While not an appealing prospect to think about, planning for an individual’s medical care in the event they are unable to make their own medical decisions is vitally important to ensure not only quality end-of-life care but also to protect any assets within their estate. Most people only think about this during the long term care planning process when an individual is nearing the end of their lives, or if they are slowly progressing on a terminal illness. However, it is an important consideration for all individuals regardless of health or age, as unexpected life events, accidents, and sudden illness can befall us at any time.
For most people, the complicated and confusing process of creating medical directives and appointing a medical advocate is too much to handle on their own. Our expert attorneys at The Law Office of Sean J. Nichols work with individuals and their families every day to set up medical directives and medical power of attorney for a person. If you or a loved one needs assistance with this process, please contact us today to find out how we can formulate a medical directive that works best for your situation.
Reasons for Medical Directives
Medical directives, also known as advance directives, are a set of instructions and plans put in place to handle unfortunate debilitating medical situations that may occur. People set up these directives for several reasons, mainly to ensure they receive their desired level of care under certain circumstances, and also to designate a particular individual to make medical decisions on their behalf. Medical directives cover situations such as whether or not to keep the individual on life support under certain circumstances such as a coma, brain injury or other head injuries that prevent them from being able to make their own healthcare decisions.
In Michigan, individuals who are appointed to make medical decisions for another person are called patient advocates. The official legal basis for a patient advocate comes from MCL 700.5506 (2), which clearly defines the role:
“an individual who is named in a patient advocate designation to exercise powers concerning care, custody, and medical or mental health treatment decisions is known as a patient advocate…”
Also known as medical advocates, these individuals are granted the medical power of attorney, which gives them the ability to make medical decisions on a person’s behalf if they become incapacitated or are otherwise unable to do so themselves. Patient advocates range from volunteers and family members all the way to professional patient advocates who have made careers out of assisting families with protecting the best medical interests of their loved ones. An attorney specializing in elder law can assist in the selection of a patient advocate and ensure that the medical directives are formulated correctly and in the individuals best interest.
What is Involved
Setting up medical directives and assigning a patient advocate is a complex process that needs to be done correctly in order to hold up in a court of law. In the past, individuals usually died in their own homes and these directives were not necessary. Today, technology has afforded us not only longer lifespans, but options for end of life treatment such as hospitals or nursing homes. Because there are now multiple situations in which a medical directive could be needed, there are different types of medical directives available. As discussed previously, these options include Durable Power of Attorney for Health Care (DPOA-HC), and certain specific medical directives such as a do-not-resuscitate declaration (DNR).
In Michigan, the first step in this process is the complete a patient advocate designation form, officially known as DCH-3916. A copy of this form is available here. This form clearly lays out who is being designated as the patient advocate, what their responsibilities are and also gives the individual options to designate other wishes they may have in addition to this. These wishes often are specific medical directives which can include do-not-resuscitate declarations and other declarations regarding specific medical scenarios. There are also three sections regarding specific wishes surrounding life-sustaining treatment, organ donation and mental health treatment. All of these wishes sections are optional and do not need to be completed if the individual doesn’t want to or doesn’t feel comfortable doing so.
Once the individual has completed and signed the form, it must be signed by two separate witnesses. Michigan law requires that these witnesses do not have any conflict of interest that would compromise their integrity in the signing of the patient advocate designation. These stipulations are very specific requiring witnesses to be:
At least 18 years of age
Not named in the protected individuals will
Not the protected individual’s spouse, parent, child, grandchild, brother, sister or presumptive heir
Not the protected individual’s physician or patient advocate
Not an employee of the protected individuals life or health insurance company
Not an employee of a retirement home, assisted living facility or nursing home where the protected individual resides
Not an employee of a community mental health program providing services to the protected individual
Not an employee of a healthcare facility where the protected individual is currently a patient
Finally, after qualified witnesses sign, the patient advocate themselves are required to sign the document. In this final section, the rules and guidelines surrounding the purpose, responsibilities and obligations of the patient advocate are clearly laid out. This section is critical, because by their signature the patient advocate is legally bound to perform their duties to the best of their abilities in accordance with these guidelines. Additionally, the patient advocate must designate a successor in the event that they themselves are incapacitated or are unable to perform their duties.
It’s important to work with an experienced estate planning lawyer on setting up medical directives and assigning medical power of attorney. This will ensure not only that the directives will hold up in a court of law, but that they fit well within an overall estate plan that fits the needs of all parties involved.