How to Make a Power of Attorney in Michigan FAQ

What Is a Power of Attorney?

A financial power of attorney in Michigan is a legal document that allows one person, the “principal,” to designate another person as their “agent” or “attorney-in-fact” to make financial decisions on their behalf. The benefit of having a power of attorney is that you decide who should be in charge. If you are suddenly incapacitated and you don’t have a durable power of attorney, your family would have to file a petition for conservatorship and have a court appoint someone as your conservator. For health care decisions in Michigan, you would name a patient advocate in a Patient Advocate Designation.

Who Can Be My Agent or Attorney in Fact?

In most states, this role is called an “agent.” In Michigan, it is called an “attorney in fact” (even though they are not an attorney). You can use these terms interchangeably. A competent adult may serve as your attorney in fact, you can choose a family member, friend, lawyer, or accountant. You may also name a financial institution with trust powers. Selecting an attorney in fact is an important decision. Choose someone you trust who is responsible and organized. Your attorney in fact must act in good faith, and your best interest, or they may be liable.

Avoid using co-attorneys in fact. If you require your co-attorneys in fact to act jointly, they may disagree, and then nothing gets accomplished. If you allow them to act independently, they can reverse each other’s actions, causing confusion. It is better to name one person as your primary attorney in fact and name another person as your backup or successor attorney in fact.

What Can My Attorney in Fact Do in Michigan?

You decide what powers to grant your attorney in fact. These can range from paying bills to filing tax returns or buying and selling property. Typically, you may authorize your attorney in fact to handle transactions involving:

• Real Property (Real Estate)
• Tangible Personal Property
• Stocks and Bonds
• Commodities and Options
• Banks and Other Financial Institutions
• Operation of Entity or Business
• Insurance and Annuities
• Estates, Trusts, and Other Beneficial Interests
• Claims and Litigation
• Personal and Family Maintenance
• Benefits from Governmental Programs or Civil or Military Service
• Retirement Plans
• Taxes

There are also powers that allow your attorney in fact to reduce your estate. This may be an objective if you want your attorney in fact to reduce your estate to minimize estate taxes or to qualify you for government benefits such as Medicaid. You can empower your attorney in fact to:

• Create, amend, revoke, or terminate a living trust
• Make a gift, subject to the limitations of Michigan law and your instructions
• Create or change rights of survivorship
• Create or change a beneficiary designation
• Authorize another person to exercise the authority granted under the power of attorney
• Waive your right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
• Exercise fiduciary powers that you have authority to delegate
• Access the content of your electronic communications
• Disclaim or refuse an interest in property, including a power of appointment

Carefully consider what powers you want your attorney in fact to have because they are responsible for your money and your life.

What Is a Durable Power of Attorney in Michigan?

A durable power of attorney is a power of attorney that remains effective even when you are incapacitated. For a power of attorney to be durable in Michigan, you must include the words “This power of attorney is not affected by the principal’s subsequent disability or incapacity, or by the lapse of time” or “This power of attorney is effective upon the disability or incapacity of the principal,” or similar words to that effect.

When Is the Power of Attorney Effective?

Generally, a power of attorney is effective upon signing unless you state in your power of attorney that it is effective upon a specific date or event. This is called a “springing power of attorney” and becomes effective if the date or event occurs, like the principal’s incapacity, for example.

When Does the Power of Attorney End?

A power of attorney ends when you die or are incapacitated, and you have a non-durable power of attorney. There are other times when your power of attorney ends, such as:

• Your attorney in fact dies, and there is no successor attorney in fact
• Your attorney in fact is incapacitated, and there is no successor attorney in fact
• You revoke the power of attorney
• Your power of attorney has a termination date or event, and that date or event occurs

Additionally, if you name your spouse as your attorney in fact and you divorce or a court declares your marriage void, their authority to act as your attorney in fact automatically ends.

Does Michigan Have a Statutory Power of Attorney?

No. Michigan does not provide a statutory POA form. However, you must follow Michigan’s statutory requirements to have a valid power of attorney. You can either use state-specific forms customized to your needs or hire an estate planning attorney.

Can I Make My Own Power of Attorney in Michigan?

Yes. You are not required to use an attorney, but there are a few things to know before making a power of attorney. If you know who you want as your attorney in fact and the powers you want them to have, you can use an online estate planning formation service. However, if you don’t know who to name as your attorney in fact or other questions, you should consult with an attorney for legal advice.

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How Do I Make My Power of Attorney Valid in Michigan?

You, as the principal, must be 18 or older and mentally competent. You must sign your power of attorney in front of two witnesses, neither of whom is named as an attorney in fact or successor attorney in fact, who also sign the document. If you can’t sign your power of attorney, a notary may sign on your behalf if you direct them to and they are in your physical presence.

Do I Have to Notarize My Power of Attorney in Michigan?

While Michigan allows you to sign your power of attorney with two witnesses, it is better to have a notary public attest to your signature. A notary verifies your identity and confirms you are signing it voluntarily and under your own power.

What Should I Do After Signing My Power of Attorney?

Once you sign your power of attorney, give copies to your attorney in fact and any successor attorney in fact and third parties that you want your attorney in fact to deal with. Before your attorney in fact exercises authority, they must sign an acknowledgement of their responsibilities under Section 700.5501(4) of the Michigan Compiled Laws. Additionally, some third parties may require your attorney in fact to complete an Agent Certification Form in which they certify that the power of attorney is effective and they have the authority to serve as your attorney in fact.

Does an Attorney in Fact Get Paid in Michigan?

In Michigan, your attorney in fact is entitled to reimbursement for reasonable expenses incurred on your behalf. However, they may only receive compensation for their time if you provide for it in your power of attorney or as ordered by a court.

Is My Michigan Power of Attorney Valid in Another State?

Yes. If you create a valid power of attorney following Michigan’s laws, other states should honor your power of attorney.

Can I Revoke My Michigan Power of Attorney?

Yes. You can revoke your power of attorney at any time as long as you are mentally competent. To revoke a power of attorney, create a “Revocation of Power of Attorney,” which is a document stating your intent to cancel your power of attorney and your attorney in fact’s authority. Include information from your original power of attorney document such as the date signed and the name of the attorney in fact. Sign this document before a notary and distribute copies to your attorney in fact and to all banks and third parties who have the original.

What Estate Planning Documents Should I Have in Michigan?

A financial power of attorney is an important first step in estate planning. If you are suddenly incapacitated, a power of attorney allows you to control who speaks for you, what powers your attorney in fact has, and when your power of attorney begins and ends. There are two other documents to form a comprehensive estate plan: a health care directive and a last will and testament.

A health care directive or advance directive, known as a “Designation of Patient Advocate” in Michigan, combines a medical power of attorney and a living will. You name someone to access your healthcare records, speak to medical providers, and make medical decisions on your behalf. You can also provide instructions for any medical treatments or life-prolonging measures you want when you have an end-stage illness or terminal condition. Making these decisions helps your loved ones know what you want.

A last will and testament is a document used after you die. In your will, you choose who you want to manage your estate (your personal representative), who will inherit your property (your beneficiaries), and who will care for your minor children and pets (guardian/caregiver). If you die without a will, called “intestate,” a court must follow state intestacy laws to determine who inherits your estate and chooses a guardian for your children.

Fortunately, making a valid power of attorney and creating other Michigan estate planning documents is easy with online estate planning templates.