Sept. 26, 2023
Who Can Witness My Durable Power of Attorney? (Episode #290)
A witness can serve an important function in the execution of your Durable Power of Attorney. Be sure you understand the execution and witnessing requirement for your Durable Power of Attorney.
A witness can serve an important function in the execution of your Durable Power of Attorney. Be sure you understand the execution and witnessing requirement for your Durable Power of Attorney.
WEBVTT
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Well, good afternoon, Michiganders.
Today is Tuesday, September twenty six,
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00:00:37.719 --> 00:00:43.320
twenty twenty three, and of course
this is Tuesday with Tom, Michigan's only
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00:00:43.359 --> 00:00:48.759
weekly podcast where we answer your questions
about a state planning and a state settlement
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00:00:48.759 --> 00:00:53.399
in Michigan, and we don't send
you a bill. I'm your host,
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00:00:53.600 --> 00:00:58.759
Tom Doyle, estate planning attorney,
lifelong Michigan resident, an ambassador for all
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00:00:58.840 --> 00:01:06.519
things good in this great state of
Michigan. Welcome, welcome, welcome to
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00:01:06.519 --> 00:01:11.760
today's program. Well, if you
listen to last week's episode, or we're
8
00:01:11.760 --> 00:01:19.799
curious what last week's episode was,
I answered the question will my testamentary trust
9
00:01:21.200 --> 00:01:26.239
avoid probate? So if you have
a testamentary trust, or you think you
10
00:01:26.319 --> 00:01:30.840
have a testamentary trust, or you're
thinking about having a testamentary trust, I
11
00:01:30.959 --> 00:01:38.120
invite you to listen to last week's
episode where I answer that important question.
12
00:01:38.120 --> 00:01:42.840
And if you listened. Over the
last few weeks, I've had almost kind
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00:01:42.879 --> 00:01:49.439
of a series of episodes now about
witnessing various documents. I talked about witnessing
14
00:01:49.480 --> 00:01:57.239
your will and witnessing your health care
Power of attorney. Today's topic is who
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00:01:57.920 --> 00:02:04.599
can witness my dual power of attorney. But please remember what I'm about to
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00:02:04.640 --> 00:02:09.840
discuss is, as always for educational
purposes only. It is not intended to
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00:02:09.919 --> 00:02:15.719
be legal advice. You need to
work with your attorney to determine what's appropriate
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00:02:15.800 --> 00:02:32.840
for you and your estate plan.
Who can witness your durable power of attorney?
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00:02:34.080 --> 00:02:38.520
Well, let's let's a couple of
things. First. If you've listened
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00:02:38.560 --> 00:02:44.280
to previous podcast or if you haven't, I've talked about durable powers of attorney
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00:02:44.599 --> 00:02:50.120
a number of times during podcasts.
On episode one thirty three, I talked
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00:02:50.159 --> 00:02:57.360
about the limitations that your agent has
in operating under a durable power of attorney.
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00:02:57.719 --> 00:03:04.400
The topic was your power of attorney
is not unlimited, and then in
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00:03:04.479 --> 00:03:08.120
episode two twenty nine, I talked
about when does your power of attorney begin
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and end? So, besides today's
topic about who can witness, you might
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have other questions about what limitations you
might have if you're operating under a power
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of attorney, or you might have
questions about when do these powers of attorney
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actually begin and end? But something
else that's important. We're talking about durable
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powers of attorney. You can have
a power of attorney that is not durable
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so a durable power of attorney and
a power of attorney are not one and
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the same. So what is a
durable power of attorney? We're basically talking
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about financial matters where you're giving somebody
authority over your finances, selling real estate,
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all those kinds of things that we're
looking at doing these documents. A
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durable power of attorney, though,
has to have under Michigan laws, certain
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language in it, such as,
this power of attorney is not affected by
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the principles subsequent disability or incapacity,
or by the lapse of time, or
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something like this power of attorney is
effective upon the disability or incapacity of the
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principle, or basically similar words,
showing that it is your intent as the
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principle that the authority that you are
conferring can be exercised, notwithstanding whether or
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not you are disabled or incapacitated,
or simply because time has passed. So
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if you don't have any such language
inside your durable power, inside your power
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of attorney, it is not durable, which would mean if it is not
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a durable power of attorney, the
authority that you grant to your agent named
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would end if you become incapacitated,
while most clients have a power of attorney
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in place, for example for finances, so someone can manage their financial affairs
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if they're incapacity. So again important
certain language has to be in that power
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of attorney to make it durable.
