Durable Power of Attorney
Declaring an agent for your peace of mind
What is it?
A Durable Power of Attorney is a document in which a person, or “principal” appoints an agent, or an “attorney-in-fact” to act for them. It authorizes the agent to perform almost any act that the principal could perform, such as opening and closing bank accounts, signing checks, and executing deeds, contracts, and other documents. The only limitations on the power are the execution of a will, performing non-delegable duties (such as acting as a trustee), and making health care decisions (which under Michigan law can only be made by a patient advocate, as discussed below).
Who should you name as your agent?
The most important consideration in a client’s decision as to whom to appoint as an attorney-in-fact is trust. Both documents provide an agent of the principal with great power to affect the life of the principal and accordingly, the principal must be able to trust his or her attorney-in-fact.
It is generally a wise precaution to designate a successor agent in case the first-named agent cannot act. The document may provide that a successor agent will act as agent if the first-named agent does not accept, is incapacitated, resigns, or is removed.
What powers should you give your agent?
A power of attorney is strictly construed based on its specific powers. General powers in the instrument are limited to those necessary to effectuate the specific purposes set forth in the power of attorney. The powers granted to the agent should therefore be carefully drafted so that all aspects that you wish to cover are specifically enumerated or can be implied as necessary to effectuate the enumerated powers.
Who should you name as your patient advocate and successor(s)?
It is advised to select someone whom you trust, who knows you well, and who is willing to carry out your wishes with respect to health care, mental health treatment, removal of life support, and anatomical gifts. It is generally a wise precaution to designate a successor agent in case the primary agent cannot act. The Patient Advocate’s powers cannot be delegated to another person without prior authorization by the Patient.
Ensuring that your Power of Attorney is honored.
Properly drafted and executed documents should be honored, and in the case of the Patient Advocate Designation, that is generally the case. Convincing financial institutions to honor Durable Powers of Attorney, however, has become quite problematic in recent years. Banks have cited a variety of reasons for rejecting valid Durable Powers of Attorney.
To ensure that your financial institutions will honor a Durable Power of Attorney, I recommend that the you advise the institution that you have executed a power of attorney, ask them to add it to their records, and inquire as to whether the institution has any additional forms you should sign to ensure that the document will be honored.
If you are in need of a Durable Power of Attorney or would like to review an existing document, call Steven Storrs at 269-945-2242 or click here to contact me to set up an appointment to discuss your options.
*This blog is intended for informational purposes only and does not constitute legal advice. Please consult an attorney before making important decisions regarding your individual situation.