Summary of the Uniform Power of Attorney Act (UPOAA) Enactment in Michigan and Changes to the Power of Attorney Law

On November 7, 2023, Governor Whitmer signed the Uniform Power of Attorney Act (UPOAA) into law, repealing the previous durable power of attorney provisions in the Estates and Protected Individuals Code (EPIC), MCL 700.5501–.5505. This new law, 2023 PA 187, will take effect on July 1, 2024.

Background and Adoption

• The UPOAA, developed by the Uniform Law Commission in 2006, aims to provide consistency in the application of powers of attorney across states.
• Michigan joins 30 states and the District of Columbia in adopting this statute or a substantially similar one.
• The adoption allows Michigan to benefit from the established jurisprudence in other states.

Scope and Application to Michigan

• The UPOAA applies to all written records granting authority to an agent to act on behalf of a principal, with certain exceptions (Section 103).
• It does not invalidate powers of attorney executed before the enactment, provided they were in compliance with Michigan’s requirements at the time (Section 106).

Key Changes and Provisions for Power of Attorney

Durability of Power of Attorney:

• Previously, powers of attorney in Michigan terminated upon the principal’s incapacitation unless explicitly stated as durable.
• Under the UPOAA, a power of attorney is durable if:
  • Acknowledged by the principal before a notary, or
  • Signed in the presence of two witnesses (neither can be the agent, and one can serve as the notary) with both witnesses also signing the durable power of attorney (Section 105(2)).
• Powers of attorney that are neither notarized nor witnessed are effective but not durable (Section 105(1)).

Agent’s Authority:

• The UPOAA outlines specific actions an agent cannot perform without explicit authorization, including altering living trusts, giving gifts, changing rights of survivorship, creating or changing beneficiaries, and more (Section 201).
• Detailed provisions are provided for an agent’s general authority over various domains such as real property, personal property, financial institutions, business operations, insurance, litigation, personal maintenance, and taxes (Sections 204–217).

Agent Liability:

• The UPOAA specifies that agents who violate its provisions are liable for restoring the value of the principal’s property, including attorney fees and costs (Section 117(1)).
• Agents are liable for three times the value of the property if they embezzle, convert the principal’s property, or refuse to transfer possession of the property to the principal on demand (Section 117(2)).
• Agents acting with “care, competence, and diligence” in the best interests of the principal are not liable even if they also benefit from their actions (Section 114(4)).

Additional Provisions

• The UPOAA includes rules regarding the time of effectiveness (Section 109), acceptance (Section 113), termination (Section 110), coagents and successor agents (Section 111), and the resignation of an agent (Section 118).
• It provides a statutory form power of attorney (Section 301), an agent’s acknowledgment (Section 302), and a certification of the validity of a power of attorney and agent’s authority (Section 303), which can be modified as needed.

Contact Van Den Heuvel Law Office Today for Expert Legal Guidance in Michigan!

In summary, the UPOAA introduces a comprehensive framework for durable powers of attorney in Michigan, ensuring greater consistency and clarity in their application and providing detailed guidelines for both agents and principals. If you have questions about a power of attorney, or acting as a power of attorney, Van Den Heuvel Law Office can help. Our experienced attorneys can guide you through your duties as well as create your power of attorney. Contact our office online to learn more.