The fact that the heading says durable power
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of attorney, and I've seen these. I've seen documents presented to our office
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where the caption is durable power of
attorney, but there's nothing in the document
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like the language that I just quoted
from the statute, or nothing in the
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document that indicates that it is to
be effective even in the event of in
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capacity. So with that in mind, let's talk about executing that durable power
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of attorney. First, it has
to be dated, so there has to
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be a place for it to be
dated. And secondly, it has to
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be signed voluntarily by the principle or
signed by a notary public on the principle's
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behalf in accordance with the Michigan Notary
Statute. So again it has to be
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dated, and it either has to
be signed voluntarily by the principle or signed
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by a notary public on the principle's
behalf in accordance with the Michigan Notary law
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also that durable power of attorney has
to either be signed in the presence of
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two witnesses, neither of whom is
the named attorney effact, and both of
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whom also signed the durable power of
attorney. So one option signed in the
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presence of two witnesses. Again,
it can't be somebody who's named as the
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agent or attorney fact and the document
and both witnesses also have to sign the
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durable power of attorney, or alternatively, it has to be acknowledged by the
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principle before a notary public, and
that notary public has to endorse on the
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durable power of attorney, certification and
acknowledgement and the true date of taking the
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acknowledgement. Basically, they have to
notarize the principle's signature. So again not
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a lot of requirements relative to who
can witness your durable power of attorney.
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Let's review again. You have to
sign it voluntarily or have it signed by
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a notary public on the principle's behalf. Under the Michigan notary statue, and
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as far as witnessing is concerned,
it has to either be signed in the
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presence of two witnesses, and neither
of those witnesses can be named in the
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document as the attorney in fact,
and both of those witnesses have to sign
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the durable power of attorney or And
since it's an or, this means if
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you don't have it witnessed, then
what you need is to have it acknowledged
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by the principle basically before a notary
public. So you can have a durable
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power of attorney that's effective if it's
appropriately signed by two witnesses, or effective
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if it's appropriately notarized by a notary
public. So not much by way of
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requirements, But as I've noted in
other episodes, prudence says, when you
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have somebody who's going to witness your
documents, basically they are attesting to the
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fact that you signed it, all
right, and so it would be preferable
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to have them be adults so that
they understand the importance of what they are
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doing in witnessing the document. Again, not a lot by way of requirement
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on who can actually witness your durable
power of attorney to have it effective.
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As always, if you have questions
about a power of attorney and whether or
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not it's how to have it executed. Certainly, in our office, when
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we prepare durable powers of attorney,
we will have a location for them to
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be notarized. Oftentimes too, as
a practical matter, let's just talk about
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a practical matter. When you take
or your agent takes your durable power of
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attorney to a bank, the bank
might have their own requirements on what they
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need to have in that durable power
of attorney for it to be accepted by
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them, and most likely any bank
or credit union that you're going to deal
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with, they are going to want
it to be notarized. Not just not
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just have two witnesses on it,
They're going to normally want the document to
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be notarized. So while legally Michigan
law doesn't require two witnesses, as a
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practical matter, you're likely going to
find that your financial institution where the power
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of attorney is going to be used, is going to require it to be
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notarized. That's why in our office
we always have the documents notarized in anticipation
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of what a bank or credit union
is going to require. Of Course,
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remember too that a man and I
would be honored to have the opportunity to
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help you protect your loved ones by
either putting together your state plan, amending
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a current plan that you're already have, or assisting you in settling a loved
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ones a state. Simply go to
our website Doyle LAWPC dot com. There
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you're going to find information on how
to schedule an in person consultation at our
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East Lansing office or a virtual consultation
via zoom or telephone. You're also going
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to find the Legal Store, that
is again where you can order individual documents.
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Maybe all you need is a new
durable power of attorney, you don't
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need all the other documents that go
along with it. Visit the Legal Store
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and you'll see how it is that
you can order, just for example,
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a legal power of attorney to prepared
for you and delivered to your email.
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You'll also find information on how that
can be done through the office Facebook page
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as well. Again, simply visit
Doyle LAWPC dot com for more information and
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to schedule your consultation. And I
think that's going to be for today's show.
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Not very lengthy today and talking about
witnesses, but in important topic because
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00:13:01.080 --> 00:13:09.559
many of you might actually decide to
download powers of attorney from the Internet or
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have an online service like legal Zoom
prepare them for you. I'm not saying
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we recommend that, but I know
many of the listeners might in fact do
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what So make sure if you're going
to do that, that you have those
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documents properly executed and witnessed. As
always, if you have a comment about
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00:13:30.559 --> 00:13:33.200
the program, a topic that you'd
like to have me discuss, or questions
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that you'd like to have answered,
please send me an email Tom at Tuesday
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00:13:37.320 --> 00:13:41.639
with Toom dot com. We invite
you follow us on Facebook and invite your
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00:13:41.679 --> 00:13:46.600
family and friends to follow us.
