Incapacity and Powers of Attorney

by James P. Lampertius

The problem of diminished capacity has caused significant social and legal pressures. We as attorneys are called to sophisticated approaches, especially in the assessment, drafting and use of durable powers of attorney.

The first half of this presentation treats the Medical Durable Power of Attorney -- our main advance directive in Michigan. It offers specific provisions to tailor documents to various client needs. To enable these specialized terms and approaches, this section concentrates on understanding:

  1. The numerous and different types of advance directives (both formal and informal);
  2. The law surrounding advance directives, specifically the developments under federal constitutional law, federal legislation, Michigan legislation, Michigan common law and instructive laws under other states and legal movements;
  3. The fundamental medical conditions, medical treatments and medical systems; and,
  4. Your client’s capabilities, wishes, preferences and pressures.

The second half of this presentation focuses on the General Durable Power of Attorney (“DPA”) – the popular estate planning “workhorse” for management of affairs. Here, too, I offer specific terms and provisions to customize your documents for issues involving incapacity. This section defines:

  1. The role of a DPA compared to conservatorship, joint accounts and revocable living trusts;
  2. The law surrounding DPAs on questions about capacity, execution and multiple agents;
  3. Specific needs during incapacity, specifically handling the house, gift powers, trust powers, retirement plans, 529 plans and disclaimer powers;
  4. Ways to curb abuses; and
  5. Methods for acceptance by financial institutions.
 

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