DURABLE FINANCIAL POWER OF ATTORNEY
(Michigan)
[// GUIDANCE: Delete this entire guidance block prior to execution. This template is drafted to comply with Michigan Compiled Laws § 700.5501 and related fiduciary‐duty provisions. Practitioners must confirm no statutory amendments have occurred since the date of use.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Grant of Authority & Scope of Powers
- Agent’s Fiduciary Duties
- Acceptance & Acknowledgement by Agent
- Successor & Co-Agents
- Durability; Incapacity of Principal
- Revocation & Termination
- Risk Allocation
- Default & Remedies
- Dispute Resolution
- General Provisions
- Execution Block
1. DOCUMENT HEADER
1.1 Parties
(a) “Principal”: [PRINCIPAL LEGAL NAME], residing at [ADDRESS].
(b) “Primary Agent”: [PRIMARY AGENT LEGAL NAME], residing at [ADDRESS].
(c) “Successor Agent(s)”: [NAME(S)] (if any), in the order listed.
1.2 Title & Purpose
This Durable Financial Power of Attorney (the “Agreement”) appoints the Agent to act for the Principal with respect to financial and property interests, subject to the terms herein.
1.3 Effective Date & Governing Law
(a) Effective Date: [DATE] (“Effective Date”).
(b) Governing Law: The laws of the State of Michigan, specifically the Michigan Estates and Protected Individuals Code (“EPIC”), shall govern; see Mich. Comp. Laws § 700.5501.
1.4 Consideration
The mutual promises herein constitute sufficient consideration.
2. DEFINITIONS
For ease of reference, capitalized terms have the meanings below.
“Act” – Mich. Comp. Laws § 700.5501 et seq., as amended.
“Agent” – The Primary Agent or any Successor Agent then serving.
“Assets” – All property and rights, tangible or intangible, in which the Principal holds an interest now or later.
“Disability” – The Principal’s incapacity as defined under the Act, evidenced by written certification of two licensed physicians.
“Durable” – Surviving the Principal’s Disability.
“Liability Cap” – Liability of the Agent is limited to Assets then under the Agent’s direct management or control.
“Third Party” – Any person or entity relying, in good faith, on this Agreement.
3. GRANT OF AUTHORITY & SCOPE OF POWERS
3.1 General Grant
The Principal grants the Agent full power to act with respect to the Assets, to the same extent the Principal could if personally present, subject to Section 3.2 limitations.
3.2 Enumerated Powers
Unless expressly restricted in Schedule A, the Agent may:
(a) Banking: Open, close, and transact on accounts.
(b) Investment & Securities: Buy, sell, pledge, or exchange securities.
(c) Real & Personal Property: Acquire, lease, manage, improve, encumber, or dispose of property.
(d) Digital Assets: Access, manage, or transfer digital accounts and electronic communications.
(e) Tax Matters: Prepare, sign, and file tax returns; receive refunds.
(f) Retirement Plans: Make contributions, select payment options, or rollover funds.
(g) Insurance & Annuities: Purchase, adjust, or surrender policies.
(h) Litigation: Initiate or defend proceedings; settle claims.
(i) Governmental Benefits: Apply for, manage, or appeal benefits.
(j) Safe-Deposit Boxes & Postal Matters.
(k) Gifts: Make gifts not exceeding the annual federal gift-tax exclusion to the Principal’s issue or charity.
(l) Trusts: Create or amend revocable trusts solely for probate avoidance and tax efficiency.
(m) Disclaimers: Execute disclaimers for tax or estate planning.
[// GUIDANCE: Powers (k) through (m) are “hot powers” requiring specific authorization under many states’ Uniform POA Acts; Michigan practitioners typically include them for completeness.]
3.3 Restrictions
The Agent may not:
(a) Make or change the Principal’s will.
(b) Assign this Agency unless under Section 6.
(c) Make gifts to the Agent except as expressly permitted in Section 3.2(k).
4. AGENT’S FIDUCIARY DUTIES
4.1 Standard of Care
The Agent shall:
(a) Act solely in the Principal’s best interest;
(b) Act with the care, competence, and diligence of a prudent person;
(c) Keep separate and accurate records;
(d) Provide accounting to the Principal, a court of competent jurisdiction, or other person designated in Schedule B on written request.
4.2 Delegation
Limited delegation to professionals is permitted for matters requiring specialized skills, provided the Agent exercises reasonable care in selecting and monitoring the delegate.
5. ACCEPTANCE & ACKNOWLEDGEMENT BY AGENT
Prior to exercising authority, the Agent must date and sign the “Agent Acknowledgement” in the Execution Block, thereby accepting fiduciary duties imposed by Michigan law.
6. SUCCESSOR & CO-AGENTS
6.1 Appointment Order
If the Primary Agent resigns, dies, becomes incapacitated, or is unwilling to serve, authority passes to the Successor Agent(s) in the order named.
6.2 Multiple Agents
If two or more Agents serve concurrently, each may act independently unless Schedule C requires joint action.
6.3 Resignation
An Agent may resign by giving thirty (30) days’ written notice to the Principal (if competent) and to any Co-Agent or Successor Agent.
7. DURABILITY; INCAPACITY OF PRINCIPAL
7.1 Durability Statement
THIS POWER OF ATTORNEY SHALL NOT BE AFFECTED BY THE PRINCIPAL’S SUBSEQUENT DISABILITY OR INCAPACITY, OR BY THE LAPSE OF TIME.
7.2 Incapacity Certification
A Third Party may rely on a physician’s certificate (copy acceptable) to establish Disability.
