Legislative Analysis
Phone: (517) 373-8080
UNIFORM POWER OF ATTORNEY ACT
http://www.house.mi.gov/hfa
House Bill 4644 as reported from committee Analysis available at
Sponsor: Rep. Kara Hope http://www.legislature.mi.gov
House Bills 4645 and 4646 as reported from committee
Sponsor: Rep. Jim Haadsma
Committee: Judiciary
Revised 9-1-23
BRIEF SUMMARY:
House Bill 4644 would create a new act, the Uniform Power of Attorney Act, and repeal
sections of the Estates and Protected Individuals Code (EPIC) that now provide for a durable
power of attorney. 1 House Bills 4645 and 4646 would revise references to powers of attorney
in the Natural Resources and Environmental Protection Act and the Public Health Code,
respectively, to reflect those changes. Those bills are not further described in this summary.
A power of attorney is a legal document under which one individual provides another with the
authority to act for them in specified matters. (In the bill and the brief description that follows,
the person making the power of attorney delegation is called the “principal,” the person that
power is delegated to is called the “agent.”) A durable power of attorney is an agreement that
stays in effect if the principal suffers an incapacitating event. Generally speaking, an agent
acting under a power of attorney must do so in the principal’s best interests.
The Uniform Power of Attorney Act is a model statute developed by the Uniform Law
Commission in 2006. 2 Uniform state laws are intended to standardize procedures across states
to promote consistency and regulatory ease for people or entities that change states or have
dealings in more than one. The Uniform Power of Attorney Act is intended to provide cross-
jurisdictional consistency regarding power of attorney agreements.
A Michigan Bar Journal summary of the Uniform Power of Attorney Act says that it “provides
a series of default rules that give broad authority to the agent to act while protecting the
principal from fraud, require the agent to financially reimburse the principal if the agent
violates the rules, and protect third parties that rely on the power.” 3
Among the notable changes is that, under current Michigan law, a power of attorney is not a
durable power of attorney unless it contains an affirmative statement that the agreement is not
affected by the later incapacity of the principal. Under the Uniform Power of Attorney Act, a
power of attorney meeting certain requirements as to its execution would be durable unless it
contains a provision expressly providing that it is not durable.
1
Sections 5501 to 5505: https://www.legislature.mi.gov/documents/mcl/pdf/mcl-386-1998-V-5.pdf
2
https://www.uniformlaws.org/committees/community-home?communitykey=b1975254-8370-4a7c-947f-
e5af0d6cb07c
3
https://www.michbar.org/journal/Details/Uniform-Power-of-Attorney-Act-on-the-horizon?ArticleID=4617
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BACKGROUND:
According to the Uniform Law Commission:
The concept of a power of attorney was first incorporated into the Uniform Probate
Code in 1969 to offer an inexpensive method of surrogate decision making to those
whose modest assets did not justify pre-incapacity planning with a trust or post-
incapacity property management with a guardianship. After more than three decades,
the durable power of attorney is now used by both the wealthy and the non-wealthy for
incapacity planning as well as convenience. The Uniform Power of Attorney Act
(2006) (UPOAA) is necessary because over the years many states adopted non-uniform
provisions to deal with issues on which the Uniform Probate Code and the original
Uniform Durable Power of Attorney Act are silent. The UPOAA, which provides
uniformity on these issues, enhances the usefulness of durable powers while protecting
the principal, the agent, and those who deal with the agent.
A national study of durable powers of attorney, conducted in 2002, revealed the need
to address numerous issues not contemplated in the original Uniform Durable Power
of Attorney Act such as the authority of multiple agents, the authority of later-
appointed guardians, and the impact of dissolution or annulment of the principals
marriage to the agent. The study also revealed other topics about which the states had
legislated, although not necessarily in a divergent manner, including: successor agents,
execution requirements, portability, sanctions for dishonor of a power of attorney, and
restrictions on powers that alter a principals estate plan. In a national survey, trust and
estate lawyers responses demonstrated a high degree of consensus about the need to
improve portability and acceptance of powers of attorneys as well as the need to better
protect incapacitated principals.