That would be Tuesday with Tom and of
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00:13:46.600 --> 00:13:52.320
course the office is Doyle Law PC. Tuesday with Tom is also available on
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Apple Podcasts, Spotify, Google Podcast, iHeartRadio, Spreaker, probably any others
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00:14:00.440 --> 00:14:03.559
where you normally listen to your podcast. You're going to find us, and
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00:14:03.679 --> 00:14:07.480
if you don't, shoot me an
email at Tuesday with Tom and we'll see
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00:14:07.480 --> 00:14:13.600
if we can't have the podcast made
available on that service. And of course,
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00:14:13.960 --> 00:14:18.679
as always, you can ask your
smart speaker to play Tuesday with Tom.
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00:14:18.759 --> 00:14:22.000
Well, thanks again for spending some
of your time with us today.
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00:14:22.399 --> 00:14:30.000
As always, I hope that you
have an awesome day and an awesome week
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00:14:30.960 --> 00:14:41.600
in Michigan. Stay Safe Tuesday with
Tom has been brought to you by the
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00:14:41.759 --> 00:14:46.639
estate planning attorneys at Doyle Law PC. To learn how we can help you
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00:14:46.679 --> 00:14:50.200
with your estate plan or with settling
a loved ones estate, please call us
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00:14:50.240 --> 00:14:54.759
today at five one seven three two
three seven three six six. That's five
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00:14:54.840 --> 00:14:58.720
one seven, three two three seven
three six six
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00:00:31.079 --> 00:00:37.039
Well, good afternoon, Michiganders.
Today is Tuesday, September twenty six,
2
00:00:37.719 --> 00:00:43.320
twenty twenty three, and of course
this is Tuesday with Tom, Michigan's only
3
00:00:43.359 --> 00:00:48.759
weekly podcast where we answer your questions
about a state planning and a state settlement
4
00:00:48.759 --> 00:00:53.399
in Michigan, and we don't send
you a bill. I'm your host,
5
00:00:53.600 --> 00:00:58.759
Tom Doyle, estate planning attorney,
lifelong Michigan resident, an ambassador for all
6
00:00:58.840 --> 00:01:06.519
things good in this great state of
Michigan. Welcome, welcome, welcome to
7
00:01:06.519 --> 00:01:11.760
today's program. Well, if you
listen to last week's episode, or we're
8
00:01:11.760 --> 00:01:19.799
curious what last week's episode was,
I answered the question will my testamentary trust
9
00:01:21.200 --> 00:01:26.239
avoid probate? So if you have
a testamentary trust, or you think you
10
00:01:26.319 --> 00:01:30.840
have a testamentary trust, or you're
thinking about having a testamentary trust, I
11
00:01:30.959 --> 00:01:38.120
invite you to listen to last week's
episode where I answer that important question.
12
00:01:38.120 --> 00:01:42.840
And if you listened. Over the
last few weeks, I've had almost kind
13
00:01:42.879 --> 00:01:49.439
of a series of episodes now about
witnessing various documents. I talked about witnessing
14
00:01:49.480 --> 00:01:57.239
your will and witnessing your health care
Power of attorney. Today's topic is who
15
00:01:57.920 --> 00:02:04.599
can witness my dual power of attorney. But please remember what I'm about to
16
00:02:04.640 --> 00:02:09.840
discuss is, as always for educational
purposes only. It is not intended to
17
00:02:09.919 --> 00:02:15.719
be legal advice. You need to
work with your attorney to determine what's appropriate
18
00:02:15.800 --> 00:02:32.840
for you and your estate plan.
Who can witness your durable power of attorney?
19
00:02:34.080 --> 00:02:38.520
Well, let's let's a couple of
things. First. If you've listened
20
00:02:38.560 --> 00:02:44.280
to previous podcast or if you haven't, I've talked about durable powers of attorney
21
00:02:44.599 --> 00:02:50.120
a number of times during podcasts.
On episode one thirty three, I talked
22
00:02:50.159 --> 00:02:57.360
about the limitations that your agent has
in operating under a durable power of attorney.
