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|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
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
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
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.