Power of Attorney: An Overview

By Jadranko Tomic Bobas, Managing Attorney at Elder Law of Michigan

In Michigan when we discuss powers of attorney (POA), we usually refer to a financial power of attorney and/or a medical power of attorney. A power of attorney is a document that delegates decision-making capacity to a third person, which is usually a family member or a trusted friend. Powers granted can be broad, specific, narrow, or general.

When appointing an agent, it is crucial that you fully trust and are comfortable with that person as he or she can legally bind you to the choices they make. Also, agents, for the most part, have access to sensitive documents and financial accounts.

Does a POA expire?

In Michigan, powers of attorney are lifetime documents and expire when the principal (the person authorizing the agent to act) passes (MCL 700.5510(1)(a) and MCL 700.5504(1)). Although, some powers can survive the death of the principal, those powers are not discussed in this blog.

Can I revoke a POA?

Pursuant to MCL 700.5504 and MCL 700.5510, a power of attorney can be revoked by the principal, court order, resignation or removal of the agent, death of the principal, incapacity of the principal, or by a subsequently executed power of attorney that revokes the prior document.

But, what about capacity/competency?

Generally, the person revoking the power of attorney needs to have capacity. As such, a power of attorney can be revoked at any time – if the principal has the capacity. However, this was brought into question by the Michigan Court of Appeals for health care powers of attorney when the patient (even though clearly without capacity to make medical treatment decisions) communicates an intent to revoke the patient advocate designation. Also, MCL 700.5511(1) states, in part, that the current desire of the patient is binding on the patient advocate (agent) regardless of the patient’s competency. Therefore, an interesting situation can arise where the patient must be competent to execute a medical power of attorney, at the time of the signing, but the patient does not have to be competent to revoke it.  

If you want to revoke a power of attorney or have any questions, you should contact the Legal Hotline for Michigan Seniors at 800.347.5297.

The information in this article is general and not intended to be a substitute for legal advice. In any legal matter you should always consider consulting with an attorney for specific advice.  

Jadranko (Jay) Tomic Bobas is a Managing Hotline Attorney at Elder Law of Michigan and has been a member of the Elder Law team since 2011. As an Attorney Mr. Tomic Bobas provides legal advice on estate planning and administration, Medicaid planning, debt collection, and real estate issues.