by Christine Steinmetz, Hotline Attorney
This post is part one of a series of blog posts examining Durable Power of Attorney for Healthcare.
The Legal Hotline receives several calls each week regarding the Durable Power of Attorney for Healthcare. Many of us have heard of a Durable Power of Attorney for Healthcare, and some have been provided with a copy of this document from our healthcare provider. However, many clients call with questions regarding this document.
First, a Durable Power of Attorney for Healthcare is a legal form that allows a person to appoint an agent, called a “Patient Advocate”, to make healthcare decisions for them when they are unable participate in medical treatment decisions.
Modern medicine allows people to prolong their lives through artificial means, such as respirators and dialysis machines. However, if you want to limit these means, you will want to draft a Durable Power of Attorney for Healthcare to allow your Patient Advocate to act on your behalf.
There are several questions that clients ask regarding Durable Power of Attorney for Healthcare. Clients often call and want to know who can draft an Durable Power of Attorney for Healthcare. Under Michigan law, an individual who is age 18 or over and of sound mind can draft the document. Therefore, you will want to draft your Durable Power of Attorney for Healthcare and designate your Patient Advocate BEFORE a disability occurs. Once you are incapacitated, it is too late for you to sign a valid Durable Power of Attorney for Healthcare.
Another concern clients have is who they should choose as their Patient Advocate. This is an important decision as this person will be making healthcare decisions for you. You will want to choose someone you trust and who willing to take on this task. Before the Durable Power of Attorney for Healthcare document can become effective, the Patient Advocate needs to sign an acceptance form. I suggest that you speak with your Patient Advocate before designating them, there are instances where the person you choose as your Patient Advocate does not wish to take on this task.
Another question client’s frequently ask is whether they should should an alternate or successor Patient Advocate. It is always recommended that you choose a successor Patient Advocate in the event your Patient Advocate is unable or unwilling to act. Again, take the same care when selecting a successor Patient Advocate and discuss this with them first.
Under MCL 700.5508, the Patient Advocate’s authority to exercise power over care, custody, and medical decisions is triggered when the patient is unable to participate in medical decisions. Clients often ask who determines when a patient is unable to participate in medical decisions. The statute states that two healthcare providers, one who is the patient’s attending physician and another physician or licensed psychologist must examine the patient and determine whether the patient is able to participate in medical decisions. The healthcare providers must make the determination in writing and make the determination part of the patient’s medical record, which is to be reviewed at least annually. If a patient objects to being examined for religious reasons, the the patient must indicate in the designation an alternative method of determination. Once it is determined that the patient is unable to make healthcare decisions, then the Patient Advocate may act on the patient’s behalf.
A Durable Power of Attorney for Healthcare is an important document. This article just touched on some of the questions frequently asked regarding this document Stay tuned for Part II in our series on Durable Power of Attorney For Healthcare.
If you have questions regarding Durable Power of Attorney for Healthcare, please call the Legal Hotline for Michigan Seniors at 1-800-347-5297.
Christine Steinmetz is a Part-time Attorney at Elder Law of Michigan, and has been a member of the Elder Law team since 2011. As an attorney at Elder Law, Christine advises clients on issues including Medicare/Medicaid, wills and trusts, estate planning, landlord/tenant, and consumer law.