The Michigan Legislature recently enacted a long-awaited bill to specifically authorize advance health care directives in Michigan. The Act clarifies some areas, confuses others, and casts doubt upon the validity of pre-existing durable health care powers of attorney. Prior to the Act, Michigan was, like all States, required to recognize the right of a patient to be left alone, and to refuse to consent to have certain medical treatments, so long as the right was properly invoked. Broad scope was left to the patient, and the draftsman, as to just how that could be accomplished, but no clear course was specified. Now, after the act, there is less freedom of documentation, considerable detailed guidance (23 subsections), and certain new issues to be resolved.

In addition, the Act creates specific issues regarding the death management planning for women who might become pregnant, and in the management of the care of pregnant women. Further, the old issue of the duty of health care providers to honor patients' refusals to allow treatment, as contrasted with concerns that the death of patients not be actively caused, is underscored by the new legislation.

In short, the Act provides some needed guidance for those preparing advance health care directives. However, all Living Wills and Durable Health Care Powers of Attorney of Michigan residents, and persons spending time in Michigan, should be reviewed with counsel, in view of this new law. Moreover, there may be new factual and legal issues in the establishment and use of these newly-statutorily-sanctioned advance directives.

I have prepared a summary outline analysis of the new law, which is enclosed on the following pages. Neither this letter, nor the outline, however, is intended as legal advice, which can properly be given only in consultation with individual clients.

I think you may find these matters of interest.

Yours very truly,

Vance A. Fisher .022191D

SUMMARY OUTLINE OF THE MICHIGAN PATIENT ADVOCATE ACT

FISHER LAW OFFICE

February 21, 1991

I. Function. Regulates health care powers of attorney and living wills. Creates the term "patient advocate". May invalidate certain prior health care directives.

I. Persons eligible to designate a Patient Advocate

A. 18 years old

A. Of sound mind at the time the designation is made

A. Query, whether a corporation (i.e., a bank trust department) may act?

I. Formal requirements

A. In writing

A. Signed

A. Witnessed by two witnesses, who cannot be

1. a spouse, parent, child, grandchild, sibling of the patient

1. a presumptive heir (i.e., a near relative) of the patient

1. a known beneficiary under the will of the patient

1. a physician of the patient

1. a patient advocate for the patient

1. an employee of a life or health insurance provider for the patient

1. an employee of a health facility treating the patient

1. an employee of a home for the aged where the patient resides

1. a person to whom the patient does not appear to be

of sound mind, free from duress, fraud, and undue influence

A. Dated

A. Executed voluntarily

A. Made a part of the patient's medical record with the physician and institution

A. Include a statement that it is effective only when the patient is "unable to participate in medical treatment decisions." This appears to be a new standard of mental capacity, different from contractual capacity, testamentary capacity, or the capacity to live alone free from guardianship. It is a condition not required under prior law.

I. The designation

A. May include a "statement of the patient's desires on care, custody, and medical treatment."

A. May authorize the patient advocate to exercise one or more powers concerning care, custody, and medical treatment, that the patient could have exercised himself or herself.

A. May designate a successor individual as a patient advocate.

1. Again, implicitly it cannot be a corporation.

1. Successor can be empowered to act only if original patient advocate does not accept, is incapacitated, resigns, or is removed.

a. Presumably death is an "incapacity."

a. However, simply failing or refusing to act, or being unavailable, is not covered.

a. There is no provision explicitly empowering a second successor, in the event the named alternate is not available.

A. Must be given to the advocate before he or she acts

A. Must be accepted by the advocate before he or she acts

1. The acceptance (not the designation, note) must contain specific language quoted in the statute. No deviations are permitted. Basically, it is a recitation of the duties and authorities, and limitations of the agent as expressed in the statute.

a. That the designation not effective until the patient is unable to participate in medical treatment decisions. Query, what if the patient becomes "able" later, and what is the test?

a. That the advocate cannot exercise powers that the patient if competent could not have exercised. Query, what are those powers? Suicide?

a. That the designation cannot be used to cause the death of a pregnant patient.

a. That the patient advocate may make a decision to withhold or withdraw treatment which would allow a patient to die only if the patient has expressed in a clear and convincing manner (whatever that is) that the patient advocate is so authorized to make such decisions which may have such effect.

a. That the patient advocate cannot be paid for his or her services, but may be reimbursed for his or her expenses.

a. That the patient advocate is required to act in accordance with the standards of care applicable to fiduciaries (the known desires of the patient being presumed to be in the patient's best interest).

a. That the patient may revoke his or her designation at any time and in any manner sufficient to communicate an intent to revoke.

a. That a patient committed to a health facility or agency has additional statutory rights.

I. The authority conferred can be exercised by the patient advocate only when the patient is "unable to participate in medical treatment decisions." As stated earlier, this is a novel standard.

