Does Michigan’s New Uniform Power of Attorney Law Affect Your Power of Attorney? (Episode # 305)

0:32 Well, good afternoon, Michiganers. It is Tuesday, July ninth, twenty twenty four, and this is Tuesday with Tom, Michigan's only weekly Internet show where we do answer your questions about estate planning and estate settlement in Michigan, and we don't send you a bill. As always, I'm your host, Tom Doyle, estate planning attorney, lifelong Michigan resident, and ambassador for all things good in this great state of Michigan. Welcome, Welcome, Welcome to today's program. Last episode, why a will doesn't avoid probate. It's a topic that arises all the time when Aman and I are talking with clients or perspective clients, oftentimes thinking that having a will is a strategy for avoiding probate.

1:30 If you're thinking that or you want to know why a will doesn't avoid probate, I encourage you listen to last week's episode today's show. Does Michigan's new uniform power of Attorney law affect your power of attorney? July first, a mayor nine days ago, we have a new statute in the state of Michigan that controls power of attorney in the state of Michigan. So does Michigan's new uniform power of Attorney law affect your power of attorney. Please remember, though, that what I'm about to discuss during the program is, as always for educational purposes only. It is not intended to be legal advice. You need to work with your attorney to determine what is appropriate for you and your estate plan. Does Michigan's new uniform power of attorney law affect your power of attorney? Well? On July first, twenty twenty four, a mayor nine days ago, Michigan's new uniform power of Attorney became effective. And that new statute really is designed to serve several purposes that were of concern apparently to the

3:06 Michigan legislature. One was attempting to prevent financial exploitation of vulnerable individuals, obviously a real important matter that is going on now where many seniors are being taken advantage, and so a change in the statute designed to help prevent financial exploitation of vulnerable individuals. Another reason was to make a standard power of attorney document more accessible to Michigan residents and more widely accepted by financial institutions. And another reason is to because it's a Uniform Statute Uniform Power of Attorney Act. It is also intended to try and make powers of attorney that are created in Michigan more acceptable in other states. So a number of purposes behind this new statute that took effect on July first, nowt important. The law does not affect does not affect any patient advocate, designation, or healthcare power of attorney document where you are authorizing someone to make medical decisions for you, or any documents where you are a parent or guardian regarding the care, custody or property of

4:42 a mind or child. So it doesn't affect those. We're merely talking about durable powers of attorney in the state of Michigan. So what does in particular the new Uniform Power of Attorney Act? How does does it affect existing powers of attorney? You've already had a power of attorney prepared for you, perhaps by us, perhaps by another law firm. We have a new statute that has now come in effect and important to understand, does that new statute affect your existing durable power of attorney? Well, a power of attorney, durable power of attorney that was created by US Doyle Law PC will still be valid under this new statue, as well as most other durable powers of attorney that have been created elsewhere, will likely still be valid under the new statute.

5:46 An important consideration when you look at a power of attorney, though, is does it continue to be in effect if you become incapacitated. Well, most clients, that's why they have a durable power of attorney. They want to have a document in place so that if they become incapacitated, the person that they've named in their durable power of attorney will be able to continue to take care of financial matters on their behalf. So question whether or not a durable power of attorney is still going to be durable, Well, under the new statute. Your existing durable power of attorney will still be durable if it was signed before a notary or signed before two witnesses, neither of whom is the agent nominated in the document, and it does have a provision in it indicating that you wanted it to be durable i e. Not adversely affected by your becoming incapacitated. If you have all of that, either notarized by a notary or side between two witnesses, then your existing and if it has language in it, indicating that it was your intent that it is in fact to be durable, then it will still be a durable power of attorney. An important

7:24 provision under the statute, though, has to do with when your durable power of attorney is now taken to a financial institution, perhaps your bank, a credit union, or your investment advisor. You're now somebody is giving them that durable power of attorney that you had executed, and they are saying, hey, i'm a point in this document to begin managing the bank account, etc. So there are new provisions in the statue that can complicate in a way a bank or credit union accepting a durable power of attorney, and that is this a financial institution who is being asked to accept the durable power attorney must confirm that the document meets with their approval. So when your durable power of attorney is provided to your bank or provided to your financial institution, that institution can now require additional verification, not just the document that they are being presented that might have been executed by you any number of years ago, but they can require additional verification, which could include an opinion letter from an attorney to

8:54 answer questions about the validity of the power of attorney, and that is likely what we are going to see happening. Most financial institutions are likely now going to say, when they are presented with a durable power of attorney, they are going to require what the statute sets forth as additional verification, including an opinion letter from an attorney. Now, it doesn't do you any good to go out and have necessarily that opinion letter from an attorney done right now, because if it's not going to be used with your finance institution for a number of years, they can always then require an updated opinion letter, so affirming that nothing has changed since the document was in fact prepared. So, in our view, we are not going to simply be including automatically opinion letters with the durable powers of attorney that we're drafting, because they might simply have to be prepared again down the road, and it doesn't make sense for us to do it now now. Part of the problem, obviously is that now, because the bank or finance institution might be requiring additional verification, that can interfere with the time frame in which your agent is going to be able to act on your behalf they take your power of attorney to the bank. Bank says,

10:26 hey, we require either, and it's going to be their decision certification by the agent about the power of attorney or in fact a document from the letter or i'm a document from the attorney answering questions about the validity, and in all probability they're going to want the letter from the attorney. That means now that that power of attorney, the individual who's trying to exercise it now has to go back to the attorney who drafted the document, and presumably the attorney who drafted the document. I'm not sure an attorney is going to be willing necessarily to provide opinion letters on documents they didn't draft. Most likely going to have to go back to the attorney's office who drafted the document and get that opinion letter from the attorney, obviously, which can all delay everything.

