Bill Text: MI HB5369 | 2013-2014 | 97th Legislature | Introduced
Bill Title: Probate; powers of attorney; authority or agent; enact fiduciary access to digital assets act. Amends sec. 5501 of 1998 PA 386 (MCL 700.5501) & adds sec. 5501a. TIE BAR WITH: HB 5366'14, HB 5367'14, HB 5368'14, HB 5370'14
Spectrum: Moderate Partisan Bill (Republican 6-1)
Status: (Introduced - Dead) 2014-10-02 - Referred To Second Reading [HB5369 Detail]
Download: Michigan-2013-HB5369-Introduced.html
HOUSE BILL No. 5369
February 26, 2014, Introduced by Reps. Leonard, LaFontaine, Cotter, Geiss, Lauwers, Kowall and Jenkins and referred to the Committee on Judiciary.
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending section 5501 (MCL 700.5501), as amended by 2012 PA 141,
and by adding section 5501a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 5501. (1) A durable power of attorney is a power of
attorney by which a principal designates another as the principal's
attorney-in-fact in a writing that contains the words "This power
of attorney is not affected by the principal's subsequent
disability or incapacity, or by the lapse of time", or "This power
of attorney is effective upon the disability or incapacity of the
principal", or similar words showing the principal's intent that
the authority conferred is exercisable notwithstanding the
principal's subsequent disability or incapacity and, unless the
power states a termination time, notwithstanding the lapse of time
since the execution of the instrument.
(2)
A durable power of attorney under this section shall must
be dated and signed voluntarily by the principal or signed by a
notary
public on the principal's behalf pursuant to under section
33 of the Michigan notary public act, 2003 PA 238, MCL 55.293. The
durable
power of attorney shall must
be 1 or both of the following:
(a) Signed in the presence of 2 witnesses, neither of whom is
the attorney-in-fact, and both of whom also sign the durable power
of attorney.
(b) Acknowledged by the principal before a notary public, who
endorses on the durable power of attorney a certificate of that
acknowledgment and the true date of taking the acknowledgment.
(3) An attorney-in-fact designated and acting under a durable
power of attorney has the authority, rights, responsibilities, and
limitations as provided by law with respect to a durable power of
attorney, including, but not limited to, all of the following:
(a) Except as provided in the durable power of attorney, the
attorney-in-fact shall act in accordance with the standards of care
applicable to fiduciaries exercising powers under a durable power
of attorney.
(b) The attorney-in-fact shall take reasonable steps to follow
the instructions of the principal.
(c) Upon request of the principal, the attorney-in-fact shall
keep the principal informed of the attorney-in-fact's actions. The
attorney-in-fact shall provide an accounting to the principal upon
request of the principal, to a conservator or guardian appointed on
behalf of the principal upon request of the guardian or
conservator, or pursuant to judicial order.
(d) The attorney-in-fact shall not make a gift of all or any
part of the principal's assets, unless provided for in the durable
power of attorney or by judicial order.
(e) Unless provided in the durable power of attorney or by
judicial order, the attorney-in-fact, while acting as attorney-in-
fact, shall not create an account or other asset in joint tenancy
between the principal and the attorney-in-fact.
(f) Unless provided in the durable power of attorney or by
judicial order and subject to the applicable terms-of-service
agreement, the attorney-in-fact, while acting as attorney-in-fact,
shall not do any of the following:
(i) Exercise control over digital property.
(ii) Exercise a right in digital property.
(iii) Change a governing instrument affecting the digital
property.
(g) (f)
The attorney-in-fact shall maintain
records of the
attorney-in-fact's actions on behalf of the principal, including
transactions, receipts, disbursements, and investments.
(h) (g)
The attorney-in-fact may be liable
for any damage or
loss to the principal, and may be subject to any other available
remedy, for breach of fiduciary duty owed to the principal. In the
durable power of attorney, the principal may exonerate the
attorney-in-fact of any liability to the principal for breach of
fiduciary duty except for actions committed by the attorney-in-fact
in bad faith or with reckless indifference. An exoneration clause
is not enforceable if inserted as the result of an abuse by the
attorney-in-fact of a fiduciary or confidential relationship to the
principal.
(i) (h)
The attorney-in-fact may receive
reasonable
compensation for the attorney-in-fact's services if provided for in
the durable power of attorney.
(4) Before exercising authority under a durable power of
attorney, an attorney-in-fact shall execute an acknowledgment of
the attorney-in-fact's responsibilities that contains all of the
substantive statements in substantially the following form:
I, ____________________, have been appointed as attorney-in-
fact for ________________________, the principal, under a durable
power of attorney dated __________. By signing this document, I
acknowledge that if and when I act as attorney-in-fact, all of the
following apply:
(a) Except as provided in the durable power of attorney, I
must act in accordance with the standards of care applicable to
fiduciaries acting under durable powers of attorney.