As of June 13, 2023, 30 states and the District of Columbia have enacted the Uniform Power
of Attorney Act or a substantially similar law. 4
DETAILED SUMMARY:
ARTICLE 1. GENERAL PROVISIONS
The new act would apply to all powers of attorney except the following:
• A power to the extent it is coupled with an interest in the subject of the power, including
a power given to or for the benefit of a creditor in connection with a credit transaction.
• A patient advocate designation under EPIC.
• A delegation of a parent’s or guardian’s power regarding care, custody, or property of
a minor child or ward under EPIC.
• A proxy or other delegation to exercise voting rights or management rights with respect
to an entity.
• A power created on a form prescribed by a government or governmental subdivision,
agency, or instrumentality for a governmental purpose.
4
Alabama, Arkansas, Colorado, Connecticut, Georgia, Hawaii, Idaho, Iowa, Kentucky, Maine, Maryland, Montana,
Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina,
South Dakota, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.
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 Power of attorney or power would mean a written record that grants authority to an
agent to act in one or more matters on behalf of the principal, regardless of whether
the term “power of attorney” is used.
Agent would mean a person granted authority to act for a principal under a power of
attorney, whether denominated an agent, attorney-in-fact, or otherwise. Agent would
include an original agent, a coagent, a successor agent, and a person to whom an agent’s
authority is delegated.
Principal would mean an individual who grants authority to an agent in a power of
attorney.
Knowledge of a fact
Under the bill, except as described below, a person would have knowledge of a fact involving
a power of attorney if one or more of the following are true:
• The person has actual knowledge of the fact.
• The person has received a notice or notification of the fact.
• From all the facts and circumstances known to the person at the time in question, the
person has reason to know the fact.
Actual knowledge would mean knowledge in fact.
An entity that conducts activities through one or more employees would have notice or
knowledge of a fact involving a power of attorney, a principal, or an agent only from the time
the information is received by an employee conducting a transaction or from the time the
information would have been brought to the employee’s attention if the entity had exercised
reasonable diligence.
Transaction would mean a transaction that is conducted for the entity and that involves
the power of attorney.
Reasonable diligence would mean the maintenance of and reasonable compliance with
reasonable routines for communicating significant information to the employee
conducting the transaction. Reasonable diligence would not require an employee of the
entity to communicate information unless the communication is part of the individual’s
regular duties or the individual knows a matter concerning the transaction would be
materially affected by the information.
An entity that conducts activities through one or more employees would have actual knowledge
of a fact relating to a power of attorney, a principal, or an agent only if the employee conducting
the transaction has actual knowledge of the fact.
Creation and execution
To be effective, a power of attorney created on or after the effective date of the bill would have
to be signed by one of the following individuals:
• The principal.
• If signed in the principal’s conscious presence, another individual directed by the
principal to sign the principal’s name.
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 To be durable, a power of attorney signed by the principal as described above would have to
meet one of the following requirements:
• Be acknowledged by the principal before a notary public or other individual authorized
to take acknowledgments.
• Be signed in the presence of two witnesses, both of whom also sign the power, subject
to both of the following:
o A witness may not be an agent nominated in the power.
o One of the witnesses may be an individual who also acts, in the principal’s
execution of the power, as a notary public or other individual authorized to take
acknowledgments.
• To be durable, a power of attorney signed in the principal’s conscious presence as
described above would, regardless of whether the power is acknowledged, have to be
signed in the presence of in the presence of two witnesses, both of whom also sign the
power, subject to both of the following:
o A witness may not be an agent nominated in the power.
o One of the witnesses may be an individual who also acts, in the principal’s
execution of the power, as a notary public or other individual authorized to take
acknowledgments.
A power of attorney created on or after the effective date of this act that is executed in
accordance with the above (to be durable) would be durable unless it expressly provides that it
is terminated by the incapacity of the principal. A power of attorney created on or after the
effective date of this act that is not executed in accordance with the above (to be durable) would
not be durable.
