Often times, as I meet with clients, I learn that a client has attempted to do their own estate planning. While Michigan law allows for holographic wills (a Will written and executed by an individual in their own handwriting) there are certain complexities that remain with estate planning in Michigan.
In fact, the biggest error that I routinely see is the failure to address “living probate”, by a “Do It Yourself Estate Planner”. As you may be aware, Michigan law allows for two type of probate: (1) living probate; and, (2) probate of the Estate. As most people try to avoid the probate of an estate after death, they often ignore avoiding probate in the event of a disability.
Simply stated, if you become disabled and are unable to handle your own affairs and have NOT made arrangements by executing power of attorney documents, your family will be forced to seek a guardianship and conservatorship in Probate Court.
This is because, in addition, to having authority of decedent’s estates, the probate court has exclusive jurisdiction (authority) over the matters of an incapacitated person. Although a guardian and conservator will have authority over the affairs and decisions of a disabled person, Court involvement is often expensive, restrictive and time consuming. Fortunately, for those who plan with an attorney, probate can be avoided at the time of incapacity and death.
Michigan law provides us with tools to avoid both forms of probate. Living probate can easily be avoided by executing power of attorney documents. A general durable power of attorney allows an individual to appoint someone else to handle his or her day-to-day affairs and manage his or her finances. A medical power of attorney allows an individual to appoint someone to handle his or her medical decisions in the event of disability.
Power of attorney documents can be complex. Therefore, it is always advisable to consult with a qualified elder law attorney to draft these documents to meet your estate planning goals. If you reside in Macomb County, or in the Metro Detroit area, and, are looking for an elder law attorney, call us at (586) 264-3756.