What is a Durable Power of Attorney? Should I have a Durable Power of Attorney as part of my estate plan?

Although sometimes used in specific situations like the purchase or sale of real estate, a Durable Power of Attorney is one of the key estate planning tools that we ask all of our clients to consider when formulating their estate plans.

Michigan is one of a number of states that recognizes, by statute, the legal concept known as a Durable Power of Attorney. A Durable Power of Attorney is a written document by which a person called the “principal” designates another to act on behalf of that person, becoming the principal’s “attorney in fact.” The written document must contain words that show that the principal intends that the attorney in fact has the power to act despite the principal’s subsequent incapacity or disability. A Durable Power of Attorney has no expiration date unless the Durable Power of Attorney explicitly states otherwise.

As the principal, it is up to you to determine whether the Durable Power of Attorney should take effect immediately when signed, or only upon your incapacity or disability (called a springing power). There are pros and cons to each which should be discussed with your attorney. Older clients or those who suffer from debilitating illness often want their Durable Powers of Attorney to take effect immediately. On the other hand, healthy individuals may be reluctant to appoint someone to handle their affairs when they can handle those affairs themselves and there is no immediate or pressing need.

Who should you appoint as your attorney in fact under a Durable Power of Attorney? A person that you trust implicitly is the person you should appoint to be your attorney in fact. Although you can expand or restrict the powers of the person you appoint, it is important to understand that your attorney in fact will have the ability to make certain decisions for you that will directly effect your financial affairs and personal well-being. Obviously, it is extremely important that you choose this person carefully.

Living Will? Medical Power of Attorney? Patient Advocate Designation? Advanced Medical Directive? Is there a difference and is it important that I have one?

Although it is called by different names in different states, a Living Will, Medical Power of Attorney, Patient Advocate Designation, or Advanced Medical Directive, all have one thing in common: the ability to appoint someone to make your wishes known as to what kind of medical treatment you will receive if you are unable to make these decisions for yourself.  A  Living Will, Medical Power of Attorney, Patient Advocate Designation, or Advanced Medical Directive is a legal document consisting of two primary elements: 1. The appointment of a person whom you trust to make medical decisions for you if you become incapacitated; and 2. Directives to this person as to what kind of medical treatment or life sustaining procedures be used (or not) if your recovery is highly improbable and death is a medical certainty.

Everyone remembers the story of Terri Schiavo. She was the young woman in Florida who suffered massive brain damage and had no objective signs of brain function. Her husband believed it would have been her wish to have her feeding tube and all life-sustaining devices removed to allow her to “die with dignity.”  Terri’s parents, on the other hand, contended that as a devout Roman Catholic, she would never have consented to the withholding of treatment that would result in the taking of life itself. The issue of whether to withdraw life-sustaining procedures was addressed by the courts, the Florida legislature, and Congress.  Even the President of the United States weighed in on the issue. A very private, personal, and ethical matter turned into a public and media spectacle. Finally, after a legal battle that lasted for seven years, on March 18, 2005, life support was disconnected and she was allowed to die. Terri Schiavo did not have a Living Will.

At Berkley Mengel PLC we highly recommend to our clients that a Patient Advocate Designation (the appropriate name for this document under Michigan law) be included as part of their estate plan. We also recommend that each client consider a Do Not Resuscitate (DNR) provision as to what (if any) life sustaining measures be utilized if there remains no reasonable likelihood of recovery.  Yes, it is important to have a Patient Advocate Designation (i.e. Living Will, Medical Power of Attorney).  Why?  Your loved ones need to know who will make medical decisions for you and what your wishes are if the unspeakable happens and you are incapacitated to the point where you are not able to make medical decisions for yourself.

Do I need a Will?

May 21, 2010

The purpose of our blog is to answer your questions and provide you with general information regarding various legal issues that affect your life. For more specific information regarding your particular legal matter, we invite you to contact us.

Do I really need a Will?

 

The simple answer is yes, you do. If you own property in your name and die without a Will, state law will determine who gets your property. This may or may not be the way you wanted your property to pass. Without a Will, you not only lose control over who gets what, but you lose the right to appoint a particular person to oversee the distribution of your assets to the persons you would have wanted. This person is known as the personal representative or executor of your estate.

A study published in 2007 by Harris Interactive found that 55% of all adult Americans do not have a Will, and that the percentage for minorities is even greater. If you do not have a Will, you are not alone. Detroit native Sonny Bono, the pop icon of the 60’s and part of the famous Sonny & Cher duo (and then a U.S. Congressman), was killed in a freak skiing accident in Lake Tahoe at the age of 62. He did not have a Will. A man claiming to be Bono’s son came out of the woodwork and demanded that he be awarded a share of the estate. It became a nightmare for Bono’s widow. This problem would never have arisen if only Bono had executed a Will.

Although older Americans (over 55) are more likely to have some type of estate plan, the need for a Will is particularly important for parents who have children under 18. Through your Will, you can nominate a person to serve as your children’s guardian if something were to happen to you. You also can appoint a person you trust as a “conservator” to help manage the children’s property so that their financial needs are being met if you are no longer around.

Yes, you really do need a Will. Everyone does. If you do not have a Will, or if you need to have your Will reviewed and updated, please contact us at 248-586-0200.

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