Some of today's most difficult ethical issues concern the "right to die" and "termination of life support." Unfortunately, there are no simple answers. In addition to ethical considerations, there are legal considerations that vary from state to state. Michigan's first legislation dealing with health care decisions and the appointment of a substitute decision-maker became effective on December 19, 1990.  Michigan’s statutes dealing with health care decision were amended effective January 3, 2005.

What is a living will?  A living will is a written statement that details your wishes in regard to health care decisions. Michigan law permits you to state your desires on "care, custody, and medical treatment" as part of a document in which you designate another person to make decisions concerning your care, custody and medical treatment for you.  A living will (by itself) is not binding in Michigan. However, a living will provides family members and medical professionals with documentation of your wishes, and, if combined with a designation of a patient advocate, becomes legally binding.

Is a durable power of attorney, or a durable power of attorney - health care, different from a living will? Yes. The emphasis in a durable power of attorney for health care is on designating a specific person(s) to make your health care decisions. It may be used in situations involving your temporary or permanent disability. The emphasis in a living will is on the type of care, or extent of treatment, you wish to receive. A living will is used only if you become permanently disabled or terminally ill.

Can a living will cover every health care decision?  It is impossible to provide for every health care contingency in a living will. However, a living will can provide important guidelines to those who may have to make decisions about your treatment or care.

Can I name someone to make health care decisions for me?  Yes. Under the law, you can name an individual who is 18 years or older and is of sound mind to act as your "patient advocate."  There are, however, limits on that person's power to make health care decisions for you. Your patient advocate can make health care decisions only when your treating physician and another physician or psychologist determine that you are unable to participate in making your own decisions. The patient advocate can only make decisions that you yourself could have made. If you are pregnant, your patient advocate cannot make a decision that would result in your death, no matter what your wishes are or how clearly you have stated them. The patient advocate may make a decision to withhold or withdraw treatment which would allow you to die only if you have expressed in a clear and convincing manner that your patient advocate is authorized to make that decision.

Can I change my mind?  Yes. You may revoke your designation at any time and in any manner as long as that manner makes it clear that you intend to revoke. Furthermore, if your intent is not clear, the probate court can be asked to determine your intent. A written revocation is the clearest means of conveying your intent. If you name your spouse as your patient advocate, a lawsuit for a divorce, an annulment or separate maintenance will automatically suspend the designation, and a judgment of divorce, annulment or separate maintenance will revoke it.

Must a living will be written?  Yes. The Michigan law requires that your durable power of attorney for health care (which may contain a living will) to be in writing and signed, dated and witnessed by two witnesses. It must clearly state that the patient advocate is authorized to make health care decisions. Your spouse, parent, child, grandchild, or sibling may not serve as a witness.  Your physician, anyone designated as your heir or beneficiary, the person you name as your patient advocate, anyone who works for your life or health insurance provider or a hospital treating you as a patient, or a nursing home in which you reside, may not witness your living will.

Who should I name to make health care decisions for me?  There are several factors to consider. First, you should look for someone who shares your philosophical or religious beliefs. You want someone who is close enough to you to know and understand your desires.  You also want someone who can make difficult decisions in a time of crisis. Also consider whether that person will be available. In these days of high mobility, consider whether he or she is likely to move out of state and out of your life in the next year or two.

What is the minimum age for signing a living will? Because Michigan does not have a statute that authorizes a living will as a separate document, there is no minimum age for signing a living will. Any one (of any age) may sign a living will. The living will by itself is not necessarily a legally binding document.  Standing alone, the wishes expressed in a living will may or may not be respected by a health care provider or by the courts. A living will should be signed in conjunction with, or its provisions incorporated into, a durable power of attorney for health care in order to make it binding.

What is the minimum age for signing a binding appointment of an agent to make health care decisions for me?  Michigan law provides that if you are 18 years or older, and of sound mind at the time of signing, you may designate a "patient advocate" to make health care decisions for you in the event that you become unable to participate in your own health care decisions.

What should a health care document say?  A health care document should designate another person to exercise powers concerning care, custody, and medical treatment decisions for you. A health care document may also include a statement of your wishes regarding your care, custody and medical treatment. Under Michigan law, if you wish to give your agent the authority to withhold or withdraw treatment from you that would allow you to die, your health care document, must state in a clear and convincing manner that you understand such action may result in your death. Your health care document must also state that the authority conferred upon your agent can be exercised only when you are no longer able to participate in your own medical care decisions.

