By Colleen M. Fries
An advance directive is a written instruction, such as a living will or Durable Power of Attorney for Healthcare, that outlines care, custody, and medical treatment during a person’s incapacity. In Michigan, we use a durable power of attorney for healthcare. We call this type of power of attorney “durable” because it lasts after a person becomes incapacitated and unable to make their own decisions. In this article, we use the term “Patient” for the person making the instructions and “Patient Advocate” as the person appointed to act when the Patient becomes incapacitated.
Requirements of a Durable Power of Attorney for Healthcare
The Patient must be 18-years-old, competent, and executing the Durable Power of Attorney for Healthcare voluntarily. The Durable Power of Attorney for Healthcare must be in writing, dated, signed, witnessed by two witnesses, and part of the Patient’s medical record. By signing the document, the witnesses are declaring that the Patient appears to be of sound mind and under no duress, fraud, or undue influence, meaning no one is forcing the Patient to sign the document. The following list of people cannot be witnesses:
· Patient’s spouse;
· Patient’s parent;
· Patient’s child;
· Patient’s grandchild;
· Patient’s sibling;
· Patient’s presumptive heir;
· Known devisee at the time of witnessing (someone listed in the Patient’s will);
· Nominated Patient Advocate;
· Patient’s physician;
· Employee of the Patient’s life or health insurance provider;
· Employee of a health facility treating the Patient; or
· Employee of a nursing home where the Patient resides or a community mental health services program providing services to the hospital where the Patient is admitted.
Additionally, the Patient Advocate must sign an Acceptance, which also must be part of the Patient’s medical record.
Contents of a Durable Power of Attorney for Healthcare
The Durable Power of Attorney for Healthcare provides instructions for the Patient Advocate to follow when the Patient is unable to make their own medical and mental health decisions. The Patient nominates the Patient Advocate in the Durable Power of Attorney for Healthcare. The Patient Advocate must be at least 18-years-old and have capacity. Someone under a guardianship, conservatorship, or Power of Attorney cannot be a Patient Advocate. The Patient Advocate must be trustworthy as they are able to access your medical records and make medical decisions on the Patient’s behalf. This includes mental health decisions as well. The Patient should choose only one person to act as Patient Advocate. When more than one person is designated as the Patient Advocate, every person must agree to the treatment. This can be difficult during an already emotional time and could cause unnecessary stress and hardship for a family. The Patient should also designate at least one alternate Patient Advocate in case the initial Patient Advocate is unable or unwilling to act.
Also, the Patient can include a Do-Not-Resuscitate declaration. This must be expressed in a clear and convincing manner. The Patient Advocate or doctor can disregard the Patient’s wishes if withholding treatment is not in the Patient’s best interests, the Patient expresses a desire to have specific life-extending care, or the Patient is pregnant.
The Patient may also specify anatomical gifts in the Durable Power of Attorney for Healthcare, which includes organ donation, research, or science. The Patient Advocate is authorized to carry out the Patient’s anatomical gift wishes.
Patient Advocate Authority
A Patient Advocate’s authority begins when the Patient is unable to make their own medical or mental health decisions, meaning when the Patient is incapacitated. The Patient Advocate steps into the shoes of the Patient and speaks on the Patient’s behalf. Depending on the language of the Durable Power of Attorney for Healthcare, the Patient Advocate’s authority may begin immediately upon signing or after one or two doctors diagnose the Patient’s incapacity.
The Patient Advocate is prohibited from making any decision the Patient could not have made on their own. For example, the Patient Advocate cannot engage in illegal conduct, such as condoning, allowing, permitting, authorizing, or approving suicide or homicide.
A Patient Advocate’s authority ends in several ways. If the Patient is able to make their own medical and mental health decisions, the Patient Advocate’s authority stops. The Patient can revoke the Patient Advocate’s authority at any time, either in writing or verbally in front of a witness who documents the revocation in the Patient’s medical record. The Patient Advocate could resign or become incapacitated. The Probate Court has the authority to remove a Patient Advocate. Finally, the Durable Power of Attorney for Healthcare only lasts as long as the Patient is alive. Once the Patient dies, the will and/or trust take over as the instruments for the Patient’s wishes.
Final Thoughts
The Durable Power of Attorney for Healthcare is an important document to make your family and doctors aware of your wishes if you are unable to make your medical and mental health decisions. Having a Durable Power of Attorney for Healthcare is important because it makes a guardianship unnecessary, therefore maintaining your rights. The Patient Advocate is only permitted to act when you are not able to do so. If the Probate Court appoints a guardian, you no longer have the right to make your own medical and mental health decisions. The guardian will make those decisions for you.
This is a difficult, but important, conversation to have with your loved ones. Contact the Law Office of Shannon DeWall to discuss and draft this powerful document to give you the peace of mind to know your medical and mental health decisions will be protected.