A Michigan statute governs designation of a patient advocate. The law provides that:
An individual 18 years of age or older who is of sound mind at the time a patient advocate designation is made may designate in writing another individual who is 18 years of age or older to exercise powers concerning care, custody, and medical or mental health treatment decisions for the individual making the patient advocate designation.
The statute also establishes that a patient advocate designation must be executed in the presence of and signed by two witnesses. A witness should “not sign unless the patient appears to be of sound mind and under no duress, fraud, or undue influence.” A witness cannot be a close relative of the person executing the designation (spouse, parent, child, grandchild, sibling) or a potential heir. Other specific people are also disqualified from serving as witnesses.
As stated in the statute, a validly designated patient advocate has authority to make decisions relating to care, custody, and medical and mental health treatment. When you create a designation, you specify the nature of the powers your advocate will have. Your patient advocate can make decisions for you only after signing an acceptance and only when you are unable to make your own decisions. Your attending physician must determine that you cannot make your own treatment decisions.
This individual must act in your best interests and take reasonable steps to implement your expressed instructions and preferences. Your wishes may be in writing or apparent from your own previous treatment decisions.
There are limitations on what a patient advocate can do. They cannot allow suicide or homicide, make a life-ending decision if you are pregnant, or delegate their powers to another person without your prior authorization. Your patient advocate can only withhold or withdraw treatment to allow you to die if you clearly authorized the advocate to make that decision.
If you do not have valid patient advocate designation, no one (not even your spouse or children) can make your medical treatment decisions if you become incapacitated temporarily or permanently. Your loved ones will have to ask the probate court to appoint a guardian who can make those decisions. This process is referred to as living probate.
The guardianship process consumes time and finances, at a point when every minute may be critical to getting care and treatment for you that is consistent with your own wishes. And if your loved ones disagree about who should be appointed as guardian or what care you should receive, the court proceeding could become a contested guardianship, which consumes even more time and more money.
If you do not have a patient advocate or otherwise made clear your end-of-life wishes, the law requires that you remain on life support, even if that would not be your preference. By confirming your own wishes and designating someone to make decisions, your durable power of attorney for health care protects you and protects your family if you become incapacitated at any point for any length of time. It’s essential to have one. It’s also important to make certain that it is valid under Michigan law.
The pandemic made the importance of durable powers of attorney very clear. If you still don’t have these documents as part of your estate plan, you should put them in place soon.
Executing a valid patient advocate designation requires compliance with all the provisions of Michigan law. While you aren’t required to have an attorney to prepare one, it’s never a good idea to create documents in your estate plan without advice from an experienced estate planning lawyer.
Filling out a form or using the do-it-yourself approach for any estate planning document is full of inherent risks, such as an invalid document. The best approach to creating a valid patient advocate designation is to include it in a thoughtful, complete estate plan you put in place with assistance from an experienced estate planning attorney.
Your lawyer explains the designation before you sign it and makes certain that the document and execution comply with all the legal requirements. A knowledgeable attorney also ensures that your document is executed and drafted properly to address potential challenges that may arise in the future. Finally, your attorney makes certain that you understand the other documents that should also be part of your estate plan, like a will or trust.
BRMM attorneys assist clients with the full range of estate planning needs, including patient advocate designations. We’ve been providing legal services to clients for more than 40 years. Our compassion, credentials, and commitment set us apart.
Call us at (248) 494-4577 to talk about your estate planning documents. We serve clients in Troy, Oakland County, and surrounding areas, as well as out-of-state clients with estate and probate matters arising in Michigan.