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Monday, September 02, 2013

The Medical Durable Power of Attorney in Michigan

One of the important components of a longevity and estate plan is the creation of legal instruments for medical and other personal care decisions.  In Michigan, this can be done with a Medical Durable Power of Attorney, Directive to Physicians, and Authorization for Release of Protected Health Information.  These legal instruments pertain to medical and end-of-life decisions as well as simply being able to obtain medical information.  This blog is about the Medical Durable Power of Attorney.

With the Medical Durable Power of Attorney, you can designate a patient advocate to make medical and other personal care decisions for you.  The patient advocate can be anyone of your choice, including a spouse, adult child, friend, or other trusted individual. If the person you appoint cannot act in the future, you can designate one or two alternates to act instead.  It is usually best to designate one person to act as your patient advocate. The reason for this is so it will be clear to medical and other care professionals who has actual legal authority to act on your behalf.  While you can designate two people to be co-patient advocates, doctors may be confused about if that means both people must be present to make a decision, which can be cumbersome and slow down the decision making process.  If two co-patient advocates are appointed, the medical durable power of attorney must be carefully drafted to address how to handle differences of opinion amongst them and how decisions can be made if only one patient advocate is available or nearby.

It is important to choose a patient advocate carefully, because you are granting them the authority to make medical decisions including consenting to surgery and other types of treatment as well as where you reside, be it at home, in an assisted living facility, or nursing home.  However, by appointing a patient advocate, you do not lose control of your medical affairs or independence, because under Michigan’s Estates and Protected Individuals code, your patient advocate can only make decisions for you if your attending physician and another physician or licensed psychiatrist first exam you and determine that you are unable to participate in medical treatment decisions.  Sometimes, that is very clear, such as if one is unconscious after an accident or in a coma.  It may be less clear if one is unable to make medical decisions if it is a frail, elderly person or someone in the beginning stages of dementia.  If you recover, you regain the legal ability to make your own decisions.

Designating a patient advocate is extremely important because, in the absence of this legal instrument being in place, someone would have to file a petition for the appointment of a guardianship for you in probate court.  There, the probate court would have to hold a hearing to determine if you are incapacitated.  If the judge determines you are incapacitated, he or she would then appoint a guardian for you.  The guardian could be anyone of the judge’s choice, including the person who filed the petition, an attorney, public administrator, or another family member.  The court guardianship process is more expensive and time consuming that creating a Medical Durable Power of Attorney.  In addition, it could be embarrassing and stressful to be summoned into open court and have it discussed why or why you are not incompetent in front of a public audience.  If it is your loved ones petitioning for the guardianship, it can be a stressful and emotionally upsetting process for them too.  If you recover, you have to prove that to the judge, which could involve another court hearing.

Fortunately, Michigan law allows for that to be avoided by designating a patient advocate in advance of becoming incapacitated.  That way, you can avoid becoming under the jurisdiction of the court and can ensure that the trusted individual of your choice makes medical and other care decisions for you.

Michigan law has clear legal requirements for what must be stated in the medical power of attorney.  As such, it is important to avoid form documents found on internet sites and office supplies stores that may or may not be state specific or up-to-date.  Otherwise, the document may not be accepted by medical providers.  After all, one of the purposes of having a properly drafted medical power of attorney is to have peace of mind that it will work when needed.

Andrew Byers drafts medical durable powers of attorney and counsels clients about designating a patient advocate as part of his estate planning practice in Auburn Hills, Michigan.


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Elder Law attorney Andrew Byers assists clients in Auburn Hills, MI and throughout Oakland County, MI including Rochester Hills, Rochester, Troy, Bloomfield Township, Lake Orion, Oxford, Waterford, Clarkston, Independence Township, and Pontiac, as well as throughout the metropolitan Detroit area, including Macomb County and Wayne County, Michigan.



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