What is an "advance directive"?
An advance directive is a written document in which a competent individual gives instructions about his/her health care, that will be implemented at some future time should that person lack the ability to make decisions for himself or herself.
Must I have an advance directive?
No. The decision to have an advance directive is purely voluntary. No family member, hospital, or insurance company can force you to have one or dictate what the document should say if you decide to write one.
Are there different types of advance directives?
Yes. There are two types, a durable power of attorney for health care and a living will. Living wills are not recognized in Michigan law. However, in case of a dispute as to your health care desires, your written or oral statements regarding your wishes pertaining to health care or the withdrawal or refusal of treatment, mat be used as evidence in court, if you are unable to participate in health care decisions. You may wish to consult an attorney for further information regarding durable powers of attorney or living wills.
What is a "durable power of attorney for health care"?
A durable power of attorney for health care, also known as a health care proxy, is a document in which you give another person the power to make medical treatment and related personal care and custody decisions for you.
Is a durable power attorney for health care legally binding in Michigan?
Yes, based on a state law passed in 1990.
Who is eligible to create a durable power of attorney for health care?
Anyone who is 18 years of age or older and of sound and mind is eligible.
What is the title of the person to whom I give decision-making power?
That person is known as a "patient advocate."
Who may I appoint as a patient advocate?
Anyone who is 18 years of age or older may be appointed. You should choose someone you trust, who can handle the responsibility, and who is willing to serve.
Does a patient advocate need to accept the responsibility before acting?
Yes, he or she must sign an acceptance. This does not have to be done at the time you sign the document. Nevertheless, you should speak to the person your propose to name as patient advocate to make sure he or she is willing to serve.
When can the patient advocate act in my behalf?
The patient advocate can make decisions for you only when you are unable to participate in medical treatment decisions.
Why might I be unable to participate in medical treatment decisions?
You may become temporarily or permanently unconscious from disease, accident or surgery. You may be awake but mentally unable to make decisions about your care due to disease or injury.
Who determines that I am no longer able to participate in these decisions?
Your attending physician and one other physician or licensed psychologist will make that determination. If your religious beliefs prohibit an examination to make this determination, and this is stated in the designation document, you would indicate in the document how it would be determined when the patient advocate can act.
What powers can I give a patient advocate?
You can give a patient advocate the power to make those personal care decisions you normally make for yourself. For example, you can give your patient advocate power to consent to or refuse medical treatment for you, to contract for home health care or adult day care, arrange care in a nursing home, or move you to a home for the aged. Note that according to state law, of you were to become incompetent while pregnant, you patient advocate could not authorize a medical treatment decision that would result in your death while pregnant.
Can I give my patient advocate the authority to make decisions to withhold or withdraw life-sustaining treatment, including food and water administered through tubes?
Yes, but you must express in a clear and convincing manner that the patient advocate is authorized to make such decisions, and you must acknowledge that these decisions could or would allow your death. If you have specific desires as to when you want to forego life-sustaining treatment, you should make them clear to your advocate. You may also include them as written instructions in your durable power document.
Do I have the right to express in the document my wishes concerning medical treatment and personal care?
Yes. You might, for example, express your wishes concerning the type of care you want during terminal illness. You might also express a desire not to be placed in a nursing home and a desire to die at home. You patient advocate has a duty to try to follow your wishes.
Is it important to express my wishes in the durable power of attorney for health care designating document?
Yes. Your wishes might not be followed if others are unaware of them. It can also be a great burden for your patient advocate to make a decision for you without your specific guidance.
Can I appoint a second person to serve as patient advocate in case the first-named person is unable to serve?
Must a durable power of attorney for health care designated document be witnessed?
Yes. Two witnesses must sign. The witnesses must not include your spouse, parent, child, grandchild, sibling, presumptive heir, known devisee at the time of the witnessing, physician, or patient advocate; an employee of your life or health insurance provider; an employee of a health facility that is treating you; or an employee of a home for the aged as defined in section 20106 of the Public Health Code, Act No. 368 of the public Acts of 1978, being Section 333.20106 of the Michigan Complied Laws, where you reside.
In general, what should I do before completing an advance directive?
Take you time. Consider whom you might choose to be your proxy, or to act in your place. Think about your treatment wishes. Discuss the issue with family members and your doctor. Talk with your minister, rabbi, priest, or other spiritual leader if you feel it would be helpful.