11:31 What we recommend you do now, though, to try and avoid that delay, take your durable power of attorney that you've already had prepared for you. Take it to your financial institutions. Now see if they are willing to complete their validation process while you're still alive and alive. Durable power of attennany, I'm sorry ends when you die while you're still have capacity to make changes. Let me repeat that. We recommend providing the Durable Power Attorney to your financial institution now so they can complete their validation process while you're still able to make changes in the future. If you update your Durable Power Attorney, then you're going to want to make sure that you do, in fact, provide updated documents to your financial institutions as soon as possible. The whole idea being proactive.

12:35 Reach out to your financial institution with your existing document and see what it is they are going to require of you in order to validate it at this point in time. Another question that arises, though, and the expectation, is that many financial institutions and service provide are now going to have excuse me, their own version of a Durable Power Attorney form available. So when you go to your bank, or you go to your credit union, or you go to your finance institution, you might be presented with their Durable Power of Attorney form and they are going to ask you to execute their Durable Power of Attorney form. Well, under the statute, they can't require you to sign their Durable Power of attorney form if you already have a durable power attorney form that complies with the new law. So if they present you, if you go into your financial institution with an existing power of attorney that complies with the new law, they should not be able to insist that you execute their power of attorney form. So if you're offered one, if you go into your bank, credit union, financial institution, they say, hey, here's our

14:11 durable power of Attorney form. We want you to sign it. You shouldn't sign it without consulting with your attorney because in all probability, signing the new durable power of Attorney form from the bank is going to invalidate your current durable power of Attorney form and might not have provisions in it that would allow your agent to act in the ways that you intend. So don't just take a form from the bank because they give it to and say, oh, I better sign this one. If you have a durable power of attorney form already, don't sign the new one without consulting with your attorney. Additionally, what you're going to find is that this new State the Act Durable Power Attorney Form has many choices for the type of authority general authority, specific authority that you're going to be giving to your agent, and every choice that you make on the form might have unintended consequences. It might interfere with your current estate plan, might have a significant effect on your ability to do future planning to protect assets, maybe for your spouse. So for these and many other reasons, we do recommend that you don't sign the form presented by your financial institution without consulting and attorney. So, in summary, if you will, the new

15:50 Michigan Uniform power of Attorney law doesn't necessarily invalidate your existing durable power of attorney if it was appropriately executed under the law that existed before January first, And so what we recommend, though, in a consideration for that though, is again, take a look at your current power of attorney document, verify that the agents you have selected will still be able to serve if needed. Have your attorney update the documents now, Provide copies of your durable power attorney to the agents named in the document so that that will have it available if it's needed. Provide copies of your relevant durable power of attorney to the institution such again as your bank credit unions. Perhaps life insurance companies wherever it is that durable power of attorney might be needed, so that you can find out whether or not they are going to require additional verification or any perhaps changes that need to be made to that durable power of attorney. For of course, it

17:26 goes without saying that if you are already clients of our office, we would be happy to have an opportunity to review your existing durable power of Attorney form with you and if any changes need to be made to update or prepare replacement durable powers of attorney, depending upon what needs to be done. So if you meet with your finance institution and they are requiring something additional, please reach out to us. And of course, beyond that, we would be happy to help protect your loved ones by putting together your state plan, a, mending a current plan, or assisting you in settling an a state. As always, simply head on over to DOYLAWPC dot com. At the website you're going to find information on how to schedule in personal consultations at the new Grand Rapids office or the East Lansing location, or how to schedule a virtual consultation via zoom or telephone. Where we can be of assistance to you wherever you happen to be in the state of Michigan. Remember too, if you're looking for simply an individual document, and maybe that individual document that you're looking for is a new durable power Attorney form, head on over to the Legal Store at doylapc dot com and there you will find information on how you can order individual documents that will be prepared and sent to you. Well, that's going

19:10 to be it for today's show, though, as always, if you have a comment about the program, a topic that you'd like to have me discuss, or questions that you'd like to have answered, simply head on over to Tuesday with Tom dot com, leave a voice message by clicking on the microphone, or alternatively send me an email Tom at Tuesday with Tom dot com. Please remember follow us on Facebook. Ask your friend and families to follow us on Facebook. That would be Tuesday with Tom. The Law Office Facebook where you would follow us the law office is Doyle Law PC. Don't remember, don't forget to join our email list simply at Doyle LAWPC. I'm sorry.

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