Bulletin: MI2024003

Dear Associates:

Please be advised that on November 7, 2023, the Governor of Michigan signed into law Public Act 187 of 2023, which Act is known as the Uniform Power of Attorney Act (attached). The Act will become effective July 1, 2024, and repeals MCL 556.1 et seq. (Powers of Appointment) and replaces those sections with MCL 556.201 et seq. (The Michigan Uniform Power of Attorney Act.)

This Act codifies the language of the nationally promulgated Act that has been adopted in 31 states. The fundamental change is that any Power of Attorney (Power/POA) created on or after July 1, 2024, will constitute a Durable Power of Attorney even without recitation that it survives the disability of the principal if the Power satisfies the following requirements:

• Must be signed by the principal or signed in the principal’s conscious presence by another person directed by the principal to sign the principal’s name. [Note: If the Power is signed by a party other than the principal, Stewart Title Guaranty Company underwriter approval is required to use the Power.]
• Be acknowledged by the principal before a notary public or other person authorized to take acknowledgements.
• Signed in the presence of two witnesses, both of whom sign the Power so long as the witness is not the agent/attorney in fact, though one of the witnesses may act as the Notary.

If a Power of Attorney meets the above requirements, per sections 105 and 106 of the Act, the Power is deemed to be a Durable Power of Attorney.

Section 113 contemplates that the attorney in fact (AIF) is to “acknowledge” the grant of power, though there is no sanction articulated in the Act for failing to do so. Under subsection (3) the Power is still effective without an acknowledgement, so we won’t require evidence that the current POA, or previously recorded POA, is acknowledged.

Section 120, in essence, mandates the acceptance of the Power within 7 days of receipt. However, we shall continue to review Powers and determine their acceptability for insuring purposes based upon (3)(e) that we can in good faith reject the Power if we believe the Power is not valid, or the AIF doesn’t have the authority to perform as requested, or that in our estimation, there could be a challenge to the authority of the AIF.

Section 204 provides the AIF with the power over real property to sell, mortgage, buy or lease, etc. Thus, if there is a mere generalized grant of power over real property in the Power, there is a statutory presumption of power to sell and mortgage.

Article 3 of the Act provides statutorily promulgated forms for both the POA and the Acknowledgement. 

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