- Durable Power of Attorney
- Guardians and Conservators
- Contacting Your Legislator

Durable Power of Attorney

What is a Durable Power of Attorney?
A Durable Power of Attorney (POA) is a document signed by an adult of sound mind, who is 18 years or older, which grants another person the authority to make decisions or otherwise act on their behalf if they were to become incapacitated. A Durable Power of Attorney can be for healthcare or for finances.

A Durable Power of Attorney for Finances allows an adult to appoint someone to act as their agent in handling their financial matters. The adult can grant their agent as much or as little power as they wish. They can grant their agent the authority to handle anything from writing checks on their behalf, to handling property matters. The agent has a fiduciary duty to the adult. This means that they must act in the adult’s best interest and carry out their wishes to the best of their ability. The agent should keep very careful and precise records of the adult’s finances including receipts and other records for any money they have spent or received.

A Durable Power of Attorney for Healthcare is a document in which an adult designates someone to make healthcare & treatment decisions on their behalf. This designated person is called a “patient advocate” and they act ONLY when the adult loses the ability, either on a short term or long term basis, to make and communicate their choices. The determination of when an adult is no longer able to make decisions is determined by their doctor and one other physician or psychologist. The patient advocate can be anyone who is 18 years of age or older. It does not have to be a family member, but it must be someone who can be trusted with such important, life and death decisions. The person who is chosen must also be willing and able to serve as a patient advocate. It is imperative for the adult to discuss medical treatment wishes with the person before the patient advocate document is drafted and signed. The patient advocate is a “spokesperson” and should know what decisions the adult would make in any of the various treatment situations that may arise.

To have a valid Power of Attorney for Healthcare there must be a declaration of your intention to name a patient advocate in writing. The document must be signed by two witnesses who are not family members. The witnesses can not include the person who is the proposed patient advocate, nor an employee of a health care facility where the adult is a patient at the time the document is made. Once the form is signed the adult should keep the document in their records and should file a copy with any hospital, doctor, and dentist offices and any other facility where they receive treatment or care.

It is important for the adult to clearly and specifically express care and treatment wishes in the document and to discuss them with the patient advocate. The patient advocate has a duty to follow those wishes which have been expressed and to make decisions in keeping with the spirit and intent of discussions had with the adult.

For both the financial and the health care Power of Attorney, it is extremely important for the adult to choose someone they TRUST WITH THEIR LIFE, to handle these matters. These documents can be revoked, or cancelled, by the adult at any time. If at anytime the adult changes their mind about their designated patient advocate or their agent, or they wish to make any changes to these documents, they have a right to do so. It is best to do so in writing. Designating a patient advocate or an agent does not mean that the adult automatically surrenders their right to make decisions for themselves. They still have the right to control their affairs and make their own choices. A Power of Attorney document simply gives the adult security in the knowledge that in the event they are no longer able to participate in their own healthcare decisions, or handle their financial affairs, their wishes will still be followed.

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Guardians and Conservators

What are Guardians and Conservators?
If an adult does not have a Durable Power of Attorney in place and they are not able to make decisions due to long or short term incapacity, the Probate Court may need to appoint a Guardian or Conservator to help the adult with their personal and/or financial affairs. An adult guardianship should be considered a last resort rather than the first.

A Guardian makes decisions for the person regarding personal matters such as living arrangements and medical care. The incapacitated adult is called a “Ward”. A Guardian is appointed when someone who has an interest in the well being of the adult files a petition with the Probate Court. The court will the schedule a hearing, and will appoint a Guardian ad Litem, to be the eyes and ears for the court. The Guardian ad Litem will investigate and make a recommendation as to whether a guardian is necessary. They should only make this recommendation if the person has become legally incapacitated. Further, a guardianship may not be necessary even if the person has become legally incapacitated. Arrangements to handle their affairs may be made by signing documents at social security or if a person is on Medicaid. And certainly, if the person has completed a Durable Power of Attorney for Healthcare and done other pre-planning there should be no need for a Guardian.

The proposed Ward has a right to request limits on the Guardian's powers, to object to a particular person being appointed guardian, to be present at the hearing, to be represented by legal counsel, and to have legal counsel appointed for the individual if he or she is unable to afford legal counsel.

At the hearing the person who has petitioned for guardianship as well as any other interested party will go before the Probate Judge who will then determine if a guardian is to be appointed. An appointed Guardian is required to file an acceptance with the court. The Guardian must also file a yearly report on the adult’s condition. A Guardian has the responsibility of acting in the best interest of the adult, and they must always work towards restoring the adult to independence.

A guardianship can be terminated by anyone, including the adult, by filing a petition to terminate. The court can also be petitioned to have a new Guardian appointed.

