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What is a durable power of attorney?

Michigan law allows a person to designate another to act on his or her behalf by means of a power of attorney. Delegation can be made for specific tasks or for more general purposes. The person making the grant is known as the principal and the person to whom the power is granted is known as the attorney-in-fact. A durable power of attorney is one that may take effect or continue to be effective after the principal becomes incapacitated or disabled.

For example, the principal may create a power of attorney that names another as his or her attorney-in-fact for medical decisions and includes a provision that the document will become effective upon the incapacity or disability of the principal. State law requires that the document be signed by the principal along with either two witnesses or a notary public in order to be enforceable. The attorney-in-fact cannot act as a witness to the principal's signature.

The attorney-in-fact, upon acceptance of the role, is made a fiduciary and must act on behalf of the principal according to the terms of the power of attorney. Powers of attorney can be drafted to fit the requirements of the situation and may include a date on which the relationship will expire. A durable power of attorney will continue in effect until it is terminated either by an affirmative act of the principal or through the language of the document itself.

Unique circumstances may impact the appropriateness of a power of attorney or the way in which it is drafted. Interested parties may want to contact an estate planning lawyer, who may be able to provide particularized advice about these types of documents given the client's objectives.

Source: Michigan Legislative, "ESTATES AND PROTECTED INDIVIDUALS CODE (EXCERPT)", October 03, 2014

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