Power of Attorney

What is a Power of Attorney?
A Power of Attorney is a written and notarized document giving a person the legal power to act on behalf of another person according to the terms of the Power of Attorney. The Probate Court does not have forms for adults or become involved with these types of documents.  Please refer to "Powers of Attorney and Guardianship of Minors" for information of Powers of Attorney for a minor.  

What is the difference between Power of Attorney and guardianship or conservatorship?
The main difference between a Power of Attorney and a guardianship or conservatorship is court involvement. Guardianships and conservatorships are fiduciary relationships created by the court. The court authorizes a person to act as guardian or conservator of another person according to the terms of the court order.

If I have a Power of Attorney, do I need a guardianship or conservatorship?
It depends upon the authority granted by the Power of Attorney. A power of attorney may grant the individual broad powers over the person and his/her estate, or limited powers to act only in certain circumstances. If the Power of Attorney grants only limited powers, a guardian or conservator may be necessary or desirable.

Can a Power of Attorney be filed with the Probate Court?
No. Powers of Attorney are not filed with the Probate Court.

Can a dispute over a Power of Attorney be heard in Probate Court?
Yes. If a guardianship or conservatorship was established, and the guardian or conservator wanted to terminate the Power of Attorney and a dispute arose over the management of the assets by the person acting under the Power of Attorney, the Probate Court could hear this matter.


POWERS OF ATTORNEY AND GUARDIANSHIP OF MINORS

There are various types of arrangements available under the Estates and Protected Individuals Code when a minor needs someone other than a parent to make decisions usually made by a parent. The Estates and Protected Individuals Code is an Act adopted by the legislature to govern proceedings in Probate Court.

Power of Attorney:
A parent can execute a power of attorney delegating the parent's power regarding the case, custody, or property of a minor for a period not to exceed six months. A guardian of a minor may also execute a power of attorney. MCL 700.5103. If a guardian executes a power of attorney, the guardian must notify the Court within 7 days and provide the Court with the person's name, address, and telephone number.

This power is limited to the extent that it cannot include a power to release a minor for adoption or consent to adoption and marriage. The power of attorney cannot contain an automatic renewal clause. Therefore, any renewal of the power must result from another execution of the power for each period not to exceed six months. The Supreme Court has ruled that a power of attorney may be used to establish school residency when the child resides with a relative. Feaster v Portage Public Schools, 451 Mich. 351 (1996).

A power of attorney is ideal for use by parents who are going to take a trip. In fact, when parents leave town even for a short period of time, someone should have the delegated parental powers to make decisions regarding the child or children, especially those decisions centering around consent to medical care. The advantages of a power of attorney over guardianship is that it does not limit the power of the parent to act if the parent chooses to do so, and the power of attorney is not established in Court proceedings.
 
Forms for minor Power of Attorney are available at our office or online Power of Attorney form (Minor).


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