Does a durable power of attorney, relating to asset matters, also cover health care?  Unlike a general durable power of attorney relating to asset management, Michigan law says your appointment of an agent under durable power of attorney for health care decisions can only become effective at the point you are incapable of making your own health care decisions. For this reason, a general durable power of attorney relating to asset management, which contains provisions for health care, will not be recognized in Michigan for the purposes of medical care decisions. However, even if you have a durable power of attorney for health care, your attorney may still include health care provisions in your general durable power because these provisions may be valid in other states where you may be present from time to time.

What will happen if a family member objects to the decision of my health care agent?  Your patient advocate has legal power to decide (e.g., should a respirator be discontinued?) even if a family member objects. However, many health care providers will be reluctant to act contrary to outspoken demands or threats from a close family member. Although seldom necessary, a court will enforce the decision of your health care agent.

What if I'm sick in a state other than Michigan?  Unfortunately, there is no uniformity yet among the states about health care agents. Presently, the wisest course is to appoint a health care agent to act for you anywhere, or at least have a "regular" durable power of attorney with a paragraph that permits your advocate to make health care decisions.

What if I disagree with the action my health care agent directs?  If you are able to express yourself in any way, by words, in writing, or even nodding or blinking, you, and you alone, make all health care decisions about yourself. Your health care agent acts if, and only if, you cannot make your own decisions.

Is it legally binding if I instruct a trusted person to accelerate my death (e.g., by pills) if I am not competent, suffering, and probably can't recover? No. The law permits withholding or withdrawing treatment, but it does not permit the hastening of death by other means. However, you may wish to specify that pain medication is to be administered to you to alleviate pain and suffering. This would be permitted even if it hastened your death.

To whom should I give copies of my health care declaration?  You should give a signed copy to your patient advocate or at least let him or her know where a signed copy is kept. You should also furnish a copy to your physician, and you may choose to give copies to other caregivers, such as family members or your religious advisor.

When it comes to termination of life support, is anything better than a compassionate doctor and a loving family?   No.

How do I get a durable power of attorney-health care?  There is no one form of durable power of attorney for health care. Many organizations are furnishing durable powers of attorney for health care free of charge. If you receive one of these and choose to use it, be sure that you understand it and that it clearly states your desires. We have developed a form of durable power of attorney for health care that we believe will meet your needs or can be modified to meet your needs. We would be happy to advise you on this important document.
Even if you have an existing durable power of attorney that contains a paragraph dealing with health care matters, we still recommend that you consider having a separate durable power of attorney for health care.

Advance Directive.  A term that applies to any form of document that states the type of medical treatment that you want or do not want when you are unable to participate in your own decisions, or appoints someone to make your medical treatment decisions for you when you cannot. It includes a living will and a health care power of attorney.

Agent.  The person you name under your durable power of attorney to make your health care decisions if you are unable to do so.

Attorney-in-Fact.  See Agent.

Directive to Physicians.  See Advance Directive and Living Will.

Guardian.  The person appointed by a court to make care, custody and health care decisions for you when the court has determined that you are unable to care for yourself.

Health Care Declaration.  See Advance Directive, Health Care Power of Attorney and Living Will.

Health Care Power of Attorney.  A document in which you appoint another person to make care, custody and medical decisions if you are unable to do so.

Health Care Proxy.  See Health Care Power of Attorney.

Living Will.  A document in which you express your preferences for the type of medical treatment you wish to receive, or not receive, under certain circumstances, in the event that you are no longer able to make these decisions for yourself.

Patient.  Under Michigan law, a person who appoints another to make his or her health care decisions when that person is no longer able to make those decisions for himself or herself.

Patient Advocate.  Under Michigan law, the person who is named in a durable power of attorney for health care who makes health care decisions for another.

Principal.  The person who appoints another to make decisions for him or her under a power of attorney. Same as Patient.

This summary is intended as a source of general information.  If you have questions or desire additional information, please contact Ryan M. Wilson at (517) 377-0897 or rwilson@fraserlawfirm.com.