While many people have a Durable Power of Attorney as part of an Estate Plan, recent changes in Michigan law make it more important than ever to ensure that yours is up to date.
A Durable Power of enables you to appoint someone to handle their personal affairs (known as an Agent) in the event you are unable to do so due to illness or disability. The main reason this new law is being implemented is to protect people (particularly the elderly) from being financially exploited by the Agent they select. In addition, it is designed to ensure that the Agent acknowledges that they are willing to take on the responsibility that comes with being assigned as an Agent.
With this new law, it will be necessary for the person executing the Durable Power of Attorney (known as the Principal) to sign the document in the presence of two witnesses. The witnesses and the Agent must also sign the form and must be acknowledged by a notary, certifying all parties acknowledgement and signing.
While this change won’t take effect until October 1, 2012, it is recommended that you execute a new Durable Power of Attorney with the additional language requiring the Agent’s acknowledgement. It is also good to understand the role the Agent plays and to review your current Durable Power of Attorney to make sure that the Agent you have chosen is the right person to handle your affairs in the event you become incapacitated. It is also advisable to discuss these responsibilities with the Agent you are choosing to make sure they are willing to act as your Agent.
The Agent you choose for your Durable Power of Attorney acts in a fiduciary capacity which results in a higher level of care for the Principal if they become ill or incapacitated. As part of their duties, the Agent may be required to provide an accounting to the Principal of the handling of his or her financial affairs and it is necessary for the Agent to maintain records of his actions, including transactions, receipts, disbursements and investments.
The Agent may also be liable for any damage or loss to the Principal; however, the Principal may exonerate the Agent within the Power of Attorney except for acts committed in bad faith or with reckless indifference.
As you can see, the Agent does have a number of duties that could impact their ability to do handle the role properly. That’s part of the reason why the new law requires that the Agent execute an acknowledgement of their responsibilities.
If you have a Durable Power of Attorney and would like me to assist you in revising it, or it you need a new one, please contact me at (248) 932-5200 or email me at firstname.lastname@example.org to schedule an appointment.