Know The Limits Of Your Power Of Attorney (Episode #291)

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Boom. Well, good afternoon,
Michiganders. It is Halloween Tuesday, October

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thirty one, twenty twenty three,
and this, of course is Tuesday with

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Tom, Michigan's only weekly podcast where
we answer your questions about estate planning and

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a state settlement in Michigan, and
we don't send you a bill. As

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always, I'm your host, Tom
Doyle, a state planning attorney, lifelong

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Michigan resident, and ambassador for all
things good in this great state of Michigan.

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Welcome, welcome, welcome to today's
program. Well, I hope all

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of you have a good evening tonight
if you're out with your young ones trick

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or treating, but please stay safe. Last episode a little while ago,

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because I've been gone for a bit. But who can witness my durable power

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of attorney? So if you have
a durable power of attorney and you're wondering

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who it is that can witness it, I encourage you to listen to last

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week's episode and now continuing essentially with
what appears to have been. If you've

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been following a theme lately where we're
spending time talking about powers of attorney,

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today, we want to be sure
that you know the limits of your power

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of attorney. So in that respect, I am going to be replaying that

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discussion in a previous episode of Tuesday
with Tom where I talked about the limits

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on your power of attorney. But
as always, please remember that what I'm

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about to discuss during the program is
for educational purposes only. It is not

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intended to be legal advice. You
need to work with your attorney to determine

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what is appropriate for you and your
estate plan. Your power of attorney is

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not unlimited. Well, as I
talked about another program, what is a

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power of attorney? Essentially, it's
a legal document in which you allow or

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a point, or authorize whatever terminology
you want to use someone to act in

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your place. Now, it might
be a durable power of attorney. That

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would be it's going to allow that
person to take care of things even if

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you're incapacitated, although in Michigan it
does require particular language to make it durable.

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If it's not going to be durable, then the power of attorney would

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end at the point in time you
become incapacitated. Well, most people have

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a power of attorney so that somebody
can take care of business for them if

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they become incapacitated. So most people
are going to have or want to have,

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what's called a durable power of attorney. And as you likely know,

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there are two basic types of powers
of attorney. There is one for financial

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to take care of your banking,
your investments, your life insurance, your

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retirement plans, whatever that happens to
be. And then there is going to

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be the medical power of attorney,
sometimes called a patient advocate, depending upon

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what terminology is being used in the
form. So financial powers of attorney usually

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are going to include certain powers that
might be the power to open a bank

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account, take money out of the
bank, pay your bills, maybe trade

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in stock, sell real estate,
buy real estate. All of those kinds

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of things are oftentimes included in a
financial power of attorney. And then the

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medical power of attorney, of course, is a document in which you are

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allowing the agent to make healthcare decisions
for you. Now, there are limitations

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on powers of attorney. Some of
those limitations will start with the document.

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It it inevitably happens every few months, someone's going to contact Amanda and I

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and Amanda and I and one of
the questions is going to be, well,

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I've got this power of attorney.
Can I do X under the power

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of attorney? Well, the problem
in answering that question is we can't answer

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it without seeing the document because the
document starts with laying out very specific powers

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that you have. And it might
be a very broad general financial power of

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attorney that allows somebody to do everything
that they need to do relative to someone's

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finances and filing tax returns, et
cetera. Or it might be a very

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limited power of attorney. Example,
let's say that you have a home and

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you have a closing scheduled on your
home in January, but you're going to

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be in Florida in January. You
might give somebody else a limited power of

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attorney to sign whatever documents need to
be signed simply for the purpose of closing

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on the sale of your house.
That doesn't give them the authority to do

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banking and pay taxes, etc.
It's simply limited to that authority. Or

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you might be a trustee of a
trust and you have a bank account and

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you want someone else to be able
to help you manage that bank account.

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You don't want them to be a
trustee, You simply want them to have

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authority to write checks on the account, deposit the accounts. You could in

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that case have a limited power of
attorney drafted for that purpose. I had

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a client several years ago who was
heading off for his military service, and

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in that case, he had an
account and that account was to be used

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to pay his bills, and he
simply wanted his brother to have authority to

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write checks, to make deposits,
to do transactions only on that account.

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So we created a limited power of
attorney. So it starts with the document

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itself, and that's going to tell
us what specific authorities that you have,

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whether it's limited or a broad type
power of attorney. So Number one limitations

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in the document itself. Number two
limitations under the law. There are limitations

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under the law, some basic limitations
that are going to be applicable whether it's

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a financial or a medical power of
attorney. Some of those would be for

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example, under either whether it's financial
or medical, you the agent, the

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person that's named and given the authority
is called an agent or perhaps a patient

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advocate in the document. They are
what the law calls a fiduciary, and

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as a fiduciary, they have a
fiduciary duty. And what is that the

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agent is required at all times to
act in the best interest of the person

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who gave them the power of attorney. That's a fiduciary duty. So the

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person under your financial power attorney does
not have the legal authority do what they

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want to do to help themselves.
It's to help you. That's the fiduciary

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duty. So everybody appointed under either
a financial, medical, limited broad doesn't

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matter, has that same fiduciary duty. Second, there is always the power

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that is reserved by the person making
the power of attorney to revoke it,

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then get rid of it or change
it. That is their right to do

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that. Now, under Michigan law, as long as that person is competent,

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he or she can revoke the financial
power of attorney for any reason.

