» Durable Power of Attorney (DPOA)

I am named as agent in my father’s power of attorney. Can I be his executor?

Often people have a misunderstanding about their authority under a power of attorney after the principal’s death. A power of attorney is only effective during a principal’s lifetime. When the principal dies, the power of attorney is no longer valid. Only an executor or personal representative has the authority to administer your father’s estate. In order for you to be the executor or personal representative of your father’s estate, you will need to open a probate estate.

Can an agent or attorney-in-fact be paid?

Yes, the attorney-in-fact may receive reasonable compensation for his or her services if provided for in the power of attorney.

My brother is my parents’ agent under their powers of attorney. He has put himself on their bank accounts as joint owner. Can he claim these accounts as his when they die?

Under Michigan law, unless provided for in the power of attorney or by court order, an attorney-in-fact, while acting as an attorney-in-fact, cannot create a joint account or other joint assets with the principal.

My sister is my mother’s power of attorney and she has used my mother’s bank account to gift herself and her children large sums of money. How can I stop her from doing this?

An agent or attorney-in-fact cannot make gifts of any of the principal’s assets unless specifically provided for in the power of attorney or by judicial order. In other words, if the power of attorney does not allow for gifting, your sister cannot make any gifts unless the gifts are approved by the probate court. In addition, an agent who benefits individually or benefits another on their behalf from assets of the principal while that person is the agent may be subject to a presumption of undue influence.

Does a power of attorney have to be notarized?

Yes, the power of attorney must be acknowledged by the principal before a notary public, who endorses on the durable power of attorney a certificate of that acknowledgment and the date of the document being acknowledged.

My father executed a power of attorney, which he signed and had notarized but it was not witnessed. Is it valid?

No. A power of attorney must be signed in the presence of two witnesses, neither of whom is the proposed agent or attorney-in-fact and both of whom must sign the power of attorney.

What do I do if my husband doesn’t have capacity to sign a power of attorney and I need to sell our house?

Unfortunately, if your husband lacks the mental capacity to sign a power of attorney, you will need to file a Petition for Conservatorship with the probate court in the county in which your husband resides. The conservatorship will enable you to sell the house on his behalf.

My mother has memory issues and might have dementia. Can she still sign a power of attorney?

It depends. Just because an individual has memory issues or he or she has been diagnosed with dementia, that does not mean that the individual has no capacity to execute a power of attorney. In the early stages of dementia, an individual may still have the ability to understand a power of attorney document and have the capacity to execute the document. However, if the individual is not able to understand the nature of the power of attorney document or has such memory issues that he or she cannot recall the power of attorney, it is likely that the individual does not have the capacity to sign the power of attorney. You should also be careful that an individual with memory issues and dementia might technically have capacity to sign a power of attorney but his or her diminished capacity might make the individual susceptible to undue influence in doing so.

Do I have to be ill or disabled in order for someone else to act under my power of attorney?

If the power of attorney is a “durable” power of attorney, you do not have to be ill or disabled for someone else to act as your attorney-in-fact. Your attorney-in-fact can act on your behalf for any reason. For example, if you are traveling abroad and you need a document signed, your attorney-in-fact under your durable power of attorney can sign the document on your behalf.

What is a Durable Power of Attorney?

A Durable Power of Attorney (DPOA) is a document in which an individual called the “principal” designates another individual as his or her “agent” or “attorney-in-fact”. The agent is given authority to make financial and legal decisions as stated in the power of attorney document for the principal.

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