On May 3, 2011, the Michigan Senate passed a bill (SB-0092) that would amend MCL 700.5501 relating to Durable Powers of Attorney.  One thing this proposed amendment would require is that the Attorney-in-Fact (AIF) must accept the authority and responsibility given in the document.  The purpose of this change to the statute is to specifically state acceptable and prohibited conduct of the AIF.

While this is an admirable notion, there appears to be a glitch in the language of the Bill.  The current language of the Bill states that the AIF must sign an acceptance using language (or substantially the same language) provided by the legislature.  The problem lies in the following statement of the proposed amendment and acceptance:

“I CANNOT COMMINGLE THE PRINCIPAL’S ASSETS WITH MY ASSETS UNLESS PROVIDED FOR IN THE DURABLE POWER OF ATTORNEY OR UNLESS I AM THE PRINCIPAL’S SPOUSE OR ANCESTOR OR DESCENDANT BY BLOOD OR ADOPTION.” (Emphasis mine.)

Essentially, this says to the AIF that commingling of funds is OKAY if I meet the relationship status in the acceptance.  Unfortunately, that may not be what the Principal intended. In fact, it may be contrary to the powers granted or prohibited in the document itself.  The potential conflicts in this proposed amendment could have unintended results and could cause unnecessary litigation.

The proposed language above would not affect Durable Powers of Attorney drafted on or before April 1, 2012.