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We will actually see that under a
healthcare power attorney in the state of Michigan,

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the person can in fact revoke it
even if they are incompetent. So

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to revoke a financial they have to
be competent. To revoke a medical they

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don't even have to be competent or
do that. But in many cases the

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power can be revoked. An agent
might be removed by a court proceeding.

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Let's say that the agent is acting
improperly. A family member can file a

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petition to probate court challenging what the
agent is doing. And if the court

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determines that the agent is not acting
in the principle's best interest, i e.

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Violating that fiduciary duty or otherwise violating
the terms of the power of attorney

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itself, the court could revoke the
power of attorney, and if it was

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so inclined, even appoint a conservator
who would now have the legal authority over

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that individual's assets. Also, power
of attorney ends at death. Financial medical

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they both end at death. Now, we also in Michigan have some very

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specific restrictions that apply to financial durable
power of attorneys, and that is one,

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the agent has to take reasonable steps
to follow the instructions of the principle.

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So you need to talk to the
person about what do you want me

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to do in managing your assets and
paying your bills or making investment decisions,

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whatever happens to be. Two,
if the principle requests it, the agent

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has to keep the principle informed of
what they are doing. They have to

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provide an accounting to the principle so
that the principle can look at the bank

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account records and know what's being done
for them, or if that person is

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incapacitated, then that accounting would be
provided to either their guardian or conservator who

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would be appointed by the probate court. But there needs to be an accounting

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provided to the principle or their representative, if you will, so that they

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can all know what you're doing under
that financial power of attorney. You cannot.

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You cannot make a gift from the
principle's property unless the durable power of

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attorney allows you to do that.
So you can't just give their stuff away

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just because that's what you want to
do, or in some cases you might

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think about doing some medicaid planning,
and sometimes under medicaid planning, giving stuff

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away might be a part of a
medicaid plan. But you can't do that

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unless the power of attorney specifically authorizes
you to make gifts. Also, you

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cannot unless the power of attorney authorizes
it. You cannot own assets or take

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the individual's assets and put them into
joint accounts with yourself. So you can't

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take a bank account that's in the
principal's name and add your name as a

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joint owner. You can put your
name on it as the agent under the

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power of attorney, but you can't
put your name on it as a joint

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owner again unless document specifically allows you
to do that. Since you're going to

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have to provide accountings, that means
you're going to have to maintain records.

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You have to maintain records of the
transactions that you take, receipts, disbursements,

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investments, bank statements, checks,
all of those things. You have

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an obligation under Michigan law to maintain
those records. Also, you might be

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liable for any damage or loss to
the principle and subject to any appropriate remedies

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if you breach that fiduciary duty,
going back that duty that you have to

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be doing things in the best interest
of the principle. If you breach that

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fiduciary duty, you can be held
accountable for that. You might in fact

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be subject to civil or and or
criminal penalties if you violate your duties to

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the principle. So we have a
number of restrictions if you will under Michigan

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law that apply in addition to those
overall restrictions, specifically to your serving as

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the financial power of attorney. Likewise, Michigan has certain restrictions relative to the

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agent or patient advocate who's serving under
a medical power of attorney. As I

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noted before, the patient can in
fact revoke a medical power of attorney even

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if they are incompetent. That's under
Michigan law. Understand that the medical power

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of attorney is not effective unless the
patient is unable to participate in decisions regarding

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his or her medical or mental health. That financial power of attorney, I

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can make it effective right now.
I can give you the authority to sell

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my home today or to manage my
bank accounts today, if I chose to

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do that. But a medical power
of attorney in the state of Michigan only

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becomes effective when the patient is unable
to participate in his or her own medical

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or mental health care decisions. Also, the patient advocate decision, even though

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normally they end at death, if
there is a provision in the document allowing

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for anatomical gifts, that authority is
going to be able to be exercised by

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you even after the patient's death.
Next, the patient advocate cannot shall not

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exercise powers concerning the patient's care or
custody, or medical treatment or mental health

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treatment that the patient could not have
exercised on his or her own behalf.

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Remember you're serving as a fiduciary.
You're doing what's at the best interest in

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this case of the patient, and
you do not have any authority to make

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any decisions that the patient him or
her could himself or herself could not make.

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Also, that treatment that you decide
to have or treatment that you decide

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to withdraw, you cannot withdraw or
withhold treatment from a patient who's pregnant that

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would result in the pregnant patient's death. You can make decisions to withhold or

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withdraw treatment that would allow the patient
to die if they're not pregnant and it's

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not going to result in their death, but again, only if the patient

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has expressed in a clear and convincing
manner that the patient advocate is authorized to

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make such a decision and that the
patient acknowledges that a decision could or would

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allow them to die. So the
doc itself has to include language where the

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maker of the document expresses in a
clear and convincing language that you are authorized

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to make the decision to withhold or
withdraw treatment that would allow them to die,

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and the patient acknowledges that the decision
could or would allow them to die.

