Waterford, MI asked in Health Care Law, Estate Planning, Real Estate Law and Probate for Michigan

Q: Can my sister set up POA (for legal and medical) while she is hospitalized? She is still mentally competent.

My sister is in the hospital, for kidney disease and another life-threatening illness. She will remain there for another 7 weeks, after which she is expected to get a kidney transplant.  She is mentally competent--understands what the doctors tell her, has normal conversations with us and can make her own decisions.  The pain medication she's on sedates her, and because she is hospitalized. Based on what I read, it seems that POA and a trust would be the best paths vs. guardianship and conservator; we really don't want to deal with courts.

Another thing: she is separated from her husband.  He moved out, nine months ago and she had intended to file for divorce, but then got stricken with these illnesses.  He is on the title of the house (which she bought before she married him; the mortgage company told her that he was required to be on the title, when she refinanced).   If she puts the house in a trust, would it be better to quit-claim him off the deed first?

1 Lawyer Answer
Kenneth V Zichi
Kenneth V Zichi
  • Estate Planning Lawyer
  • Fowlerville, MI
  • Licensed in Michigan

A: The short answer to your first questions is yes, if she is mentally competent she can sign powers of attorney no matter what the state of her physical health is.

The much better answer to all these questions is she should not be making these decisions without the involvement of a local attorney. Frankly, it sounds like she should have done that a while ago -- like when the mortgage company provided legal advice she followed without talking to an attorney.

First of all you can't just 'quit claim' someone off a deed. Trusts are complicated legal documents that should not be entered into without fully understanding all the ramifications, including 'due on sale' clauses in mortgages etc. Find a LOCAL attorney who can make a 'house call' to the hospital -- assuming that is possible under the hospital rules -- and go from there. It may take some 'special orders' to allow, so get that in place first.

Good luck, -- This answer is offered for informational purposes only and does not constitute legal advice or create an attorney/client relationship.

I am licensed to practice in Michigan only. Please seek competent local legal help if you feel you need legal advice

Trent Harris agrees with this answer

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