Are there issues I should give particular attention to?
Yes. Many people have strong feelings about the administration of food and water, either by tube down their throat, a tube placed surgically into their stomach, or intravenously. You may wish to consider and indicate in what circumstances, if any, you wish such procedures withheld or withdrawn. Also, bear in mind that people’s opinions regarding their own health care may change over time. Your wishes regarding their own health care may change over time. Your wishes regarding medical treatment when you are relatively young may be quite different from your wishes when you reach advanced age, so you may wish to review your decisions periodically with your patient advocate.
Is there a standard form for an advance directive?
Absolutely not. While this pamphlet contains a sample form which you may choose to use to designate a patient advocate, you may use a form designed by an organization, you may hire a lawyer to draft the necessary documentation, or you may write out the document yourself. If you write the documentation yourself, make sure that it is legible. Under state law, you must sign the document, date it, and have it witnessed as described above. A person accepting the responsibility to act as a patient advocate must sign an acceptance to the designation document, which contains provisions required by statute.
What if there is a dispute as to how many durable power of attorney for health care should be carried out?
If there is a dispute as to whether your patient advocate is acting consistent with your best interest, the probate court may be petitioned to resolve the dispute. The court can remove a patient advocate who acts improperly in your behalf.
Guide for Using the Durable Power of Attorney Form
The pages following this guide contain a blank copy of a Durable Power of Attorney for Health Care form, which you may use to designate you patient advocate. This is a suggested form only. Michigan law does not require a specific form to be used. If you wish to provide more details in your durable power document, you may attach additional pages to it containing those details. This guide is intended to help clarify the purposes of the various provisions in this form.
THIS FORM PROVIDES FOR A DURABLE POWER OF ATTORNEY FOR PURPOSES OF CARE, CUSTODY, AND MEDICAL TREATMENT ONLY. IF YOU DESIRE A MORE COMPREHENSIVE DURABLE POWER OF ATTORNEY THAT GRANTS AUTHORITY FOR PURPOSES OF HANDLING FINANCIAL OF BUSINESS AFFAIRS, PLEASE CONSULT AN ATTORNEY.
SECTION I: APPOINTMENT OF ADVOCATE
The first several blanks in the form are for putting your name and the name(s) of persons you are appointing as your advocate or successor advocate. You may appoint ANY person who is at least 18 years of age to be your advocate. It is important that you consult with the person you are naming and secure his or her consent before naming that person.
The law requires that before you can be considered unable to participate in medical treatment decisions, that determination must be made by your attending physician and at least one other physician or a licensed psychologist. Because some individuals’ religious beliefs may not allow for an examination by a physician, the document can state the religious objection and indicate how it shall be determined when the patient advocate may exercise his or her powers.
SECTION II: GRANTS OF AUTHORITY AND RESPONSIBILITY
This is a crucial section of the durable power document. You may check any, all or none of the grants of power. If you do not check any of the options, you will need to attach your own written grants of power to indicate what powers your advocate will have.
This section contains the very important provision regarding whether decisions to withhold or withdraw treatment, which would allow you to die will be made for you. Due to the serious nature of this granting of power, Michigan law requires that you express in a clear and convincing manner that your patient advocate is authorized to make such a decision, and that you acknowledge that such a decision could or would allow your death. If you do grant this authority, you should make clear to your advocate your desires for treatment. Section III of the form provides a space for setting forth your desires.
SECTION III: DESIRES AND PREFERENCES FOR TREATMENT
This is the section of the document where you may state your desires regarding the care, custody and medical treatment you should or should not receive, and under what circumstances treatment should be administered, continued, refused, or withdrawn. Here you may direct your treatment regarding mechanical life-supports (like respirators or kidney dialysis), ordinary or routine treatments (simple surgeries, use of antibiotics, insulin, heart or blood pressure medications, etc.), and basic care (including the provision of food and water). As with the other sections of your durable power document, you may attach additional pages if the space provided is inadequate.
