authority is suspended if the principal regains the ability to make his own medical decisions, but the document is still effective if he subsequently becomes unable to decide again.
Exceptions and Restrictions
If a provision in a financial power of attorney conflicts with Michigan law, the power of attorney still prevails unless state public policy expressly forbids the provision. Although an agent might keep his authority if a guardian or conservator is appointed for the principal, she has to account for her actions for the principal to the guardian or conservator. An advocate's powers may continue even after the principal's death, so she can finish specific actions she was given power to do, such as arranging for the principal's organ donation. A mental health worker or doctor also has the right to refuse to honor the advocate's authority on a particular matter, even if she's following the principal's expressed wishes, but only under one circumstance: The principal must be experiencing a mental health episode that threatens his safety or the safety of another person.
References & Resources
- Power of Attorney: Michigan Durable Power of Attorney Act
- State Bar of Michigan: Durable Power of Attorney
- Botsford Hospital: Durable Power of Attorney for Health Care
- Richard P. Woodbury, PC: Questions and Answers on Durable Power of Attorney under MI PA 312
- State Bar of Michigan: Durable Power of Attorney For Health Care
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