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

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Well, good afternoon, Michiganers.
It is Tuesday, July ninth, twenty

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twenty four, and this is Tuesday
with Tom, Michigan's only weekly Internet show

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where we do answer your questions about
estate planning and estate settlement in Michigan,

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and we don't send you a bill. As always, I'm your host,

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Tom Doyle, estate planning attorney,
lifelong Michigan resident, and ambassador for all

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things good in this great state of
Michigan. Welcome, Welcome, Welcome to

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today's program. Last episode, why
a will doesn't avoid probate. It's a

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topic that arises all the time when
Aman and I are talking with clients or

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perspective clients, oftentimes thinking that having
a will is a strategy for avoiding probate.

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If you're thinking that or you want
to know why a will doesn't avoid

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probate, I encourage you listen to
last week's episode today's show. Does Michigan's

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new uniform power of Attorney law affect
your power of attorney? July first,

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a mayor nine days ago, we
have a new statute in the state of

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Michigan that controls power of attorney in
the state of Michigan. So does Michigan's

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new uniform power of Attorney law affect
your power of attorney. Please remember,

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though, that what I'm about to
discuss during the program is, as always

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for educational purposes only. It is
not intended to be legal advice. You

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need to work with your attorney to
determine what is appropriate for you and your

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estate plan. Does Michigan's new uniform
power of attorney law affect your power of

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attorney? Well? On July first, twenty twenty four, a mayor nine

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days ago, Michigan's new uniform power
of Attorney became effective. And that new

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statute really is designed to serve several
purposes that were of concern apparently to the

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Michigan legislature. One was attempting to
prevent financial exploitation of vulnerable individuals, obviously

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a real important matter that is going
on now where many seniors are being taken

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advantage, and so a change in
the statute designed to help prevent financial exploitation

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of vulnerable individuals. Another reason was
to make a standard power of attorney document

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more accessible to Michigan residents and more
widely accepted by financial institutions. And another

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reason is to because it's a Uniform
Statute Uniform Power of Attorney Act. It

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is also intended to try and make
powers of attorney that are created in Michigan

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more acceptable in other states. So
a number of purposes behind this new statute

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that took effect on July first,
nowt important. The law does not affect

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does not affect any patient advocate,
designation, or healthcare power of attorney document

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where you are authorizing someone to make
medical decisions for you, or any documents

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where you are a parent or guardian
regarding the care, custody or property of

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a mind or child. So it
doesn't affect those. We're merely talking about

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durable powers of attorney in the state
of Michigan. So what does in particular

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the new Uniform Power of Attorney Act? How does does it affect existing powers

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of attorney? You've already had a
power of attorney prepared for you, perhaps

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by us, perhaps by another law
firm. We have a new statute that

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has now come in effect and important
to understand, does that new statute affect

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your existing durable power of attorney?
Well, a power of attorney, durable

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power of attorney that was created by
US Doyle Law PC will still be valid

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under this new statue, as well
as most other durable powers of attorney that

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have been created elsewhere, will likely
still be valid under the new statute.

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An important consideration when you look at
a power of attorney, though, is

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does it continue to be in effect
if you become incapacitated. Well, most

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clients, that's why they have a
durable power of attorney. They want to

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have a document in place so that
if they become incapacitated, the person that

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they've named in their durable power of
attorney will be able to continue to take

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care of financial matters on their behalf. So question whether or not a durable

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power of attorney is still going to
be durable, Well, under the new

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statute. Your existing durable power of
attorney will still be durable if it was

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signed before a notary or signed before
two witnesses, neither of whom is the

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agent nominated in the document, and
it does have a provision in it indicating

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that you wanted it to be durable
i e. Not adversely affected by your

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becoming incapacitated. If you have all
of that, either notarized by a notary

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or side between two witnesses, then
your existing and if it has language in

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it, indicating that it was your
intent that it is in fact to be

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durable, then it will still be
a durable power of attorney. An important

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provision under the statute, though,
has to do with when your durable power

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of attorney is now taken to a
financial institution, perhaps your bank, a

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credit union, or your investment advisor. You're now somebody is giving them that

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durable power of attorney that you had
executed, and they are saying, hey,

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i'm a point in this document to
begin managing the bank account, etc.

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So there are new provisions in the
statue that can complicate in a way

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a bank or credit union accepting a
durable power of attorney, and that is

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this a financial institution who is being
asked to accept the durable power attorney must

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confirm that the document meets with their
approval. So when your durable power of

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attorney is provided to your bank or
provided to your financial institution, that institution

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can now require additional verification, not
just the document that they are being presented

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that might have been executed by you
any number of years ago, but they

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can require additional verification, which could
include an opinion letter from an attorney to

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answer questions about the validity of the
power of attorney, and that is likely

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what we are going to see happening. Most financial institutions are likely now going

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to say, when they are presented
with a durable power of attorney, they

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are going to require what the statute
sets forth as additional verification, including an

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opinion letter from an attorney. Now, it doesn't do you any good to

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go out and have necessarily that opinion
letter from an attorney done right now,

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because if it's not going to be
used with your finance institution for a number

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of years, they can always then
require an updated opinion letter, so affirming

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that nothing has changed since the document
was in fact prepared. So, in

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our view, we are not going
to simply be including automatically opinion letters with

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the durable powers of attorney that we're
drafting, because they might simply have to

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be prepared again down the road,
and it doesn't make sense for us to

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do it now now. Part of
the problem, obviously is that now,

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because the bank or finance institution might
be requiring additional verification, that can interfere

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with the time frame in which your
agent is going to be able to act

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on your behalf they take your power
of attorney to the bank. Bank says,

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hey, we require either, and
it's going to be their decision certification

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by the agent about the power of
attorney or in fact a document from the

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letter or i'm a document from the
attorney answering questions about the validity, and

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in all probability they're going to want
the letter from the attorney. That means

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now that that power of attorney,
the individual who's trying to exercise it now

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has to go back to the attorney
who drafted the document, and presumably the

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attorney who drafted the document. I'm
not sure an attorney is going to be

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willing necessarily to provide opinion letters on
documents they didn't draft. Most likely going

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to have to go back to the
attorney's office who drafted the document and get

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that opinion letter from the attorney,
obviously, which can all delay everything.