MICHIGAN LAW DOES NOT REQUIRE THAT YOU FILL OUT THIS SECTION OR PROVIDE AN ATTACHMENT ACCOMPLISHING THE SAME PURPOSE. The law stipulates that your advocate must act in your best interests and that health care providers should only comply with your advocate’s direction if he or she is reasonably believed to be acting within the authority granted in your designation of the patient advocate. Thus, directions your advocate gives, which are consistent with your statement in this section, are not likely to be questioned.
SECTION IV: SIGNATURE AND WITNESSING
Michigan law requires that before a patient advocate can execute any of his or her duties and responsibilities, he or she must sign an acceptance to the designation. The first provision of Section IV simply insures that you are aware that this designation must be signed before the power of attorney becomes effective. It also will indicate whether the designation and acceptance process were completed at one time.
Next, your signature is required. Finally, the requirements pertaining to the witnessing of the designation are contained within this section. Please note the limitations on who may serve as a witness.
SECTION V: ACCEPTANCE OF THE DESIGNATION
As noted above, the advocate whom you must sign an acceptance of your appointment before he or she can act of your behalf. Michigan law requires that certain information regarding the rights, authorities, and limits related to durable power designations be contained within this acceptance. The acceptance provided in Section V of the form meets these requirements.
The name of the person you are appointing should appear in the first blank, and your name (principal) should appear in the second blank. The third should contain the date on which you signed your durable power document. The acceptance may be signed on the same day, or at a later time Finally, your advocate’s signature and the date of his or her signing are needed at the end of the acceptance.
Durable Power of Attorney For Health Care
(Please print or type required information)
Appointment of Patient Advocate
(Your Full Name)
(Your complete legal address)
hereby appoint ________________________________________________________________
(Person you are appointing)
residing at ____________________________________________________________________
(person’s complete legal address)
as my patient advocate with the following power to be exercised in my name and for my benefit,
for the purpose of making decisions regarding my care, custody and medical treatment. This
durable power of attorney shall not be affected by my disability or incapacity, and is governed by
Section 700.496 of the Michigan Compiled Laws.
In the event that the above-named patient advocate is unable or expressed an intent not to serve as advocated, I then appoint
___________________________________ residing at _________________________________
(Name of successor) (Legal address)
to serve as my patient advocate.
This durable power of attorney shall be exercisable (check one):
___ When my attending physician and at least one other physician or licensed psychologist determine upon examination that I am unable to participate in medical decisions.
___ If my religious beliefs prohibit my examination by a physician or licensed psychologist, then when the following events occur:
(used attached sheet if necessary)
Before the powers granted in this durable power of attorney are exercisable, a copy of it shall be placed in my medical record with my attending physician and if applicable, with the facility where I am located. I retain the right to revoke this durable power of attorney at any time, and by any means whereby I may communicate an intent to revoke it.
Grants of Authority and Responsibility
With respect to my physical and medical treatment, I am granting to my advocate the authorities and responsibilities indicated below. Check those you are authorizing and add any additional authorities and responsibilities below responsibilities below. Use more sheets if necessary.
___ Access to and control over my medical records and information.
___ Power to employ and discharge physicians, nurses, therapists, and any other care providers, and to pay them reasonable compensation.
___ Power to give informed consent to receiving any medical treatment or diagnostic, surgical, or therapeutic procedure.
___ Power to refuse, or to authorize the discontinuance of, any medical treatment or diagnostic, surgical or therapeutic procedure.
___ Power to refuse, or to authorize the discontinuance of, any medical treatment or diagnostic, surgical or therapeutic procedure. IN GRANTING THIS POWER, I AUTHORIZE MY ADVOCATE TO MAKE A DECISION TO WITHHOLD OR WITHDRAW TREATMENT THAT WOULD ALLOW MY DEATH. I FURTHER ACKNOWLEDGE THAT SUCH A DECISION TO WITHHOLD OR WITHDRAW TREATMENT COULD OR WOULD ALLOW MY DEATH. I INSTRUCT MY ADVOCATE IN SECTION III, ON THE NEXT PAGE, AS TO MY DESIRES REGARDING THE WITHHOLDING OR WITHDRAWAL OF TREATMENT THAT COULD OR WOULD BRING ABOUT MY DEATH. (If you have checked this item, it is strongly recommended that you use the optional Section III on the next page to specify your desires.)
___ Power to execute waivers, medical authorizations, and such other approval as may be required to permit or authorize care which I may need, or to discontinue care that I am receiving.