Health Care Decisions

Just as we create estate plans for our eventual demise, we also need to plan ahead for the possibility that we will become sick and unable to make our own medical decisions. Medical science has created many miracles, among them the technology to keep patients alive longer, sometimes indefinitely. As a result of many well-publicized "right to die" cases, states have made it possible for individuals to give detailed instructions regarding the kind of care they would like to receive should they become terminally ill or are in a permanently unconscious state. These instructions fall under the general category of "health care decision making." In Michigan, these instructions are contained in a Designation of Patient Advocate.

If an individual becomes incapacitated, it is important that someone have the legal authority to communicate that person's wishes concerning medical treatment. Similar to a power of attorney, a Designation of Patient Advocate allows an individual to appoint someone else to act as their patient advocate, but for medical, as opposed to financial decisions. The Designation of Patient Advocate is a document executed by a competent person (the principal) giving another person (the patient advocate) the authority to make health care decisions for the principal if he or she is unable to communicate such decisions. By executing a Designation of Patient Advocate, principals ensure that the instructions that they have given their agent will be carried out. A Designation of Patient Advocate is especially important to have if an individual and family members may disagree about treatment.

In general, Designation of Patient Advocate takes effect only when the principal requires medical treatment and a physician determines that the principal is unable to communicate his or her wishes concerning treatment. If the principal later becomes able to express his or her own wishes, he or she will resume control and the Designation of Patient Advocate will not need to be used.

Appointing a Patient Advocate

Since the Patient Advocate will have the authority to make medical decisions in the event the principal is unable to make such decisions for him- or herself, the Patient Advocate should be a family member or friend that the principal trusts to follow his or her instructions. Before executing a Designation of Patient Advocate, the principal should talk to the person whom he or she wants to name as the Patient Advocate about the principal's wishes concerning medical decisions, especially life-sustaining treatment.  It is important to pick a Patient Advocate who will follow your directions.  For instance, if you do not want to be kept alive artificially for months on machines, you would not want to choose a Patient Advocate who is opposed to withdrawing life support based on their own religious beliefs.

Once the Designation of Patient Advocate is drawn up, the Patient Advocate should have a copy and easy access to the original document.  The principal should have a copy and the principal's physician should keep a copy with that individual's medical records.

Contained within the Designation of Patient Advocate should be medical directives. Such directives provide the Patient Advocate with instructions on what type of care the principal would like. Medical directives contain directions to refuse or remove life support in the event the principal is in a coma or a vegetative state, or it may provide instructions to use all efforts to keep the principal alive, no matter what the circumstances. Medical directives can also be broader statements granting general authority for all medical decisions that are important to the principal. These broader medical directives give the Patient Advocate guidance in less serious situations.

Living will provisions are contained in the Designation of Patient Advocate and give instructions regarding treatment if the individual becomes terminally ill or is in a persistent vegetative state and is unable to communicate his or her own instructions. The living will provisions state under what conditions life-sustaining treatment should be terminated. If an individual would like to avoid life-sustaining treatment when it would be hopeless, he or she needs to include living will provisions in the Designation of Patient Advocate. A living will in of itself, however, is not necessarily a substitute for a health care proxy or broader medical directive. It simply dictates the withdrawal of life support in instances of terminal illness, coma or a vegetative state.

Also, do not confuse living will provisions with a "do not resuscitate" order (DNR). A DNR says that if you are having a medical emergency such as a heart attack or stroke, medical professionals may not try to revive you. This is very different from a living will provisions, which only goes into effect if you are comatose or in a vegetative state. Everyone can benefit from a living will while DNRs are only for very elderly and/or frail patients for whom it wouldn't make sense to administer CPR.

The Designation of Patient Advocate is not just for older people.  If a young person who was age 17 years and 11 months old is injured in a car accident and requires surgery, his parents are allowed to consent to such medical treatment by operation of law because the 17 year old is still a minor.  However, if the car accident were to occur one month later after the young person had turned age 18, his parents cannot make these decisions.  The reason for this is our system of law provides that as adult Americans (age 18 and up) no one can make legal, financial or health care decisions for us unless a probate court determines that we are incapacitated.  The parents would be required to establish a guardianship in order to have ongoing authority to make medical decisions if their 18 year old child remained incapacitated.  Ask about our “Young Person’s Emergency Document Package,” which avoids these problems.

Note that there is a special “implied consent” law in place if we are injured in an accident or otherwise rushed to the emergency room and cannot communicate (such as due to a stroke).  Unless there is a DNR order in place that the medical staff are aware of, the law presumes that we would consent to any emergency medical treatment needed to stabilize us in order to save our lives.  As such, emergency room staff and paramedics have authority to treat us in these situations, even when we cannot consent and they do not have our Designation of Patient Advocate.  However, once the injured person is stabilized, if they remain unable to communicate or consent to additional treatment someone must have the legal authority to consent to and direct ongoing medical treatment, either through a guardianship or Designation of Patient Advocate.