Challenging a Patient Advocate Designation / Healthcare Durable Power of Attorney

When an individual signs a legally valid patient advocate designation, the document gives another person the authority to make healthcare decisions for the individual who signed should he or she become unable to make those decisions. The powers of the patient advocate become effective only in the event the individual executing the designation becomes incapacitated.

While most patient advocates carefully perform their responsibilities, there are times when an advocate does not properly perform the duties assigned in the designation. If your loved one or family member has designated a patient advocate, and the advocate is not fulfilling the legal responsibilities under the designation, is there anything you can do? Absolutely. Michigan law provides the means to enforce a patient advocate designation — or even remove a patient advocate in appropriate circumstances — by challenging a patient advocate designation.

How Does a Patient Advocate Designation Work?

Michigan law recognizes an individual’s right to create a durable power of attorney, which is a legal document that gives another person the ability to act on the individual’s behalf in the event the individual becomes incapacitated or disabled. A durable power of attorney can be either a healthcare durable power of attorney or a financial durable power of attorney. A healthcare durable power of attorney can also be combined with a patient advocate designation or advance directive.

A patient advocate designation gives another person the ability to make decisions relating to care, custody, and treatment of the individual making the designation, in the event that individual becomes incapable of making those decisions for himself or herself. The document itself spells out exactly what decision-making powers the advocate will have, based on the wishes of the individual executing the designation. The designation can include the authority to:

  • Give informed consent to medical treatment;
  • Refuse consent to medical treatment;
  • Arrange for care or treatment in a nursing home or other facility;
  • Decide on mental health treatment;
  • Arrange for organ donation after death;
  • Withdraw or withhold life support (except in the event of pregnancy).

Some patient advocate designations include specific provisions that detail the individual’s preferences and wishes for treatment in the event the individual becomes incapacitated.

Legal Requirements for a Patient Advocate Designation

To be valid, a patient advocate designation must satisfy specific legal requirements under Michigan law, including that the designation must be in writing, dated, and signed by two witnesses who are qualified under the law.

There is an additional legal requirement that is extremely important: The statute requires that the person signing the document be “of sound mind and under no duress, fraud or undue influence.” The question of mental capacity or legal competence can be difficult, especially with elders who have dementia or Alzheimer’s. If the person understood the nature of the document and the significance of signing it, the requirement of legal competence likely is satisfied.

However, if evidence exists that the person was not competent or was unduly influenced or defrauded, or that the other legal requirements for a designation have not been satisfied, the patient advocate designation can be challenged by a petition in probate court on the basis that it is not legally valid.

Potential Issues in a Patient Advocate Situation

When the person who executed a designation becomes incapacitated, the advocate is vested with the authority granted in the document. By law, the advocate is required to act in the best interests of the patient and consistent with the wishes and preferences expressed in the designation.

Occasionally, however, problems arise because of decisions made by a patient advocate. In particular, discord or disharmony in a family can create a situation in which disputes about care of the patient occur. The types of issues that can arise include:

  • Decisions made based on what is most convenient or beneficial to the advocate rather than on what is in the best interests of the patient;
  • Denial of visitation by family members for reasons that are not legitimate;
  • Financial exploitation or emotional or physical abuse of the patient;
  • Actions taken that are not consistent with the wishes of the patient expressed in the designation;or
  • Treatment decisions that result in care that is inadequate or inappropriate.

When there are serious questions about whether a patient advocate is acting in the best interests of the patient in any regard, the law provides that a petition can be filed in probate court asking the court to determine whether the patient advocate should continue in that position or be removed.

Another issue that sometimes arises with a patient advocate designation is whether the individual who signed the designation is, in fact, unable to make his or her own decisions. As long as the individual can make his or her own decisions, the patient advocate has no authority to act. Only when the individual becomes incapacitated and unable to make decisions will the advocate have authority under the document.

Especially in complicated family situations, disagreements can occur over whether an elder loved one is still capable of making decisions and whether the patient advocate has authority to act. The Michigan statute provides that in the event of such a dispute, a petition can be filed with the probate court requesting the court’s determination of whether the patient is able to make his or her own decisions.

The law regarding durable powers of attorney and patient advocate designations is complex. Navigating an action to challenge a patient advocate designation requires knowledge of the law, as well as experience in Michigan probate court practice. Taking any legal action to resolve a problem involving a patient advocate designation is a step that should only be taken after consulting with a knowledgeable, experienced attorney.

Resolving Problems Involving a Patient Advocate Designation

When an issue or problem relating to a patient advocate designation arises, one possible solution is to engage family members in a serious dialogue about well-being of the vulnerable elder and his or her best interests. If the situation cannot be resolved, our experienced attorneys at BRMM can discuss the situation with you and help you determine the best course to pursue.

In some cases, that may mean attempting to resolve the issues among the family members. In other circumstances, it may mean filing a petition in probate court to remove the patient advocate. In appropriate cases, you may even want to consider asking the court to appoint a guardian or conservator — or both — to take care of the elder’s healthcare and financial decisions. Our elder law attorneys and probate litigation attorneys will work with you to solve any difficult situation involving your vulnerable loved one.

BRMM is located in Troy, Michigan, and serves clients throughout the Tri County and Detroit area, as well as in other parts of Michigan. We also assist Michigan clients with property or interests in Florida. There is no charge for your initial consultation.

Call us at (248) 494-4577 or complete our online form to set up your free consultation.

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