23
00:02:57.719 --> 00:03:04.400
The topic was your power of attorney
is not unlimited, and then in
24
00:03:04.479 --> 00:03:08.120
episode two twenty nine, I talked
about when does your power of attorney begin
25
00:03:09.080 --> 00:03:15.439
and end? So, besides today's
topic about who can witness, you might
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00:03:15.479 --> 00:03:20.639
have other questions about what limitations you
might have if you're operating under a power
27
00:03:20.719 --> 00:03:24.159
of attorney, or you might have
questions about when do these powers of attorney
28
00:03:24.280 --> 00:03:31.759
actually begin and end? But something
else that's important. We're talking about durable
29
00:03:32.199 --> 00:03:39.719
powers of attorney. You can have
a power of attorney that is not durable
30
00:03:40.360 --> 00:03:46.120
so a durable power of attorney and
a power of attorney are not one and
31
00:03:46.159 --> 00:03:51.560
the same. So what is a
durable power of attorney? We're basically talking
32
00:03:52.000 --> 00:03:58.240
about financial matters where you're giving somebody
authority over your finances, selling real estate,
33
00:03:58.319 --> 00:04:02.039
all those kinds of things that we're
looking at doing these documents. A
34
00:04:02.840 --> 00:04:09.599
durable power of attorney, though,
has to have under Michigan laws, certain
35
00:04:09.759 --> 00:04:15.560
language in it, such as,
this power of attorney is not affected by
36
00:04:15.600 --> 00:04:24.160
the principles subsequent disability or incapacity,
or by the lapse of time, or
37
00:04:24.199 --> 00:04:31.920
something like this power of attorney is
effective upon the disability or incapacity of the
38
00:04:31.959 --> 00:04:39.319
principle, or basically similar words,
showing that it is your intent as the
39
00:04:39.399 --> 00:04:48.439
principle that the authority that you are
conferring can be exercised, notwithstanding whether or
40
00:04:48.519 --> 00:04:56.680
not you are disabled or incapacitated,
or simply because time has passed. So
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00:04:56.800 --> 00:05:00.720
if you don't have any such language
inside your durable power, inside your power
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00:05:00.759 --> 00:05:05.439
of attorney, it is not durable, which would mean if it is not
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00:05:05.680 --> 00:05:13.560
a durable power of attorney, the
authority that you grant to your agent named
44
00:05:13.680 --> 00:05:20.639
would end if you become incapacitated,
while most clients have a power of attorney
45
00:05:20.680 --> 00:05:27.920
in place, for example for finances, so someone can manage their financial affairs
46
00:05:28.439 --> 00:05:33.600
if they're incapacity. So again important
certain language has to be in that power
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00:05:33.600 --> 00:05:39.759
of attorney to make it durable.
The fact that the heading says durable power
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00:05:39.759 --> 00:05:43.399
of attorney, and I've seen these. I've seen documents presented to our office
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00:05:43.839 --> 00:05:48.160
where the caption is durable power of
attorney, but there's nothing in the document
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00:05:49.759 --> 00:05:54.399
like the language that I just quoted
from the statute, or nothing in the
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00:05:54.480 --> 00:06:00.399
document that indicates that it is to
be effective even in the event of in
52
00:06:00.759 --> 00:06:06.839
capacity. So with that in mind, let's talk about executing that durable power
53
00:06:08.199 --> 00:06:12.279
of attorney. First, it has
to be dated, so there has to
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00:06:12.319 --> 00:06:15.680
be a place for it to be
dated. And secondly, it has to
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00:06:15.720 --> 00:06:26.240
be signed voluntarily by the principle or
signed by a notary public on the principle's
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00:06:26.319 --> 00:06:31.639
behalf in accordance with the Michigan Notary
Statute. So again it has to be
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00:06:31.720 --> 00:06:39.439
dated, and it either has to
be signed voluntarily by the principle or signed
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00:06:39.519 --> 00:06:46.040
by a notary public on the principle's
behalf in accordance with the Michigan Notary law
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00:06:48.000 --> 00:06:57.399
also that durable power of attorney has
to either be signed in the presence of
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00:06:57.519 --> 00:07:04.319
two witnesses, neither of whom is
the named attorney effact, and both of
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00:07:04.360 --> 00:07:11.120
whom also signed the durable power of
attorney. So one option signed in the
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00:07:11.160 --> 00:07:15.519
presence of two witnesses. Again,
it can't be somebody who's named as the
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00:07:15.639 --> 00:07:23.879
agent or attorney fact and the document
and both witnesses also have to sign the
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00:07:24.000 --> 00:07:31.959
durable power of attorney, or alternatively, it has to be acknowledged by the
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00:07:32.079 --> 00:07:40.560
principle before a notary public, and
that notary public has to endorse on the
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durable power of attorney, certification and
acknowledgement and the true date of taking the
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acknowledgement. Basically, they have to
notarize the principle's signature. So again not
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a lot of requirements relative to who
can witness your durable power of attorney.
