A Win for Uniformity

By Doug Chalgian on November 11, 2023

Share This Post with Friends

 

The BIG NEWS in the Michigan probate and elder law world is that Governor Whitmer has signed the Uniform Durable Power of Attorney Act (“UPOAA”) into law.  The effective date, as I understand it, will be July 1, 2024

The UPOAA relates only to financial power of attorneys (FPOAs) and represents no change to the law of Patient Advocate Designations (aka, Medical Power of Attorneys).

Click here to link to the Public Act.

And click here to link to the legislative summary which provides a nice detailed overview of the changes brought about by the law.

The UPOAA will change the way we practice.  Among other things, it includes new execution requirements and a new definition of “incapacity” applicable to the use of FPOA’s.

But most notably, the UPOAA incentivizes the use of a form FPOA.  In theory, by using the form, it will be easier for our clients to work with banks and other financial institutions.  (Presumably, our role will be to download the form and help clients fill in the blanks.)

The proposition that by having a statutory form FPOA, financial institutions would be compelled to accept our documents or face penalties, was the main selling point of the UPOAA to the probate and elder law practitioners who were paying attention.  On that point, I have two thoughts:

First, I have created hundreds (maybe thousands) of FPOAs during my years of practice.  If I hear from a client that they are having a problem using an FPOA twice a year, that would be a lot.  Further, when these issues arise, they’re typically resolved by a phone call or, at most, a letter.

Second, the way I read the bill, all the power is with the banks and financial institutions.  If I had to guess, these institutions will be even more emboldened to exercise dominion over the use of FPOAs after this law takes effect.  Just a guess.  Maybe not.  We’ll see.

Disrespect

Arguably the form approach to FPOAs undervalues concerns and insights about agents and fiduciary roles in the context of aging, a subject which has contributed significantly to rise of the practice of elder law.  And certainly, elder law practitioners are grossly underrepresented in the world of the Uniform Laws Committee and the people who populate it.  I suspect that same crowd would be somewhat less enthusiastic or cavalier about the adoption of a Uniform Dynasty Trust Act.

Uniformity in General

I get it that we are a more mobile society.  And yet, I like local culture, local ideas.  Having our own Michigan ways of doing things is ok with me.  That thinking seems to be outdated.

Full Disclosure

I was never a fan, and successfully fought against the UPOAA coming to Michigan some years back when it was first proposed, and when I was much more active in the probate/elderlaw bar.  Now, like a lot of things in my life, I think: ‘just let it go.’  If young lawyers want it, or at least don’t want to fight against it, then they can have it. No skin off my teeth.

Conclusion

These are just my thoughts.  I have colleagues for whom I have great respect, including those in our firm, who were instrumental in the process of bringing the UPOAA to Michigan.  To them I say: “Congratulations.”  Forgive me if I don’t say “Thanks.”


Share This Post with Friends
mm By: Doug Chalgian
Doug Chalgian

2 thoughts on “A Win for Uniformity

  1. I like the way you think Doug. I am concerned that execution of a FPOA does not revoke any prior poa’s. In my humble experience, the principal was executing the poa because they no longer wanted the previous named agent having any future dealing with their property or money. How did this get through?

Leave a Reply

Your email address will not be published. Required fields are marked *


Follow Plan To Be 100

Sign up to follow Plan To Be 100 and get notification of new posts!