Powers of Attorney
Every Michigan estate plan should include the following Powers of Attorney; a Financial Power of Attorney, a Medical Power of Attorney, and a HIPAA Authorization.
Financial Power of Attorney
A Financial Power of Attorney (“FPOA”) (a/k/a a Durable Power of Attorney) is a document in which you empower someone to handle your financial affairs during your lifetime, but that does not specify how the affairs are to be handled like a Living Trust does. It can be drafted to become effective upon your incapacity or upon signing, whichever you choose. You can modify or revoke a FPOA if you are still competent.
The FPOA can help avoid the need to initiate Conservatorship probate proceedings. It should be tailored to address your particular needs. For instance, an FPOA drafted for a senior may need to include trust creation powers, as well as gifting and transfer provisions necessary to facilitate Medicaid eligibility.
Medical Power of Attorney
A Patient Advocate Designation (“PAD”) (a/k/a a Durable Power of Attorney for Health Care or a Medical Power of Attorney) is Michigan’s version of an “advance medical directive.” The PAD permits you to designate a person, called your “advocate”, to make medical decisions on your behalf, if you no longer can, without seeking a Guardianship through the probate court.
The PAD allows you to direct what types of medical treatment you will receive, including whether to withdraw life support, in case of incurable illness or injury. You can modify or revoke a PAD if you are still competent. It should also indicate whether you also want your advocate to have authority to handle mental health decisions, and because of changes in Michigan’s organ donation law in 2003, should express your wishes regarding organ donation.
Although living wills have been recognized by medical providers in the past, there is no statutory authority requiring a living will to be recognized and their legality has been highly questionable since enactment of the Durable Power of Attorney for Health Care (“Patient Advocate”) Statute in December 1990. Therefore, we highly recommend that you do not rely upon a living will or powers of attorney drafted before December 1990 as the means to ensure that your wishes regarding medical care will be followed.
The Health Insurance Portability and Accountability Act of 2003 (“HIPAA”) prohibits health care providers from releasing your private medical information to anyone but you or your “personal representative.” Consequently, we recommend that all of your estate planning documents include provisions that appoint your designated decision makers (e.g. Trustee, Advocate, etc.) as your HIPAA “personal representative” and authorize your health care providers to release your medical information to these persons. We also recommend executing a separate HIPAA Authorization with similar designation provisions.
Do You Have Questions About Michigan Powers of Attorney?
Based in Northville and Brighton, Estate Planning & Elder Law Services works with individual and families throughout Southeast Michigan to determine which estate planning documents they need in place.
Contact us today to schedule a free consultation: call 888-663-7407 or complete our online form. We work with individuals and families throughout Southeast Michigan from our offices located in Northville and Brighton.