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Execution of a Medical Power of Attorney - 'Durable Power of Attorney for Health Care

As with financial powers of attorney, Michigan law requires similar ceremony, for the proper execution of a medical power of attorney. See MCLA §700.5506. These documents can foreseeably take on life and death importance, and third persons such as doctors, nursing homes and hospitals need to know that they can rely on the guidance they get from an agent under a Medical Power of Attorney (aka “patient advocate”).

The requirements for the proper execution of a medical power of attorney document are as follows:

  1. The “principal”, in this case referred to more appropriately as a “patient”, is not required to sign in front of a notary, although I believe that is probably the safer course;
  2. The principal/patient’s signature must be witnessed by two persons, who are not the patient’s spouse, parent, child, grandchild, sibling, presumptive heir, known devisee (i.e., the witness knows that they are in the patient’s will), physician, patient advocate, an employee of the patient’s life/health insurer, home for the aged, nursing home, etc.
  3. The witnesses are actually prohibited from witnessing the document if they think that the patient is not of sound mind, or is acting under duress, fraud, or undue influence.
  4. The agent/patient advocate acknowledges that he/she knowingly assumes the responsibilities set forth in the power of attorney document;
  5. The statute provides that a patient “may” designate a successor patient advocate, and an alternate successor.

I view the designation of a patient advocate as critical; the point of the exercise is to make sure that the patient’s wishes are carried out, even if the original agent, and even the first Successor Agent have moved away, etc. Accordingly, my practice is to designate one agent, Successor #1, and then Successor #2.

Clearly, the more potential successors who are named up front, the less likely a family devastated by the patient’s life-threatening illness will be left with a gap in decision-making authority that leave doctors, hospitals and nursing homes uncertain as to how to proceed. One agent, and two successors will usually be more than enough.

While it may seem unduly burdensome, I have found that it is not terribly difficult to line up three family members or friends to serve as agent & successors, plus two others, who can assist in witnessing. More often than not, the families already have folks lined up for this.

I handle these Medical power of attorney executions, or signings, as follows:

  1. As a notary public, I notarize the patient’s signature;
  2. I have an initial agent lined up, as well as a first Successor, and a second Successor;
  3. I have two witnesses, who meet the state law criteria (not family, and not an agent, or a Successor agent);
  4. I have the agent acknowledge their responsibilities as required by the statute; and
  5. I explain the requirements to everyone.

Finally, as with the financial powers of attorney, I leave two fully executed copies of the document with the principal and agent, and I take one fully executed copy back to my office, where I scan it to my hard drive, and where it is backed up routinely. That way, you will never have to worry about losing your document. I am only as far away as a phone call, and I will gladly provide you another copy.

Need to know more about a Medical Power of Attorney?

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Learn more about Michigan Power of Attorney Laws & Protections.

You can actually designate the person you want to step in on your behalf, to make medical decisions; in Michigan this person is called a "Patient Advocate".
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You will not likely be hiring me as a "Guardians Ad Litem", but you might have to deal with one, after we file our Petition for Guardianship, Conservatorship, or other Probate Court petition. 
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Michigan law requires a little bit of drama and ceremony, for the proper execution of a financial power of attorney. Given the significant powers and responsibilities that an agent takes on, the purpose of such requirements is to make certain that the power of attorney document, and relationship, was set up intentionally.
.. Continue reading.

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