A. Such ability is to be determined by the patient's attending physician and another physician or licensed psychologist

1. In writing

1. Made a part of the patient's medical record

1. And reviewed at least annually. Query, by whom?

B. Provision is made for those whose religious beliefs prohibit examination to determine capacity.

C. The Probate Court is given jurisdiction of disputes as to such competency.

1. A guardian ad litem is to be appointed.
2. Hearings are to be held within 7 days of filing.
3. Determinations are to be made within 7 days of hearing.

I. The patient advocate has

A. The duty to act in accordance with fiduciary standards

A. The duty to take reasonable steps to follow the patient's desires as expressed while competent

A. The duty not to exercise powers which the patient could not have exercised if competent. Query, what might those powers be? Is the statute dealing with suicide here? Did it do so effectively?

A. The duty not to use the designation to make a decision which would cause the death of a pregnant patient. Indeed, the statute provides the advocate has no power to make such a decision. This could create a liability issue for patient advocates whose patient is, upon autopsy, found for the first time to be pregnant. If abortion is performed first, can the patient be permitted to expire? Who can consent to the abortion? The patient advocate? Others? The statute is silent.

A. The duty not to use the designation to permit a patient to die unless the patient "has expressed in a clear and convincing manner" that the advocate has such power, and the patient acknowledges that such a decision could or would allow death. Is signing a directive acknowledging this possibility an "expression" in a "clear and convincing manner?" Must the patient take other steps? Are those steps alternatives? What are they?

A. The power to delegate his or her powers to others, to the extent authorized by the patient (presumably in the designation). However, the possibility of authorization by other means exists, and evidentiary problems are posed.

A. No power to act while the patient regains the ability to participate, for so long as such ability remains.

I. A designation is revoked by

A. The patient's death. This seems unnecessary and redundant.

A. A probate court order dissolving it

A. Resignation of the advocate

A. Removal of the advocate by the Probate Court

A. Revocation by the patient, even if unable to participate in medical decisions. One wonders what mental state the patient might have which would permit the former but not enable the latter.

This is an additional novel capacity criterion.

1. The probate court is again given jurisdiction over disputes over such capacity.

1. It can be orally revoked.

a. The "witness to the revocation" is required to record the circumstances, sign it, and notify the advocate.

a. The physician or health facility having notice of a revocation is required to annotate the patient's records accordingly.

A. Supersession by a subsequent designation that "revokes the prior designation either expressly or by inconsistency"

A. The occurrence of a condition of revocation set forth in the designation

A. As to an advocate who is a spouse of the patient, the pendency of an action for separate maintenance, annulment or divorce suspends it, and a judgment revokes it

I. Actions taken in good faith by an advocate without knowledge of revocation are protected.

I. A "current desire" of the patient to have certain treatment, if known to the patient advocate, is binding on the advocate, even if contrary to a previously expressed desire. The kind of expression of desire by the patient which could be the source of such knowledge is not specified in the statute. Note also that a "current desire" not to have treatment does not countermand a previously expressed desire to have it, under the statute. Again, such "desire" must be followed even if the patient is not able to participate in medical care decisions. One wonders if such circumstances are possible.

I. Health care providers providing or withholding treatment are protected, generally, if they reasonably believe the patient advocate is acting within the authority granted. This is an "objective" standard, which is subject to review by courts, rather than a standard of "good faith belief."

I. A health care provider is bound to follow the directives of a patient advocate if he or she "complies with this section" but not if he or she does not. The patient's best interests control, according to the Act.

A. The probate court is again given jurisdiction over such disputes.

I. Health care providers are, appropriately, prohibited from requiring a designation to be furnished as a condition of providing services.

I. Insurers, also appropriately, are prohibited from making coverage, warranty breach, or rating decisions based on the existence or nonexistence of a designation. Making a designation cannot be deemed suicide or intentional death under such policies, under the Act.

I. No designation shall be construed to condone, allow, permit, authorize, or approve suicide or homicide, the Act concludes.

I. The rights of patients to religious-belief-based decisions are not stated to be affected.

I. Prior designations are made subject to much of the act, including the acceptance provisions. Specific statutory formal requirements do not apply if the prior designations are

A. In writing

A. Signed

A. Witnessed or "notarized." This non-technical term could refer to either acknowledgement, making an affidavit, or both. Some existing health care powers and directives are not acknowledged or sworn to, or witnessed, as nothing under prior law required it. They may be invalidated by this enactment.

A. Executed voluntarily

A. Made a part of the patient's record before implementation.

Vance A. Fisher Copyright 1991

FISHER LAW OFFICE Vance A. Fisher

Law & Title Building All rights reserved

811 Ship St., P. O. Box 83

St. Joseph, Michigan 49085-0083

(616) 983-5511