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

 Be sure you understand how Michigan's new Uniform Power of Attorney Act, that went into effect on July 1, might require you to replace your current Power of Attorney.

Episode Transcript

(00:32):
Well, good afternoon, Michiganers.It is Tuesday, July ninth, twenty
twenty four, and this is Tuesdaywith Tom, Michigan's only weekly Internet show
where we do answer your questions aboutestate planning and estate settlement in Michigan,
and we don't send you a bill. As always, I'm your host,

(00:54):
Tom Doyle, estate planning attorney,lifelong Michigan resident, and ambassador for all
things good in this great state ofMichigan. Welcome, Welcome, Welcome to
today's program. Last episode, whya will doesn't avoid probate. It's a

(01:15):
topic that arises all the time whenAman and I are talking with clients or
perspective clients, oftentimes thinking that havinga will is a strategy for avoiding probate.
If you're thinking that or you wantto know why a will doesn't avoid
probate, I encourage you listen tolast week's episode today's show. Does Michigan's

(01:42):
new uniform power of Attorney law affectyour power of attorney? July first,
a mayor nine days ago, wehave a new statute in the state of
Michigan that controls power of attorney inthe state of Michigan. So does Michigan's

(02:04):
new uniform power of Attorney law affectyour power of attorney. Please remember,
though, that what I'm about todiscuss during the program is, as always
for educational purposes only. It isnot intended to be legal advice. You
need to work with your attorney todetermine what is appropriate for you and your

(02:27):
estate plan. Does Michigan's new uniformpower of attorney law affect your power of
attorney? Well? On July first, twenty twenty four, a mayor nine
days ago, Michigan's new uniform powerof Attorney became effective. And that new

(02:55):
statute really is designed to serve severalpurposes that were of concern apparently to the
Michigan legislature. One was attempting toprevent financial exploitation of vulnerable individuals, obviously

(03:15):
a real important matter that is goingon now where many seniors are being taken
advantage, and so a change inthe statute designed to help prevent financial exploitation
of vulnerable individuals. Another reason wasto make a standard power of attorney document

(03:37):
more accessible to Michigan residents and morewidely accepted by financial institutions. And another
reason is to because it's a UniformStatute Uniform Power of Attorney Act. It
is also intended to try and makepowers of attorney that are created in Michigan

(04:04):
more acceptable in other states. Soa number of purposes behind this new statute
that took effect on July first,nowt important. The law does not affect
does not affect any patient advocate,designation, or healthcare power of attorney document

(04:29):
where you are authorizing someone to makemedical decisions for you, or any documents
where you are a parent or guardianregarding the care, custody or property of
a mind or child. So itdoesn't affect those. We're merely talking about
durable powers of attorney in the stateof Michigan. So what does in particular

(04:55):
the new Uniform Power of Attorney Act? How does does it affect existing powers
of attorney? You've already had apower of attorney prepared for you, perhaps
by us, perhaps by another lawfirm. We have a new statute that
has now come in effect and importantto understand, does that new statute affect

(05:17):
your existing durable power of attorney?Well, a power of attorney, durable
power of attorney that was created byUS Doyle Law PC will still be valid
under this new statue, as wellas most other durable powers of attorney that

(05:38):
have been created elsewhere, will likelystill be valid under the new statute.
An important consideration when you look ata power of attorney, though, is
does it continue to be in effectif you become incapacitated. Well, most

(06:00):
clients, that's why they have adurable power of attorney. They want to
have a document in place so thatif they become incapacitated, the person that
they've named in their durable power ofattorney will be able to continue to take
care of financial matters on their behalf. So question whether or not a durable

(06:24):
power of attorney is still going tobe durable, Well, under the new
statute. Your existing durable power ofattorney will still be durable if it was
signed before a notary or signed beforetwo witnesses, neither of whom is the

(06:45):
agent nominated in the document, andit does have a provision in it indicating
that you wanted it to be durablei e. Not adversely affected by your
becoming incapacitated. If you have allof that, either notarized by a notary
or side between two witnesses, thenyour existing and if it has language in

(07:11):
it, indicating that it was yourintent that it is in fact to be
durable, then it will still bea durable power of attorney. An important
provision under the statute, though,has to do with when your durable power
of attorney is now taken to afinancial institution, perhaps your bank, a

(07:35):
credit union, or your investment advisor. You're now somebody is giving them that
durable power of attorney that you hadexecuted, and they are saying, hey,
i'm a point in this document tobegin managing the bank account, etc.
So there are new provisions in thestatue that can complicate in a way

(08:05):
a bank or credit union accepting adurable power of attorney, and that is
this a financial institution who is beingasked to accept the durable power attorney must
confirm that the document meets with theirapproval. So when your durable power of

(08:26):
attorney is provided to your bank orprovided to your financial institution, that institution
can now require additional verification, notjust the document that they are being presented
that might have been executed by youany number of years ago, but they

(08:46):
can require additional verification, which couldinclude an opinion letter from an attorney to
answer questions about the validity of thepower of attorney, and that is likely
what we are going to see happening. Most financial institutions are likely now going

(09:07):
to say, when they are presentedwith a durable power of attorney, they
are going to require what the statutesets forth as additional verification, including an
opinion letter from an attorney. Now, it doesn't do you any good to
go out and have necessarily that opinionletter from an attorney done right now,

(09:30):
because if it's not going to beused with your finance institution for a number
of years, they can always thenrequire an updated opinion letter, so affirming
that nothing has changed since the documentwas in fact prepared. So, in
our view, we are not goingto simply be including automatically opinion letters with

