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| 1009 Washington Avenue Bay City, MI 48708-5780 (989) 892-6551 - Phone (989) 892-1568 - Fax info@stplaw.net - Email |
| | 1009 Washington Avenue | Bay City, Michigan | 48708 | 989-892-6551 - Tel | 989-892-1568 - Fax | |
| Copyright © 2007 Seward, Tally & Piggott, P.C. All Rights Reserved. |
| The Durable Power of Attorney What is a power of attorney? You name another individual or a bank as your agent or attorney-in-fact, to act for you in handling your financial affairs; for example, to sign checks and make deposits, pay bills or sell property. A power of attorney must be in writing, signed by you, and properly witnessed and notarized so that your agent has something to show as to his or her authority to act for you. If you become incompetent, an ordinary power of attorney - giving a relative, friend or a bank the power to act for you - is automatically invalidated. What is a durable power of attorney? A durable power of attorney is a written power of attorney which contains the words “this power of attorney shall not be affected by my disability.” The document must be signed by you and properly witnessed and notarized before you become disabled. If you do nor have a durable power of attorney and you become disabled and are unable to handle your affairs, Michigan Law provides for a Probate Court proceeding to have an individual or a bank appointed conservator to act for you. Do I need a durable power of attorney even if my spouse and I own everything jointly? Yes. If you are disabled, your spouse can still sign checks and make withdrawals on joint bank accounts, but your spouse cannot sell jointly-owned stocks or your jointly-owned home or cottage without your signature. Can I revoke a durable power of attorney? As long as you are competent you can revoke your durable power of attorney. The revocation should be in writing, and it should be delivered to the agent and to third parties with whom the agent is dealing (for example, your bank). Finally, the durable power of attorney terminates at the time of your death, unless there is uncertainty as to whether you are dead or alive. A third party is entitled to rely on a power of attorney which has been terminated or revoked until the third party has actual notice of the termination. Whom should I name as my agent? You may name any adult or you may name a bank. You should select an agent who is willing to act and in whom you have confidence and trust. Can I name more than one agent? Yes. You can name two or more agents, each of whom can act independently, or you can require your agents to act jointly. If you name two agents to act jointly, a deadlock can develop if they can’t agree. What is the agent’s obligation to me? Your agent is obligated to follow your instructions and act in your best interest. The agent should keep accurate records and accounts and act prudently. Your agent is legally responsible for damages to you for improperly handling your affairs. What if my agent abuses the authority? You can revoke the durable power of attorney, or, if because of your disability you are unable to revoke it, anyone interested in your welfare can ask the Probate Court to intervene and appoint a conservator to handle your affairs. The conservator can require the agent to account and report, and can even suspend or revoke the durable power of attorney. You or your conservator can sue your agent for damages caused by the agent’s abuse of authority. What are some of the advantages of a durable power of attorney? You, not a court, select your agent. It can give you and your family peace of mind knowing that you have named someone to handle your affairs. It can save time and the expense of a court proceeding. How do I obtain a durable power of attorney? It is recommended that you consult with a knowledgeable attorney who can prepare a durable power of attorney to suit your needs and to advise you on its use. The preceding is provided for informational purposes only. While every effort has been made to ensure accuracy, it cannot be relied upon as legal advice. Applicability of the legal principles discussed may differ substantially in individual situations. Therefore, you should consult with Seward, Tally & Piggott, P.C. |