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What we recommend you do now,
though, to try and avoid that delay,

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take your durable power of attorney that
you've already had prepared for you.

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Take it to your financial institutions.
Now see if they are willing to complete

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their validation process while you're still alive
and alive. Durable power of attennany,

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I'm sorry ends when you die while
you're still have capacity to make changes.

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Let me repeat that. We recommend
providing the Durable Power Attorney to your financial

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institution now so they can complete their
validation process while you're still able to make

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changes in the future. If you
update your Durable Power Attorney, then you're

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going to want to make sure that
you do, in fact, provide updated

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documents to your financial institutions as soon
as possible. The whole idea being proactive.

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Reach out to your financial institution with
your existing document and see what it

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is they are going to require of
you in order to validate it at this

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point in time. Another question that
arises, though, and the expectation,

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is that many financial institutions and service
provide are now going to have excuse me,

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their own version of a Durable Power
Attorney form available. So when you

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go to your bank, or you
go to your credit union, or you

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go to your finance institution, you
might be presented with their Durable Power of

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Attorney form and they are going to
ask you to execute their Durable Power of

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Attorney form. Well, under the
statute, they can't require you to sign

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their Durable Power of attorney form if
you already have a durable power attorney form

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that complies with the new law.
So if they present you, if you

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go into your financial institution with an
existing power of attorney that complies with the

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new law, they should not be
able to insist that you execute their power

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of attorney form. So if you're
offered one, if you go into your

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bank, credit union, financial institution, they say, hey, here's our

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durable power of Attorney form. We
want you to sign it. You shouldn't

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sign it without consulting with your attorney
because in all probability, signing the new

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durable power of Attorney form from the
bank is going to invalidate your current durable

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power of Attorney form and might not
have provisions in it that would allow your

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agent to act in the ways that
you intend. So don't just take a

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form from the bank because they give
it to and say, oh, I

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better sign this one. If you
have a durable power of attorney form already,

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don't sign the new one without consulting
with your attorney. Additionally, what

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you're going to find is that this
new State the Act Durable Power Attorney Form

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has many choices for the type of
authority general authority, specific authority that you're

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going to be giving to your agent, and every choice that you make on

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the form might have unintended consequences.
It might interfere with your current estate plan,

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might have a significant effect on your
ability to do future planning to protect

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assets, maybe for your spouse.
So for these and many other reasons,

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we do recommend that you don't sign
the form presented by your financial institution without

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consulting and attorney. So, in
summary, if you will, the new

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Michigan Uniform power of Attorney law doesn't
necessarily invalidate your existing durable power of attorney

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if it was appropriately executed under the
law that existed before January first, And

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so what we recommend, though,
in a consideration for that though, is

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again, take a look at your
current power of attorney document, verify that

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the agents you have selected will still
be able to serve if needed. Have

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your attorney update the documents now,
Provide copies of your durable power attorney to

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the agents named in the document so
that that will have it available if it's

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needed. Provide copies of your relevant
durable power of attorney to the institution such

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again as your bank credit unions.
Perhaps life insurance companies wherever it is that

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durable power of attorney might be needed, so that you can find out whether

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or not they are going to require
additional verification or any perhaps changes that need

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to be made to that durable power
of attorney. For of course, it

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goes without saying that if you are
already clients of our office, we would

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be happy to have an opportunity to
review your existing durable power of Attorney form

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with you and if any changes need
to be made to update or prepare replacement

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durable powers of attorney, depending upon
what needs to be done. So if

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you meet with your finance institution and
they are requiring something additional, please reach

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out to us. And of course, beyond that, we would be happy

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to help protect your loved ones by
putting together your state plan, a,

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mending a current plan, or assisting
you in settling an a state. As

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always, simply head on over to
DOYLAWPC dot com. At the website you're

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going to find information on how to
schedule in personal consultations at the new Grand

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Rapids office or the East Lansing location, or how to schedule a virtual consultation

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via zoom or telephone. Where we
can be of assistance to you wherever you

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happen to be in the state of
Michigan. Remember too, if you're looking

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for simply an individual document, and
maybe that individual document that you're looking for

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is a new durable power Attorney form, head on over to the Legal Store

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at doylapc dot com and there you
will find information on how you can order

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individual documents that will be prepared and
sent to you. Well, that's going

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to be it for today's show,
though, as always, if you have

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a comment about the program, a
topic that you'd like to have me discuss,

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or questions that you'd like to have
answered, simply head on over to

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Tuesday with Tom dot com, leave
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or alternatively send me an email Tom
at Tuesday with Tom dot com.

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Tuesday with Tom. Well, thanks
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us to do it today, and
as always, I hope you have an

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awesome day and awesome week in Michigan. Stay safe. Tuesday with Tom has

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