As a Michigan probate lawyer, a question I have seen is "what happens if a person does not have a power of attorney?" Like all good legal answers, it depends.
It really depends on the facts and what the future holds. Basically, if you were incapacitated and did not have an executed power of attorney form, the probate court would be forced to appoint a conservator and/or guardian for you to manage your financial affairs on your behalf. This conservatorship would then be monitored by the court. This is what we call a Living Probate. This Living Probate could last for years with continuous court involvement and legal fees.
Now if that same person had executed a durable power of attorney prior to incapacitation they would be able to avoid the whole court created guardianship and conservatorship process. The power of attorney document would have language appointing who would serve the role and how the agent in fact would serve in their role.
With a power of attorney, the process is streamlined, more cost effect, and you're able to exert more control over the decisions you were able to make with regard to the powers of the attorney.
Christopher J. Berry, Esq., An Oakland County Estate and Trust Attorney, is a Partner with The Law Office of Witzke Berry PLLC, which practices in the areas of Estate Planning, Michigan Medicaid Planning, and Michigan Probate Litigation.
