Michigan Power of Attorney Laws

If you want someone to be able to deposit your checks at your bank, file your taxes, or even sell or mortgage your home, you can create a handy document called a power of attorney. A POA is a simple document that grants specific powers to someone you trust—called an "attorney-in-fact" or "agent"—to handle certain matters for you.

• What Types of Powers of Attorney Are Available in Michigan?
• What Are the Legal Requirements of a Financial POA in Michigan?
• Steps for Making a Financial Power of Attorney in Michigan
• Who Can Be Named an Attorney-in-Fact (Agent) in Michigan
• When Does My Durable Financial POA Take Effect?
• When Does My Financial Power of Attorney End?

What Types of Powers of Attorney Are Available in Michigan?

You can make several different types of POAs in Michigan. In particular, many estate plans include two POAs:

• a financial POA, which allows someone to handle your financial or business matters, and
• a health care POA, which allows someone to make medical decisions on your behalf. (This document goes by different names depending on your state, and in Michigan is called a "patient advocate designation.")

In most estate plans, these POAs are what are known as "durable" POAs, which means that they retain their effectiveness even after you're incapacitated. It's a good idea for most people to create these two documents, as they help plan for the unexpected.

To learn about other types of POAs, including non-durable (limited) and springing POAs, see What Is a Power of Attorney. Below, learn how to create a durable financial POA that is valid in Michigan.

What Are the Legal Requirements of a Financial POA in Michigan?

For your POA to be valid in Michigan, it must meet certain requirements.

Mental Capacity for Creating a POA

The person making a power of attorney must be of sound mind. The exact contours of this mental capacity requirement are open to interpretation by Michigan courts. In one case, a court stated that the person making the POA must be mentally competent enough to consent to, have some control over, and understand the significance and consequences of making the POA. The person should have the ability to engage in thoughtful deliberation and use reasonable judgment with regard to making the POA. (Persinger v. Holst, 639 N.W.2d 594 (Mich. Ct. App. 2001).) If you're helping someone make a POA and have questions about the person's mental capacity, you should consult an attorney.

Notarization or Witnessing Requirement

To make a POA in Michigan, you must sign in the presence either of (1) a notary public or (2) two witnesses.

Even though you have a choice in Michigan, it's usually best to choose notarization, since many financial institutions are used to seeing notarized POAs and might be resistant to one that is witnessed only. If you want your agent to be able to conduct real estate transactions, your county land records will probably require notarization as well.

If you do choose to go the witnessing route, take note that neither of the witnesses can be a person named as an attorney-in-fact in your POA. (Mich. Comp. Laws §700.5501(2).)

Signature by Attorney-in-Fact (Agent)

A handful of states, including Michigan, also requires the agent to sign an acknowledgment of responsibilities and attach it to the POA. This extra step helps ensure that your agent understands the responsibilities of the role. However, your agent need not do this until it becomes time actually to use the POA. Sample language for this agent certification can be found in Michigan Comp. Laws § 700.5501(4).

Steps for Making a Financial Power of Attorney in Michigan

1. Create the POA Using a DIY program or an Attorney

Some private companies offer forms or templates with blanks that you can fill out to create your POA. For a more user-friendly experience, try Nolo's WillMaker, which guides you through a series of questions to arrive at a POA that meets your specific aims and is valid in your state. (You can also use WillMaker to make a will or living trust.) Or you can hire a Michigan lawyer to create a POA for you, though it will cost more. Many lawyers will include durable POAs as part of a more comprehensive estate plan alongside a will or living trust.

Whatever method you choose, the process of making the POA will include either granting your attorney-in-fact comprehensive powers or explicitly naming the specific powers you want your attorney-in-fact to have. For example, you might choose to grant your attorney-in-fact the power to:

• engage in real estate transactions
• engage in banking and financial transactions
• engage in retirement plan transactions
• engage in stock, bond, and other securities transactions
• operate a business or entity
• receive government benefits
• pursue tax matters
• provide for personal and family maintenance.

In Michigan, if you want the power of attorney to be durable (so that it remains effective after your incapacitation), the document must explicitly state so. Michigan's power of attorney statute suggests wording such as ""This power of attorney is not affected by the principal's subsequent disability or incapacity, or by the lapse of time." (Mich. Comp. Laws §700.5501(1).)

2. Sign the POA in the Presence of a Notary Public or Two Witnesses

As mentioned above, you can't simply sign the document and call it a day. In Michigan, you must notarize the POA or have it witnessed by two people. It's usually best to choose notarization. (See above.)

3. Store the Original POA in a Safe Place

Once you have completed the POA, store the original in a safe place that your loved ones can easily access, and let them know where to find it. (It won't do much good locked away in a safe that no one can get into.) If you become incapacitated, your agent might need the original POA to act on your behalf.

4. Give a Copy to Your Attorney-in-Fact or Agent

You should also give a copy of the power of attorney to your attorney-in-fact so that your attorney-in-fact is familiar with the contents of the document.

5. File a Copy With the Register of Deeds

If you granted the power to deal with real estate to your attorney-in-fact, you should also file a copy of your POA in the land records office (called the register of deeds in Michigan) in the county where you own real estate. This will allow the register of deeds to recognize your attorney-in-fact's authority if your attorney-in-fact ever needs to sell, mortgage, or transfer real estate for you.

6. Consider Giving a Copy to Financial Institutions

You can also give copies of your durable financial POA to banks or other institutions that your attorney-in-fact might need to deal with in the future. This step might eliminate some hassles if your attorney-in-fact ever needs to use the POA. Banks can sometimes be finicky about accepting POAs; see Can Banks Refuse a Power of Attorney? for more details.

It's also worth noting that Michigan requires an attorney-in-fact or agent to sign a specific statement before the attorney-in-fact starts exercising the powers in the POA. The exact words of this statement are set out in Michigan's statute. The attorney-in-fact essentially promises to do only what's allowed by the POA, keep records of transactions, and acknowledges that civil and criminal penalties are possible if the attorney-in-fact violates duties.

Who Can Be Named an Attorney-in-Fact (Agent) in Michigan?

Legally speaking, you can name any competent adult to serve as your attorney-in-fact. But you'll want to take into account certain practical considerations, such as the person's trustworthiness and geographical location. For more on choosing attorneys-in-fact, see What Is a Power of Attorney.

Naming a "successor" attorney-in-fact—an alternate who will become your attorney-in-fact if your first choice is unavailable for any reason—is always a good idea, as it creates a backup plan.

When Does My Durable Financial POA Take Effect?

Your POA should state when it takes effect. It's very common for the POA to become effective immediately.

In Michigan, it's also possible to create a condition that must be satisfied before the POA becomes effective—such as a doctor declaring that you are incapacitated—but there are many reasons why this type of "springing" power of attorney is not usually advised.

When Does My Financial Power of Attorney End?

Any power of attorney automatically ends at your death. A durable POA also ends if:

• You revoke it. As long as you are mentally competent, you can revoke your document at any time.
• No agent is available. To reduce the likelihood of this happening, you can name a successor (alternate) agent in your document.
• A court invalidates your document. It's rare, but a court may declare your document invalid if it concludes that you were not mentally competent when you signed it, or that you were the victim of fraud or undue influence.

For more on Michigan estate planning issues, see our section on Michigan Estate Planning.