Who Can Witness My Durable Power of Attorney? (Episode #290)

0:31 Well, good afternoon, Michiganders. Today is Tuesday, September twenty six, twenty twenty three, and of course this is Tuesday with Tom, Michigan's only weekly podcast where we answer your questions about a state planning and a state settlement in Michigan, and we don't send you a bill. I'm your host, Tom Doyle, estate planning attorney, lifelong Michigan resident, an ambassador for all things good in this great state of Michigan. Welcome, welcome, welcome to today's program. Well, if you listen to last week's episode, or we're curious what last week's episode was, I answered the question will my testamentary trust avoid probate? So if you have a testamentary trust, or you think you have a testamentary trust, or you're thinking about having a testamentary trust, I invite you to listen to last week's episode where I answer that important question.

1:38 And if you listened. Over the last few weeks, I've had almost kind of a series of episodes now about witnessing various documents. I talked about witnessing your will and witnessing your health care Power of attorney. Today's topic is who can witness my dual power of attorney. But please remember what I'm about to discuss 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's appropriate for you and your estate plan. Who can witness your durable power of attorney?

2:34 Well, let's let's a couple of things. First. If you've listened to previous podcast or if you haven't, I've talked about durable powers of attorney a number of times during podcasts. On episode one thirty three, I talked about the limitations that your agent has in operating under a durable power of attorney. The topic was your power of attorney is not unlimited, and then in episode two twenty nine, I talked about when does your power of attorney begin and end? So, besides today's topic about who can witness, you might have other questions about what limitations you might have if you're operating under a power of attorney, or you might have questions about when do these powers of attorney actually begin and end? But something else that's important. We're talking about durable powers of attorney. You can have a power of attorney that is not durable so a durable power of attorney and a power of attorney are not one and the same. So what is a durable power of attorney? We're basically talking about financial matters where you're giving somebody authority over your finances, selling real estate, all those kinds of things that we're looking at doing these documents. A durable power of attorney, though, has to have under Michigan laws, certain

4:09 language in it, such as, this power of attorney is not affected by the principles subsequent disability or incapacity, or by the lapse of time, or something like this power of attorney is effective upon the disability or incapacity of the principle, or basically similar words, showing that it is your intent as the principle that the authority that you are conferring can be exercised, notwithstanding whether or not you are disabled or incapacitated, or simply because time has passed. So if you don't have any such language inside your durable power, inside your power of attorney, it is not durable, which would mean if it is not a durable power of attorney, the authority that you grant to your agent named would end if you become incapacitated, while most clients have a power of attorney in place, for example for finances, so someone can manage their financial affairs if they're incapacity. So again important certain language has to be in that power of attorney to make it durable. The fact that the heading says durable power

5:39 of attorney, and I've seen these. I've seen documents presented to our office where the caption is durable power of attorney, but there's nothing in the document like the language that I just quoted from the statute, or nothing in the document that indicates that it is to be effective even in the event of in capacity. So with that in mind, let's talk about executing that durable power of attorney. First, it has to be dated, so there has to be a place for it to be dated. And secondly, it has to be signed voluntarily by the principle or signed by a notary public on the principle's behalf in accordance with the Michigan Notary Statute. So again it has to be dated, and it either has to be signed voluntarily by the principle or signed by a notary public on the principle's behalf in accordance with the Michigan Notary law also that durable power of attorney has to either be signed in the presence of two witnesses, neither of whom is the named attorney effact, and both of whom also signed the durable power of attorney. So one option signed in the

7:11 presence of two witnesses. Again, it can't be somebody who's named as the agent or attorney fact and the document and both witnesses also have to sign the durable power of attorney, or alternatively, it has to be acknowledged by the principle before a notary public, and that notary public has to endorse on the durable power of attorney, certification and acknowledgement and the true date of taking the acknowledgement. Basically, they have to notarize the principle's signature. So again not a lot of requirements relative to who can witness your durable power of attorney.

8:01 Let's review again. You have to sign it voluntarily or have it signed by a notary public on the principle's behalf. Under the Michigan notary statue, and as far as witnessing is concerned, it has to either be signed in the presence of two witnesses, and neither of those witnesses can be named in the document as the attorney in fact, and both of those witnesses have to sign the durable power of attorney or And since it's an or, this means if you don't have it witnessed, then what you need is to have it acknowledged by the principle basically before a notary public. So you can have a durable power of attorney that's effective if it's appropriately signed by two witnesses, or effective if it's appropriately notarized by a notary public. So not much by way of requirements, But as I've noted in other episodes, prudence says, when you have somebody who's going to witness your documents, basically they are attesting to the fact that you signed it, all right, and so it would be preferable to have them be adults so that they understand the importance of what they are doing in witnessing the document. Again, not a lot by way of requirement

9:33 on who can actually witness your durable power of attorney to have it effective. As always, if you have questions about a power of attorney and whether or not it's how to have it executed. Certainly, in our office, when we prepare durable powers of attorney, we will have a location for them to be notarized. Oftentimes too, as a practical matter, let's just talk about a practical matter. When you take or your agent takes your durable power of attorney to a bank, the bank might have their own requirements on what they need to have in that durable power of attorney for it to be accepted by them, and most likely any bank or credit union that you're going to deal with, they are going to want it to be notarized. Not just not just have two witnesses on it, They're going to normally want the document to be notarized. So while legally Michigan law doesn't require two witnesses, as a practical matter, you're likely going to find that your financial institution where the power of attorney is going to be used, is going to require it to be notarized. That's why in our office we always have the documents notarized in anticipation of what a bank or credit union is going to require. Of Course,

11:24 remember too that a man and I would be honored to have the opportunity to help you protect your loved ones by either putting together your state plan, amending a current plan that you're already have, or assisting you in settling a loved ones a state. Simply go to our website Doyle LAWPC dot com. There you're going to find information on how to schedule an in person consultation at our East Lansing office or a virtual consultation via zoom or telephone. You're also going to find the Legal Store, that is again where you can order individual documents.

12:07 Maybe all you need is a new durable power of attorney, you don't need all the other documents that go along with it. Visit the Legal Store and you'll see how it is that you can order, just for example, a legal power of attorney to prepared for you and delivered to your email. You'll also find information on how that can be done through the office Facebook page as well. Again, simply visit Doyle LAWPC dot com for more information and to schedule your consultation. And I think that's going to be for today's show.

12:56 Not very lengthy today and talking about witnesses, but in important topic because many of you might actually decide to download powers of attorney from the Internet or have an online service like legal Zoom prepare them for you. I'm not saying we recommend that, but I know many of the listeners might in fact do what So make sure if you're going to do that, that you have those documents properly executed and witnessed. 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, please send me an email Tom at Tuesday with Toom dot com. We invite you follow us on Facebook and invite your family and friends to follow us. That would be Tuesday with Tom and of course the office is Doyle Law PC. Tuesday with Tom is also available on Apple Podcasts, Spotify, Google Podcast, iHeartRadio, Spreaker, probably any others where you normally listen to your podcast. You're going to find us, and if you don't, shoot me an email at Tuesday with Tom and we'll see if we can't have the podcast made available on that service. And of course, as always, you can ask your smart speaker to play Tuesday with Tom.

14:18 Well, thanks again for spending some of your time with us today. As always, I hope that you have an awesome day and an awesome week in Michigan. Stay Safe Tuesday with Tom has been brought to you by the estate planning attorneys at Doyle Law PC. To learn how we can help you with your estate plan or with settling a loved ones estate, please call us today at five one seven three two three seven three six six. That's five one seven, three two three seven three six six