8. REVOCATION & TERMINATION
8.1 Principal’s Revocation
The Principal may revoke this Agreement in whole or part by delivering a written, signed notice of revocation to the Agent and, where appropriate, recording such notice with the register of deeds for any county where real property subject hereto is located.
8.2 Automatic Termination
This Agreement terminates upon:
(a) The Principal’s death;
(b) Complete revocation under Section 8.1;
(c) Judicial appointment of a conservator after court order revoking this POA.
8.3 Notice to Third Parties
A Third Party has no liability for acting in reliance on this Agreement until the Third Party receives actual notice of revocation or termination.
9. RISK ALLOCATION
9.1 Indemnification
The Principal shall indemnify and hold harmless the Agent from any liability, cost, or expense incurred for actions taken in good faith and in compliance with this Agreement and Michigan law.
9.2 Limitation of Liability
Agent’s aggregate liability to the Principal and to any third party shall not exceed the value of Assets under the Agent’s management at the time the cause of action accrues (“Liability Cap”), absent intentional misconduct or gross negligence.
9.3 Insurance
The Agent may obtain reasonable fiduciary liability insurance, premiums payable from the Assets.
10. DEFAULT & REMEDIES
10.1 Events of Default
(a) Breach of fiduciary duty;
(b) Failure to account upon written request within thirty (30) days;
(c) Exceeding authority granted herein.
10.2 Notice & Cure
The Principal or an interested party may deliver written notice specifying the default. The Agent has fifteen (15) days to cure, unless irreparable harm would result.
10.3 Remedies
(a) Suspension or revocation of authority;
(b) Mandatory accounting or turnover of records;
(c) Surcharge or removal proceedings in state probate court;
(d) Any other equitable relief, including injunctive relief to freeze or recover Assets.
10.4 Attorneys’ Fees
The prevailing party in any action under this Agreement shall recover reasonable attorneys’ fees and costs.
11. DISPUTE RESOLUTION
11.1 Governing Law
Michigan law governs all disputes.
11.2 Forum Selection
Exclusive jurisdiction resides in the probate court of the Michigan county in which the Principal resides or where Assets are located.
11.3 Limited Arbitration
Except for requests for injunctive relief or matters relating to a judicial accounting, any monetary dispute not exceeding $ [ARBITRATION THRESHOLD] shall be resolved by binding arbitration administered by the American Arbitration Association under its Commercial Rules, conducted in [COUNTY], Michigan.
11.4 Jury Waiver
To the extent permitted by law, the parties knowingly waive trial by jury in any proceeding arising out of this Agreement; provided, however, such waiver shall not apply where prohibited by Michigan court rules.
11.5 Injunctive Relief
Nothing herein limits a party’s right to seek emergency or provisional relief (including temporary restraining orders or preliminary injunctions) from the probate court to safeguard Assets.
12. GENERAL PROVISIONS
12.1 Amendments & Waivers
Must be in a writing signed by the Principal (if competent) and notarized, except as otherwise provided under the Act.
12.2 Assignment
This Agency is personal to the Agent and may not be assigned, except as expressly provided in Section 6.
12.3 Successors & Assigns
Binding upon and inure to the benefit of the Principal, the Agent, and their respective heirs, successors, and permitted assigns.
12.4 Severability
If any provision is held invalid, the remaining provisions remain in full force, and the invalid provision shall be reformed to the minimum extent necessary to carry out the purpose hereof.
12.5 Entire Agreement
This document is the complete and exclusive statement of the Principal’s grant of authority and supersedes any prior inconsistent power of attorney related to financial matters.
12.6 Counterparts; Electronic Signatures
This Agreement may be executed in counterparts and delivered electronically; all counterparts together constitute one instrument.
13. EXECUTION BLOCK
13.1 Principal’s Signature
[PRINCIPAL NAME] – Principal
Date: __
State of Michigan )
County of ___ ) SS.
Subscribed and sworn (or affirmed) before me on __, 20__, by ________, proven to me on the basis of satisfactory evidence to be the person who appeared before me.
Notary Public, State of Michigan
My Commission Expires: ___
Acting in _____ County
[OR, IN THE ALTERNATIVE, TWO WITNESSES:]
Witness 1: _____ Date: _
Witness 2: _____ Date: _
13.2 Agent Acknowledgement & Acceptance
I, _____, hereby accept appointment as Agent under this Durable Power of Attorney, acknowledge my fiduciary duties under Michigan law, and agree to act in good faith for the benefit of the Principal.
[AGENT NAME] – Agent
Date: __
SCHEDULE A – POWER LIMITATIONS
[Insert any power exclusions (e.g., no gifting authority beyond annual exclusion).]
SCHEDULE B – ACCOUNTING RECIPIENTS
[Insert name(s) and address(es) entitled to receive accountings.]
SCHEDULE C – CO-AGENT OPERATIONAL RULES
[Insert requirements for unanimous or majority action, consultation procedures, etc.]
[// GUIDANCE:
1. Customization: Replace all bracketed items before execution.
2. Execution: Michigan permits EITHER (i) acknowledgment before a notary OR (ii) signature of the Principal plus two witnesses; do not use both unless desired.
3. Agent’s Use: An original, certified copy, or a copy accompanied by a certification pursuant to EPIC suffices for most transactions.
4. Recordation: Record with the register of deeds for real-estate authority to avoid title objections.
5. Safekeeping: Recommend secure, fire-resistant storage and distribution of copies to Agent(s) and Successor Agent(s).]