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Let's review again. You have to
sign it voluntarily or have it signed by
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a notary public on the principle's behalf. Under the Michigan notary statue, and
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as far as witnessing is concerned,
it has to either be signed in the
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presence of two witnesses, and neither
of those witnesses can be named in the
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document as the attorney in fact,
and both of those witnesses have to sign
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the durable power of attorney or And
since it's an or, this means if
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you don't have it witnessed, then
what you need is to have it acknowledged
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by the principle basically before a notary
public. So you can have a durable
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power of attorney that's effective if it's
appropriately signed by two witnesses, or effective
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if it's appropriately notarized by a notary
public. So not much by way of
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requirements, But as I've noted in
other episodes, prudence says, when you
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have somebody who's going to witness your
documents, basically they are attesting to the
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fact that you signed it, all
right, and so it would be preferable
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to have them be adults so that
they understand the importance of what they are
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doing in witnessing the document. Again, not a lot by way of requirement
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on who can actually witness your durable
power of attorney to have it effective.
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As always, if you have questions
about a power of attorney and whether or
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not it's how to have it executed. Certainly, in our office, when
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we prepare durable powers of attorney,
we will have a location for them to
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be notarized. Oftentimes too, as
a practical matter, let's just talk about
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a practical matter. When you take
or your agent takes your durable power of
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attorney to a bank, the bank
might have their own requirements on what they
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need to have in that durable power
of attorney for it to be accepted by
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them, and most likely any bank
or credit union that you're going to deal
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with, they are going to want
it to be notarized. Not just not
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just have two witnesses on it,
They're going to normally want the document to
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be notarized. So while legally Michigan
law doesn't require two witnesses, as a
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practical matter, you're likely going to
find that your financial institution where the power
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of attorney is going to be used, is going to require it to be
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notarized. That's why in our office
we always have the documents notarized in anticipation
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of what a bank or credit union
is going to require. Of Course,
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remember too that a man and I
would be honored to have the opportunity to
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help you protect your loved ones by
either putting together your state plan, amending
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a current plan that you're already have, or assisting you in settling a loved
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ones a state. Simply go to
our website Doyle LAWPC dot com. There
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you're going to find information on how
to schedule an in person consultation at our
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East Lansing office or a virtual consultation
via zoom or telephone. You're also going
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to find the Legal Store, that
is again where you can order individual documents.
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Maybe all you need is a new
durable power of attorney, you don't
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need all the other documents that go
along with it. Visit the Legal Store
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00:12:15.200 --> 00:12:18.519
and you'll see how it is that
you can order, just for example,
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a legal power of attorney to prepared
for you and delivered to your email.
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00:12:24.639 --> 00:12:31.159
You'll also find information on how that
can be done through the office Facebook page
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as well. Again, simply visit
Doyle LAWPC dot com for more information and
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to schedule your consultation. And I
think that's going to be for today's show.
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Not very lengthy today and talking about
witnesses, but in important topic because
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many of you might actually decide to
download powers of attorney from the Internet or
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have an online service like legal Zoom
prepare them for you. I'm not saying
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we recommend that, but I know
many of the listeners might in fact do
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what So make sure if you're going
to do that, that you have those
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documents properly executed and witnessed. As
always, if you have a comment about
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the program, a topic that you'd
like to have me discuss, or questions
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that you'd like to have answered,
please send me an email Tom at Tuesday
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with Toom dot com. We invite
you follow us on Facebook and invite your
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00:13:41.679 --> 00:13:46.600
family and friends to follow us.
That would be Tuesday with Tom and of
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course the office is Doyle Law PC. Tuesday with Tom is also available on
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Apple Podcasts, Spotify, Google Podcast, iHeartRadio, Spreaker, probably any others
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where you normally listen to your podcast. You're going to find us, and
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if you don't, shoot me an
email at Tuesday with Tom and we'll see
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if we can't have the podcast made
available on that service. And of course,
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as always, you can ask your
smart speaker to play Tuesday with Tom.
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Well, thanks again for spending some
of your time with us today.
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As always, I hope that you
have an awesome day and an awesome week
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in Michigan. Stay Safe Tuesday with
Tom has been brought to you by the
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estate planning attorneys at Doyle Law PC. To learn how we can help you
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with your estate plan or with settling
a loved ones estate, please call us
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today at five one seven three two
three seven three six six. That's five
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one seven, three two three seven
three six six
