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Senate Bill 92 (as introduced 1-27-11)
Sponsor: Senator Steven Bieda
Committee: Judiciary

Date Completed: 2-14-11

CONTENT The bill would amend the Estates and Protected Individuals Code (EPIC) to require a person to sign an acceptance of a power-of-attorney designation, acknowledging and accepting certain responsibilities, before exercising authority under a durable power of attorney.

Under EPIC, a durable power of attorney is a power of attorney (an instrument granting someone authority to act as agent or attorney in fact for the grantor) by which a person, the "principal", designates another as his or her attorney in fact (someone designated to transact business for another) in a writing that contains words showing the principal's intent that the authority conferred can be exercised notwithstanding the principal's subsequent disability or incapacity and, unless the power states a termination time, notwithstanding the lapse of time since the execution of the instrument.

Under the bill, before exercising authority as attorney in fact under a durable power of attorney, a person would have to sign an acceptance of the designation, acknowledging and accepting the obligation, liability, or right to do all of the following:

-- Act in the best interest of the principal.
-- Keep the principal informed of the attorney in fact's actions and account to the principal.
-- Not make gifts of the principal's property unless specifically authorized by the power of attorney.
-- Be prosecuted and punished for any criminal acts.
-- Keep the principal's assets in an account that did not include the attorney in fact's money or the money of another person.
-- Use the principal's property and income only for the principal's benefit, unless otherwise authorized specifically in the power of attorney.
-- Provide an accounting at any time to the principal, a fiduciary appointed on behalf of the principal, or the court, if requested.
-- Maintain sufficient records of every transaction and be prepared to defend each action.
-- Be held financially responsible for any transaction that was not specifically authorized in the power of attorney.
-- Hire an advisor, attorney, accountant, or other professional as reasonably required to comply with the attorney in fact's duties, and pay for the that professional's services from the principal's estate.
-- Unless prohibited by the power of attorney, receive reasonable compensation for the attorney in fact's services, which could be subject to the court's scrutiny.

MCL 700.5501 Legislative Analyst: Patrick Affholter

The bill would have no fiscal impact on State or local government.

Fiscal Analyst: Matthew Grabowski

Analysis was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an official statement of legislative intent. sb92/1112