A signature on a power of attorney would be presumed genuine if the principal acknowledges
the signature before a notary public or other individual authorized by law to take
acknowledgments. A signature on a power of attorney that is witnessed as described above but
is not acknowledged would not be entitled to this presumption of genuineness and the power
would not be acknowledged within the meaning of the provisions described under “Acceptance
of power of attorney,” below.
Validity and effect
A power of attorney executed in Michigan would be valid in Michigan if, when the power was
executed, the execution complied with the requirements for the execution of a power of
attorney under Michigan law as it existed at that time.
A power of attorney not executed in Michigan would be valid in Michigan if, when the power
was executed, the execution complied with either of the following:
• The requirements for the execution of a power of attorney under the law of the
jurisdiction that determines the meaning and effect of the power as described below or
under the law of the jurisdiction in which the principal was domiciled at the time of
execution.
• The requirements for a military power of attorney under 10 USC 1044b.
Except as otherwise provided in the power of attorney or by another statute, a photocopy or
electronically transmitted copy of an original power of attorney would have the same effect as
the original.
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 The meaning and effect of a power of attorney would be determined by the law of the
jurisdiction indicated in the power and, in the absence of an indication of jurisdiction, by the
law of the jurisdiction in which the power was executed.
Conservator or guardian
In a power of attorney, a principal could nominate a conservator or guardian of the principal’s
estate or guardian of the principal’s person for a protective proceeding if a protective
proceeding for the principal’s estate or person commences after the principal executes the
power. If consistent with applicable law on priority and suitability, the court would have to
make its appointment in accordance with the principal’s most recent nomination in a power of
attorney.
If, after a principal executes a power of attorney, a court appoints a conservator or guardian of
the principal’s estate or other fiduciary charged with the management of some or all of the
principal’s property, both of the following would apply:
• The agent would be accountable to the fiduciary as well as to the principal.
• The power of attorney would not be terminated, and the agent’s authority would
continue unless limited, suspended, or terminated by the court.
Time of effectiveness
A power of attorney would be effective when executed unless the principal provides in the
power that it becomes effective at a specified future date or on the occurrence of a specified
future event or contingency. If a power of attorney is intended to become effective on the
occurrence of a specified future event or contingency, the principal could , in the power,
authorize one or more persons to determine in a record that the event or contingency has
occurred.
If a power of attorney is intended to become effective on the principal’s incapacity and the
principal has not authorized a person to determine whether the principal is incapacitated, or the
person authorized is unable or unwilling to make the determination, the power would become
effective upon a determination in a record by either of the following:
• A physician or licensed psychologist that the principal is incapacitated.
• An attorney at law, a judge, or an appropriate governmental official that the principal
is incapacitated.
Incapacity, as used in the act, would mean the inability of an individual to manage
property or business affairs for either of the following reasons:
• The individual has an impairment in the ability to receive and evaluate
information or make or communicate decisions even with the use of
technological assistance.
• The individual is any of the following:
o Missing.
o Detained, including incarcerated in a penal system.
o Outside the United States and unable to return.
A person authorized by the principal in the power of attorney to determine that the principal is
incapacitated could, to the extent necessary or convenient in making that determination, act as
the principal’s personal representative under the Health Insurance Portability and
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 Accountability Act, sections 1171 to 1179 of the Social Security Act, and applicable
regulations, to obtain access to the principal’s health care information and communicate with
the principal’s health care provider.
Termination
A power of attorney would terminate if any of the following occur:
• The principal dies.
• For a power of attorney that is not durable, the principal becomes incapacitated.
• The principal revokes the power of attorney.
• An event occurs that, according to the terms of the power of attorney, terminates the
power.
• For a power of attorney that is intended only for a specified, limited purpose, the
specified purpose of the power is accomplished.
• The principal revokes the agent’s authority or the agent dies, becomes incapacitated,
or resigns, and the power of attorney does not provide for another agent to act under
the power.
An agent’s authority would terminate if any of the following occur:
• The principal revokes the authority.
• The agent dies, becomes incapacitated, or resigns.
• An action is filed for the dissolution or annulment of the agent’s marriage to the
principal or for the legal sepa