A Conservator is appointed by the Probate Court to make decisions about the finances and property of an incapacitated adult. Having a Durable Power of Attorney for Finances often avoids the need for a Conservator. The Conservator must look after the assets of the adult. A Conservator may be required to post a bond which gives assurance that if they abuse their position, the incapacitated adult will have any money lost returned to them. The Conservator must file an inventory of the adult’s assets, and must file an annual account of the adult’s finances. The Conservator could be the same person as the Guardian or could be another individual or company.

For more information on Durable Power of Attorney for Healthcare or Finances, Guardianship, or other important pre-planning techniques contact:

Neighborhood Legal Services of Michigan
Elder Law & Advocacy Center
12121 Hemingway
Redford, MI 48239
(313) 937-8291
Fax: (313) 937-8893

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Contacting Your Legislator

Citizen Participation
“An informed and active citizenry is the lifeblood of a democracy.”

It is important in a democracy that citizens help keep their legislators informed. In order to be true representatives of the people, legislators need to now the thinking of their constituents on those issues upon which decisions will be make, and the facts on which such thinking and conclusions are based. As a citizen, you can help insure good legislation on state and national levels by communicating with your elected representatives at the proper time.

Letter Writing and E-Mail
A personal letter or e-mail message may be the most effective way of contacting your legislator, whether in Lansing or Washington. If you are new at this type of letter writing, here are some suggestions on how your letters can be most effective:

Address it properly. Use your legislator’s full name and correct spelling. For specific addresses, see individual lists. Examples:

U.S. SENATOR
The Honorable (full name)
United States Senator
Address
****
Dear Senator (last name):

U.S. REPRESENTATIVE
The Honorable (full name)
United States Representative
Address
****
Dear Congressman/woman (last name):

STATE SENATOR
The Honorable (full name)
State Senator
State Capitol
P.O. Box 30036
Lansing, MI 48909-7536
****
Dear Senator (last name):

STATE REPRESENTATIVE
The Honorable (full name)
State Representative
State Capitol
P.O. Box 30014
Lansing, MI 48909-7514
****
Dear Representative (last name):

ALWAYS INCLUDE YOUR LAST NAME AND ADDRESS ON THE LETTER ITSELF (printed or typed). A letter cannot be answered if there is no return address or the signature is not legible.

USE YOUR OWN WORDS. Avoid form letters and petitions. They tend to be identified as organized pressure campaigns and are often answered with form replies. However, a petition does let the legislator know that the issue is of concern to a large number of people (addresses with zip codes should be given for each signature). One thoughtful, factual, and well-reasoned letter carries more weight than 100 form letters or printed postcards.

TIME THE ARRIVAL OF YOUR LETTER. Try to write to your legislator, and the chairperson of the committee dealing with a bill, while a bill is still in committee and there is still time to take effective action. Sometimes a bill is out of committee, or has been passed, before a helpful, informative letter arrives which could have made a difference in the way the bill was written or in the final decision.

KNOW WHAT YOU ARE WRITING ABOUT. Identify the bill or issue of concern to you. Thousands of bills and resolutions are introduced in each session. If you write about a bill, try to give the bill number or describe it by popular title, such as “the Whistle blower’s Act,” or “the School Code.”

BE REASONABLY BRIEF. Many issues are complex, but a single page, presenting your opinions, facts, arguments, or proposals as clearly as possible, is preferred and welcomed by most legislators.

GIVE REASONS FOR YOUR POSITION. Explain how the issue would affect you, your family, business or profession - or the effect on your community or our state. If you have specialized knowledge, share it with your legislator. Concrete, expert arguments for or against the bill can be used by the legislator in determining the final outcome of a bill.

BE CONSTRUCTIVE. If a bill deals with a problem you admit exists, but you believe the bill is the wrong approach, explain what you believe to be the right approach.

GROUPS AND INDIVIDUALS SHOULD DETERMINE THEIR PRIORITY CONCERNS and contact the legislator on those specific issues rather than on every issue. The “pen pal” who writes every few days on ever conceivable subject tends to become a nuisance, rather than an effective voice of concern.

YOU MAY NOT ALWAYS RECEIVE A LONG, DETAILED RESPONSE to your letter. Legislators are very busy and usually cannot respond with long personal replies to each correspondent.

WRITE A LETTER OF APPRECIATION when you feel a legislator has done a good job. Legislators are human too and seldom receive thank you letters of encouragement.

Remember, on any one issue, even a few letters to one legislator can have an important impact. Sometimes just one letter, with a new perspective, or with clear-cut, persuasive arguments can be the decisive factor in a legislator’s action.

Source: “A Citizen’s Guide to State Government” prepared by the Michigan Legislature. For a printed copy, contact your local state legislator. Online version is available at www.michiganlegislature.org.

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