Power of attorney for a parent in Michigan: the forms, the signing rules, and how it fits with Medicaid and Home Help

The short answerFamilies often mix up two documents. A financial power of attorney covers money and paperwork. A patient advocate designation covers medical treatment decisions, and it is Michigan's name for a health care power of attorney. Each has its own signing rules. Neither one decides anything for MDHHS, and nothing here promises a legal result or that your parent will be approved for any program.

If you are helping a parent, you may hear "get power of attorney" from every direction. This page explains each document, who has to sign, and how they fit with Medicaid and Home Help paperwork. Already Caring is a private company and not a government agency, and we are not a law firm. This is general information, not legal advice. A Michigan elder law attorney or Michigan Legal Help can advise on your family's situation.

The financial power of attorney

A financial power of attorney is a signed paper where one person, the principal, lets another person, the agent, act for them. Michigan's Uniform Power of Attorney Act took effect on July 1, 2024. It covers powers of attorney signed on or after that date.

The law says a power of attorney made under these rules is durable. Durable means it keeps working if the principal becomes incapacitated. The exception is a document that says it ends at incapacity.

The law also includes an optional form. The statute says the form "may be used," so no one has to use it. The form comes with plain "Important information" for the principal and for the agent. For the agent, it says to act in good faith, keep records, and stay within the authority given.

Someone asked to accept a power of attorney, such as a bank, can ask for the agent's certification or have their own lawyer review it. Michigan Legal Help says they generally must accept a qualifying one within 7 days and cannot require a different form.

How to sign one so it is durable

For a power of attorney created on or after July 1, 2024, the principal signs it. Another person may sign at the principal's direction, but only while the principal is present and conscious.

To be durable when the principal signs it, the document needs one of these:

• an acknowledgment before a notary or another authorized official
• a signature before two witnesses, who also sign

A few more rules come with those:

• A person named as agent cannot be a witness.
• One of the two witnesses may be the notary.
• If someone else signs for the principal, it must be signed before two witnesses.
• A notarized signature is presumed genuine. A witnessed signature without a notary does not get that presumption.

An attorney can tell you which route fits your parent's situation.

If your parent signed one before July 1, 2024

Michigan law says a power of attorney signed in Michigan before the new act is valid in Michigan if it met the signing rules in effect when it was signed. A photocopy or an electronically sent copy generally has the same effect as the original, unless the document or another law says otherwise.

Whether an older document still fits your parent's needs is a good question for a Michigan attorney.

The agent's acknowledgment

Before acting under a durable power of attorney, the agent must sign a written acknowledgment of their duties. It should substantially follow the act's "Agent's Acknowledgment" template, which is part of the law.

If the agent does not sign it, the agent's authority is not affected. Their duties and their liability stay the same. Even so, the law asks for it.

The patient advocate designation

A patient advocate designation is a separate document. It names someone to speak on medical treatment decisions. Here is how the law describes it.

Who can make one

A person who is 18 or older and of sound mind can name another adult as their patient advocate. The designation must be in writing, signed, dated and voluntary. It must include a statement that the advocate's authority can be used only when the patient cannot take part in medical treatment decisions. It must be made part of the medical record before it is used.

Witnesses

The designation is signed in the presence of two witnesses, who also sign. The witnesses sign only if the patient appears to be of sound mind and free from duress, fraud or undue influence. A witness cannot be any of these:

• the patient's spouse, parent, child, grandchild or sibling
• the patient's presumptive heir or known devisee
• a physician
• the patient advocate
• an employee of the patient's life or health insurer
• an employee of a health facility treating the patient
• an employee of a home for the aged where the patient lives
• an employee of a community mental health program or hospital serving the patient

The advocate's acceptance

The patient advocate must sign an acceptance before acting, and must get a copy of the designation before it is used. The acceptance includes statements such as these: the advocate gets no pay beyond actual expenses, and a decision that could allow the patient to die needs clear and convincing evidence of the patient's wishes.

When it takes effect

The advocate's authority starts only after two professionals examine the patient. These are the attending physician and either another physician or a licensed psychologist. They must decide in writing that the patient cannot take part in medical treatment decisions. That finding is made part of the medical record and is reviewed at least once a year.

How these documents fit with Medicaid and Home Help paperwork

MDHHS policy in BAM 110 says a Medicaid application can be made on a client's behalf by a spouse, parent, legal guardian, adult child, stepchild or core relative. It also lists any other person who is at least 18 or married and has authorization to act for the client.

The same policy also names these as authorized representatives:

• an adult child or stepchild
• a core relative
• a person the individual designated in writing
• a court-appointed representative

The application is signed by the client or the authorized representative. BAM 110 says "An authorization to represent is a form of a power of attorney." It also says the authorization ends when the person who gave it dies.

A written document can make it clear who your parent chose. Still, MDHHS decides every application, and its office decides what it needs to see. Ask your county office before you apply. Our guide to applying for Michigan Medicaid for a parent walks through the steps, and the Michigan Home Help program guide covers what comes after. If you are weighing the long-term picture, read Michigan Medicaid estate recovery too.

If your parent can no longer sign

If your parent can no longer sign these papers, a court process such as guardianship may be the route. That is a question for a Michigan attorney or Michigan Legal Help. They can explain what fits your family.

Questions to take to an attorney or Michigan Legal Help

• Does my parent already have a power of attorney or a patient advocate designation, and when was each signed?
• If one was signed before July 1, 2024, does it still fit my parent's needs?
• Should the financial power of attorney be notarized, witnessed, or both?
• Who should be the agent, and who should be the backup?
• Who can serve as witnesses for the patient advocate designation, given my family?
• Has the person we chose been told, and will they sign the acceptance or the acknowledgment?
• Where will the signed copies be kept, and who gets a copy?
• What does the county MDHHS office need to see when I apply for my parent?

Questions families ask

What is the difference between a power of attorney and a patient advocate designation?

A financial power of attorney lets an agent handle money and paperwork your parent allows. A patient advocate designation is Michigan's health care power of attorney, and the advocate speaks on medical treatment decisions only when your parent cannot take part in them. They are two separate documents with separate signing rules.

Does a Michigan power of attorney have to be notarized?

For a power of attorney created on or after July 1, 2024 to be durable when the principal signs it, the law says it must be acknowledged before a notary or signed before two witnesses who also sign. A notarized signature is presumed genuine. A witnessed signature without a notary does not get that presumption.

Can the agent be a witness?

No for a financial power of attorney: a person named as agent cannot be a witness. For a patient advocate designation, the patient advocate cannot be a witness either, and neither can the patient's spouse, parent, child, grandchild, sibling, presumptive heir or known devisee, among others listed in the law.

Does a power of attorney signed before July 1, 2024 still work?

Michigan law says a power of attorney signed in Michigan before the new act is valid in Michigan if it met the signing rules in effect when it was signed. A photocopy or an electronically sent copy generally has the same effect as the original unless the document or another law says otherwise.

Can a power of attorney be used to apply for Medicaid for my parent?

MDHHS policy (BAM 110) says an application can be made for a client by an adult child, a stepchild, a core relative, or another adult with authorization to act for the client. It also says an authorization to represent is a form of a power of attorney. Ask your county MDHHS office what it needs, because MDHHS decides every application.