Although the question about living wills in Michigan seems simple, the answer is complicated. Michigan is one of only a few states that does not have a law on the validity of living wills. Although there is no state statute giving legal force to the documents, there is a court decision that seems to make living wills binding in the state. In 1995, the Michigan Supreme Court wrote that “a written directive would provide the most concrete evidence of the patient’s decisions,” and urged people to create directives.
Federal law may provide more validity to living wills. For example, if a hospital or nursing home receives federal funds, they have an obligation to inform patients of their right to have advance directives.
Without formal requirements in state law, it is more challenging to determine which parts of a living will are necessary to create a binding document. The Michigan estate planning attorneys at BRMM can help you decide how a living will fits in your future plans.
What is a Living Will?
A living will is completely different than the will document — or Last Will and Testament — that distributes a person’s property at death.
If a person becomes temporarily or permanently unconscious from disease, accident, or surgery, decisions need to be made by others about treatment and care. A living will informs doctors and family members what type of medical care the patient wants to receive. For example, one patient may direct that he receives “any and all care necessary to prolong life,” while a different patient may direct that, if she has a brain injury or damage, she just wants care “to relieve pain, maintain comfort, and nothing additional.”
The document will become effective when a doctor or hospital determines that you are unable to make decisions or communicate about your care in a meaningful way. A living will can be a stand-alone document or it can be included in an advance directive plan.
Again, there is no definitive law in Michigan that recognizes living wills, unlike in almost every other state. But certainly documenting your wishes in the event of a potentially life-ending condition can provide important directions to those who would make that decision for you if you were unable to do so.
What is an Advance Directive?
Because of the uncertainty in Michigan of a living will, it is critically important for all adults to create an advance directive. This is a document or set of documents that lays out a plan for medical care in case a person loses the ability to make independent decisions. In legal terms, the loss of decision-making ability is called lack of capacity or incapacity.
Besides a living will, an advance directive can include a durable power of attorney for health care. Unlike a living will, a designation of patient advocate is recognized by Michigan law and legally binding. If you would like to appoint a person to make decisions about your physical and mental health care in the event you lose capacity, that is accomplished through a durable power of attorney for health care. The document will designate your patient advocate, also called a health care proxy.
Michigan also has a statewide registry service, called Peace of Mind, that you may use to securely store your advance directive and allows healthcare providers to access it, if needed. The registry is completely voluntary and you are provided a registration wallet card to present to healthcare providers.
Some advance directives also include a do-not-resuscitate declaration, called DNR for short. A DNR is used to let caregivers know that, if you stop breathing or your heart stops beating, you do not want care to prolong your life or resuscitate you. Lastly, an advanced directive may include a declaration of anatomical gift for organ donation.
An advance directive that includes a durable power of attorney for health care and a living will can help ensure that, if you lose capacity, there is someone to make decisions and they know which decisions you would prefer. An attorney can ensure that all the provisions of the documents are consistent.
Do I Need a Living Will?
Because living wills are not recognized by statute in Michigan, the choice to use a living will or another advance health care planning document is a very personal decision that should be made with all the relevant information available. It may be a burden on your family or your patient advocate to make decisions for you without your specific guidance. If others are not aware of your wishes, they cannot follow them.
Estate planning attorneys can help you understand all the factors that may be relevant to your decision. Contact one of our trusted and experienced Michigan BRMM elder law and estate planning attorneys today for a free, confidential consultation at (248) 641-7070 or through our online form.