In Michigan, a complete estate plan includes both medical and financial powers of attorney. No matter the size of your estate, these documents preserve something that may be more valuable to you than money: your ability to make important decisions regarding your life, health, and finances. If you have properly-prepared and executed powers of attorney in place, you will essentially eliminate the need for your loved ones to ever seek a guardianship or conservatorship over you in Probate Court.
Here are five things you need to know about Medical Powers of Attorney (also known as Patient Advocate Designation (PAD) or a Durable Power of Attorney for Health Care) and about Financial Powers of attorney, also known as a Durable Power of Attorney for Finances.
It's possible to get a standard, “boilerplate” power of attorney (POA) for little cost. But a POA is like a blanket: if it's poorly constructed or full of holes, it won't do the job it's intended for when it matters. Different people need different things from a POA, but everyone needs it to be legally enforceable.
A low cost or internet “boilerplate” power of attorney is like a blanket: if it's poorly constructed or full of holes, it won't do the job it's intended for when it matters.
A Power of Attorney can grant a wide range of powers to the agent, but only if the principal who created the POA specifically provides for those powers. For example, elderly people may need to have long-term asset protection planning powers included in a financial POA. If the document is not properly prepared, the issue may need to be brought before the Probate Court, at great expense and inconvenience that could have been avoided with proper drafting.
Even if you had a POA drafted specifically for your needs by an experienced estate planning attorney, changes to the Michigan durable financial power of attorney law that took effect in October of 2012 could mean your POA needs an update. Under the new law, agents named under financial POAs agent must sign an acknowledgment or acceptance of duties detailing his or her responsibilities. This acknowledgment must include specific language that is substantially the same as that set forth in the statute.
Agents are now also required to keep records of their actions under the POA. Though POAs that predate October 1, 2012 are not subject to the new requirements, it's a good idea to bring them into compliance anyway.
Many people think that if they have a “living will,” their medical wishes will be known and carried out. This is an incorrect, and possibly dangerous, assumption. In Michigan, living wills have no enforceable legal effect.
In Michigan, living wills have no enforceable legal effect. What you need is a Durable Power of Attorney for Health Care, also known as a Patient Advocate Designation.
What you need is a Durable Power of Attorney for Health Care, also known as a Patient Advocate Designation (PAD). This document allows you to designate a person, your "advocate", to make medical decisions (including mental health decisions, if you so choose) on your behalf if you no longer can. It also lets you direct what kind of medical treatment you'll receive, including end-of-life decisions. Your PAD should be explicit about your wishes regarding organ donation.
The law requires a PAD to be written in a very particular way, so an older or improperly drafted document may not be given the effect you want it to. If you have a PAD and it is more than a few years old, you should have it reviewed.
Depending on your health issues, you may decide that you do not want cardiopulmonary resuscitation (CPR) performed on you if you stop breathing or your heart stops beating. If that's the case, your doctor can write a “do not resuscitate” (DNR) order to prevent medical providers from performing CPR when it would be otherwise called for. Michigan law permits you to wear a medical alert type bracelet or necklace containing this information to notify emergency personnel of your DNR. If you do not have a DNR order in place, and your advocate has not authorized one, medical personnel are legally and ethically bound to try to resuscitate you.
HIPAA laws exist to protect your privacy. However, if you are not conscious or competent when you enter a facility for medical care, you will not be able to authorize medical care providers to share information with your advocate. Without a HIPAA authorization, federal law forbids care providers from communicating freely with even your spouse or children. It's easy to execute a HIPAA authorization in advance of needing one — but potentially disastrous not to.
In short, taking the time to execute both financial and medical powers of attorney can save you and your loved ones time, money, and stress. The most important reason to have these documents in place, though, is to preserve your control over your medical and financial affairs. To learn more about Michigan powers of attorney, or to schedule a review of your existing documents, contact us to schedule a free initial consultation.