(b) I must take reasonable steps to follow the instructions of
the principal.
(c) Upon request of the principal, I must keep the principal
informed of my actions. I must provide an accounting to the
principal upon request of the principal, to a guardian or
conservator appointed on behalf of the principal upon the request
of that guardian or conservator, or pursuant to judicial order.
(d) I cannot make a gift from the principal's property, unless
provided for in the durable power of attorney or by judicial order.
(e) Unless provided in the durable power of attorney or by
judicial
order, I, while acting as attorney-in-fact, shall not
cannot create an account or other asset in joint tenancy between
the principal and me.
(f) Unless provided in the durable power of attorney or by
judicial order and subject to the applicable terms-of-service
agreement, I, while acting as attorney-in-fact, cannot do any of
the following:
(i) Exercise control over the principal's digital property.
(ii) Exercise a right in the principal's digital property.
(iii) Change a governing instrument affecting the principal's
digital property.
(g) (f)
I must maintain records of my
transactions as
attorney-in-fact, including receipts, disbursements, and
investments.
(h) (g)
I may be liable for any damage or
loss to the
principal, and may be subject to any other available remedy, for
breach of fiduciary duty owed to the principal. In the durable
power of attorney, the principal may exonerate me of any liability
to the principal for breach of fiduciary duty except for actions
committed by me in bad faith or with reckless indifference. An
exoneration clause is not enforceable if inserted as the result of
my abuse of a fiduciary or confidential relationship to the
principal.
(i) (h)
I may be subject to civil or
criminal penalties if I
violate my duties to the principal.
Signature: _______________________ Date: ____________________
(5) A third party is not liable to the principal or any other
person because the third party has complied in good faith with
instructions from an attorney-in-fact named in a durable power of
attorney whether or not the attorney-in-fact has executed an
acknowledgment that complies with subsection (4). A third party is
not liable to the principal or any other person if the third party
requires an attorney-in-fact named in a durable power of attorney
to execute an acknowledgment that complies with subsection (4)
before recognizing the durable power of attorney.
(6) An attorney-in-fact's failure to comply with subsection
(4) does not affect the attorney-in-fact's authority to act for the
principal as provided for in the durable power of attorney and does
not affect the attorney-in-fact's responsibilities or potential
liability to the principal.
(7)
Subsections Except as
otherwise provided in this
subsection, subsections (2) to (6) do not apply to any of the
following:
(a) A durable power of attorney executed before October 1,
2012. Subsections (3)(f) and (4)(f) do not apply to a durable power
of attorney executed before October 1, 2014.
(b) A delegation under section 5103 or a similar power of
attorney created by a parent or guardian regarding the care,
custody, or property of a minor child or ward.
(c) A patient advocate designation or a similar power of
attorney relating to the principal's health care.
(d) A durable power of attorney that is coupled with an
interest in the subject matter of the power.
(e) A durable power of attorney that is contained in or is
part of a loan agreement, security agreement, pledge agreement,
escrow agreement, or other similar transaction.
(f) A durable power of attorney in connection with a
transaction with a joint venture, limited liability company,
partnership, limited partnership, limited liability partnership,
corporation, condominium, condominium association, condominium
trust, or similar entity, including, without limitation, a voting
agreement, voting trust, joint venture agreement, royalty
agreement, license agreement, proxy, shareholder's agreement,
operating agreement, partnership agreement, management agreement,
subscription agreement, certification of incorporation, bylaws, or
other agreement that primarily relates to such an entity.
(g) A power of attorney given primarily for a business or a
commercial purpose.
(h) A power of attorney created on a form prescribed by a
government or a governmental subdivision, agency, or
instrumentality for a governmental purpose.
Sec. 5501a. (1) On receipt of an attorney-in-fact's written
request under this subsection for access to digital property,
ownership of digital property, or a copy of a digital asset, a
digital custodian shall provide the attorney-in-fact with the
requested access, ownership, or copy, as applicable. An attorney-
in-fact's written request under this subsection must be accompanied
by a copy of the durable power of attorney granting the attorney-
in-fact power over digital property.
(2) A digital custodian shall comply not later than 56 days
after receipt of a request made under subsection (1). If the
digital custodian fails to comply, the attorney-in-fact may
petition the court for an order directing compliance. If, not later
than 56 days after receiving a request made under subsection (1),
the digital custodian fails to comply with the request, the
attorney-in-fact may petition the court for an order directing
compliance.
(3) A digital custodian is not liable for an action done in
compliance with this section.
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 97th Legislature are
enacted into law:
(a) Senate Bill No. ____ or House Bill No. 5368 (request no.
01198'13).
(b) Senate Bill No. ____ or House Bill No. 5367 (request no.
04550'13).
(c) Senate Bill No. ____ or House Bill No. 5366 (request no.
04551'13).
(d) Senate Bill No. ____ or House Bill No. 5370 (request no.
04553'13).