(09:54):
the durable powers of attorney that we'redrafting, because they might simply have to
be prepared again down the road,and it doesn't make sense for us to
do it now now. Part ofthe problem, obviously is that now,
because the bank or finance institution mightbe requiring additional verification, that can interfere

(10:18):
with the time frame in which youragent is going to be able to act
on your behalf they take your powerof attorney to the bank. Bank says,
hey, we require either, andit's going to be their decision certification
by the agent about the power ofattorney or in fact a document from the

(10:43):
letter or i'm a document from theattorney answering questions about the validity, and
in all probability they're going to wantthe letter from the attorney. That means
now that that power of attorney,the individual who's trying to exercise it now
has to go back to the attorneywho drafted the document, and presumably the

(11:09):
attorney who drafted the document. I'mnot sure an attorney is going to be
willing necessarily to provide opinion letters ondocuments they didn't draft. Most likely going
to have to go back to theattorney's office who drafted the document and get
that opinion letter from the attorney,obviously, which can all delay everything.

(11:31):
What we recommend you do now,though, to try and avoid that delay,
take your durable power of attorney thatyou've already had prepared for you.
Take it to your financial institutions.Now see if they are willing to complete
their validation process while you're still aliveand alive. Durable power of attennany,

(11:54):
I'm sorry ends when you die whileyou're still have capacity to make changes.
Let me repeat that. We recommendproviding the Durable Power Attorney to your financial
institution now so they can complete theirvalidation process while you're still able to make

(12:16):
changes in the future. If youupdate your Durable Power Attorney, then you're
going to want to make sure thatyou do, in fact, provide updated
documents to your financial institutions as soonas possible. The whole idea being proactive.
Reach out to your financial institution withyour existing document and see what it

(12:43):
is they are going to require ofyou in order to validate it at this
point in time. Another question thatarises, though, and the expectation,
is that many financial institutions and serviceprovide are now going to have excuse me,
their own version of a Durable PowerAttorney form available. So when you

(13:11):
go to your bank, or yougo to your credit union, or you
go to your finance institution, youmight be presented with their Durable Power of
Attorney form and they are going toask you to execute their Durable Power of
Attorney form. Well, under thestatute, they can't require you to sign

(13:35):
their Durable Power of attorney form ifyou already have a durable power attorney form
that complies with the new law.So if they present you, if you
go into your financial institution with anexisting power of attorney that complies with the
new law, they should not beable to insist that you execute their power

(14:01):
of attorney form. So if you'reoffered one, if you go into your
bank, credit union, financial institution, they say, hey, here's our
durable power of Attorney form. Wewant you to sign it. You shouldn't
sign it without consulting with your attorneybecause in all probability, signing the new

(14:24):
durable power of Attorney form from thebank is going to invalidate your current durable
power of Attorney form and might nothave provisions in it that would allow your
agent to act in the ways thatyou intend. So don't just take a
form from the bank because they giveit to and say, oh, I

(14:45):
better sign this one. If youhave a durable power of attorney form already,
don't sign the new one without consultingwith your attorney. Additionally, what
you're going to find is that thisnew State the Act Durable Power Attorney Form
has many choices for the type ofauthority general authority, specific authority that you're

(15:09):
going to be giving to your agent, and every choice that you make on
the form might have unintended consequences.It might interfere with your current estate plan,
might have a significant effect on yourability to do future planning to protect
assets, maybe for your spouse.So for these and many other reasons,

(15:31):
we do recommend that you don't signthe form presented by your financial institution without
consulting and attorney. So, insummary, if you will, the new
Michigan Uniform power of Attorney law doesn'tnecessarily invalidate your existing durable power of attorney

(16:00):
if it was appropriately executed under thelaw that existed before January first, And
so what we recommend, though,in a consideration for that though, is
again, take a look at yourcurrent power of attorney document, verify that
the agents you have selected will stillbe able to serve if needed. Have

(16:22):
your attorney update the documents now,Provide copies of your durable power attorney to
the agents named in the document sothat that will have it available if it's
needed. Provide copies of your relevantdurable power of attorney to the institution such
again as your bank credit unions.Perhaps life insurance companies wherever it is that

(16:45):
durable power of attorney might be needed, so that you can find out whether
or not they are going to requireadditional verification or any perhaps changes that need
to be made to that durable powerof attorney. For of course, it

(17:26):
goes without saying that if you arealready clients of our office, we would
be happy to have an opportunity toreview your existing durable power of Attorney form
with you and if any changes needto be made to update or prepare replacement
durable powers of attorney, depending uponwhat needs to be done. So if

(17:48):
you meet with your finance institution andthey are requiring something additional, please reach
out to us. And of course, beyond that, we would be happy
to help protect your loved ones byputting together your state plan, a,
mending a current plan, or assistingyou in settling an a state. As
always, simply head on over toDOYLAWPC dot com. At the website you're

(18:14):
going to find information on how toschedule in personal consultations at the new Grand
Rapids office or the East Lansing location, or how to schedule a virtual consultation
via zoom or telephone. Where wecan be of assistance to you wherever you
happen to be in the state ofMichigan. Remember too, if you're looking
for simply an individual document, andmaybe that individual document that you're looking for

(18:38):
is a new durable power Attorney form, head on over to the Legal Store
at doylapc dot com and there youwill find information on how you can order
individual documents that will be prepared andsent to you. Well, that's going

(19:10):
to be it for today's show,though, as always, if you have
a comment about the program, atopic that you'd like to have me discuss,
or questions that you'd like to haveanswered, simply head on over to
Tuesday with Tom dot com, leavea voice message by clicking on the microphone,
or alternatively send me an email Tomat Tuesday with Tom dot com.

(19:32):
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(20:41):
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(21:08):
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