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So you don't just have the ability
to say, hey, I'm going

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to withdraw treatment. You need to
look at the document and make sure that

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there's specific language in the document that's
going to comport with this very specific requirement

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under Michigan law. Finally, a
patient advocate under a power of attorney for

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healthcare cannot shall not receive any compensation
for serving for performing services. Whoever they

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may be reimbursed actual and necessary expenses. Maybe you have to travel back to

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take care of a patient, or
you have some other expenses that are incurred,

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but you cannot be paid for the
time that you serve. Contrast that

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with the financial power of attorney.
Under a financial power of attorney, an

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agent can be paid for serving as
a financial power of attorney, but under

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the healthcare power you cannot be paid. So you have some very specific limitations

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under Michigan law that do apply to
your ability as the patient advocate under that

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health care power of attorney. And
then, in addition to, if you

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will, limitations that would be set
forth in the documents, in addition to

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the limitations that I've talked about that
apply are set forth under the law in

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the state in Michigan, you're also
kind to potentially have, under some circumstances,

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what I would call outside limitations,
and what do I mean by those?

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A bank might not be willing to
accept that financial power of attorney.

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Ever. Now, and then we
run into that where someone takes a financial

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power of attorney into a bank.
It's appropriate under Michigan law, it's appropriately

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executed, but for some reason the
bank is not willing to accept it,

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or perhaps a broker isn't willing to
accept it, or in the medical arena,

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it might be that a medical provider
is not willing to accept your appointment

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under that power of attorney for healthcare. Now, what do you do if

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that happens. Well, Unfortunately,
under Michigan law, you cannot force a

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bank to accept the power of attorney
if they're not willing to accept it.

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And you might not be able to
force a doctor to accept your power as

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a patient advocate if they're not willing
to accept it. But what those documents

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at least do is they give you
the right to go into court, to

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be at the head of the line
to ask a court to give you the

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authority. It might be that they're
going to have to point you now as

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a guardian for the person so that
you can make those medical decisions, or

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they're going to point you as a
conservator over the assets so that you can

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make those decisions. Because once you're
appointed by a probate court, if you're

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appointed the conservator, the bank has
to accept your authority. If you're appointed

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as the guardian, the medical provider
has to accept that authority. So in

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that case where someone says no,
we're not willing to accept this, it's

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not the end of the road.
But it does give you the right to

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be first in line to go to
the probate court to get yourself whatever authorities

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you do require. Again, so
what do we conclude your power of attorney

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is not unlimited. We need to
look at the document. We need to

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understand what limitations the law places on
those documents. We need to understand what

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practical limitations sometimes apply. Bottom line
is this, make sure that if you

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are appointed and are going to operate
under a power of attorney, whether it's

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financial or medical, make sure that
you understand the limitations on your authority to

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act as power of attorney so that
you can assure yourself that you are not

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violating those limitations. Of course,
if you have questions about your powers of

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attorney or interested in having powers of
attorney prepared for you, a man and

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I would be honored to have the
opportunity to help you. We can also

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help you protect your loved ones by
putting together your state plan or perhaps a

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mending a current plan that you have, or assisting you in settling a loved

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one's estate. Information on how it
is that we can be of assistance to

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you is available at our website,
DOYLELAWPC dot com. There you will find

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information on scheduling in person consultations or
virtual consultations via zoom Er telephone. Of

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course, we have our legal Store
at the website where you can order individual

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legal dot com documents. Perhaps all
you need now is a new power of

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attorney. You can go to the
legal store and order that document online.

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So again I invite you visit Doyle
LAWPC dot com where you will find more

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information. And I think that is
going to be it for today's show.

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As always, oh, if you
have a comment about our program, a

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topic that you'd like to have me
discuss, or questions that you'd like to

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have answered, please send me an
email Tom at Tuesday with Tom dot com

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and we invite you follow us on
Facebook and have your friends and family follow

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us on Facebook. That would be
Tuesday with Tom and the office Facebook page

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is Doyle Law PC. Remember two. The program is available on Apple Podcasts,

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Spotify, Google Podcasts, iHeartRadio,
Spreaker, probably anywhere that you listen

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to podcast regular Lee, you are
going to find Tuesday with Time and you

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can always ask your smart speaker to
play Tuesday with Tom. Well, thanks

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again for spending some of your time
with us today. I hope that you

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have an awesome day and an awesome
week in Michigan. Stay safe. Tuesday

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with Tom has been brought to you
by the estate planning attorneys at Doyle Law

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PC. To learn how we can
help you with your estate plan or with

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settling a loved one's estate, please
call us today at five one seven three

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two three seven three sixty six.
That's five one seven three two three seven

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three six six