QUESTIONS AND ANSWERS ON DURABLE
POWER OF ATTORNEY UNDER MI PA 312
1. What is Durable Power of Attorney for health care?
A durable Power of Attorney is a document in which you appoint an advocate to make health &care, custody and medical treatment decisions if you become unable to do so.
After you talk to family, friends and your physician about your health care wishes, designate someone you trust to be your patient advocate. Fill out the form in the presence of two witnesses, sign it and have the witnesses sign it.
Your advocate cannot make a heath care, custody or medical treatment decision on your behalf unless your attending physician and another physician or licensed psychologist determine that you are not able to do so.
3. Who can establish a Durable Power of Attorney for health care?
Anyone who is 18 years old an d competent may establish a Durable Power of Attorney for health care.
4. Can I appoint a person to manage my financial affairs in a Durable Power of Attorney for health care?
A person appointed in a Durable Power of Attorney for health care is allowed only to make health &care decisions, arrangements for medical services, and related decisions. If you want to appoint a &person to handle you other financial or legal affairs, you should consult an attorney about &completing a Durable Power of Attorney for financial or legal matters, or both.
5. Why is the Durable Power of Attorney law needed?
Health care providers have available to them modern medical procedures to save lives and relieve &suffering. However, these procedures may, in effect, prolong the dying process. If you lose your decision-making abilities, a physician may not know whether you want to exhaust every medical alternative, or whether you want to accept only medical treatments that would ensure comfort, and not prolong the dying process.
With a Durable Power of Attorney, your advocate can express your wishes on you behalf. Thus, your physician will know whether to perform a modern medical procedure, or withhold or &withdraw treatment, and thus allow you to die.
6. Is this a "right-to-die" law?
You may authorize your advocate in you Durable Power of Attorney to withhold or withdraw treatment, allowing you to die. You may also authorize you advocate in your Durable Power of Attorney to exhaust every medical alternative, including experiments medical procedures which &would prevent or slow down the dying process. Your advocate could also make routine care, custody and treatment decisions.
Therefore, this is a "right to determine you medical treatment law." Whether you choose to have dramatic life-sustaining treatments withheld or withdrawn, or whether you choose to exhaustevery medical possibility to prolong your life, or whether you merely authorize your advocate to &make routine decisions, you have a right to determine your care, custody and medical treatment. This law is a way for you to make sure that you wishes are honored if you lose decision-making abilities.
7. I know that my advocate may make a decision to withhold or withdraw life-sustaining medical treatments if I permit my advocate to do so. What other kinds of decisions will my advocate be able to make?
You may permit your advocate to make routine medical care and custody decisions like dressing, eating and taking medications. You may authorize your advocate to decide, for example, whether you receive that care in a nursing home, or an "assisted living" apartment, or whether home health aides should be hired to give you that care in your own home. Consider you options carefully and discuss with your advocate the kinds of care and custody you would want if you lose decision-making abilities.
8. If my advocate makes a decision to withhold or withdraw treatment, and I die, will my advocate be charged with assisting a suicide?
Refusing life-sustaining treatment is not considered suicide in Michigan; and withholding or withdrawing treatment, thus allowing you to die, is not considered assisting a suicide under Michigan law. Therefore, you patient advocate cannot be charged with assisting a suicide. To protect you and your advocate, you must specifically state whether you would want treatment &withheld or withdrawn to allow you to die.
9. Are artificial nutrition and hydration medical treatments that I may authorize my advocate &to withhold or withdraw?
Artificial nutrition and hydration are generally considered life-sustaining medical treatments. Under this law, an advocate may withhold or withdraw a medical treatment which could or would allow you to die, including artificial hydration and nutrition. If you wish this step to be considered by your advocate, you must authorize it in writing, and acknowledge that you &understand such a decision would allow you to die.
There has been quite a bit of controversy over this issue. So, you may want to be aware of the consequences of such a decision and clearly indicate your wishes regarding withholding or &withdrawing artificial nutrition and hydration in your Durable Power of Attorney.
10. Must I have a Durable Power of Attorney for health care?
No. Establishing a Durable Power of Attorney for health care is completely voluntary. Neither a health care provider nor an insurance company can require you to have a Durable Power of Attorney as a condition of treatment or coverage; to do so is a violation of the law.
11. Do I need an attorney to fill out the form?
No. Anyone can establish a Durable Power of Attorney without an attorney. Review thestep-by-step guide provided in this booklet; or, if you feel itís necessary, consult an attorney who specialized in probate law, or you own attorney.
12. Should I use the form in this booklet?
This form is a Durable Power of Attorney form which meets the requirements of Michigan law. You may establish a different form with an attorney if you choose to do so.
13. What should I do with my Durable Power of Attorney after it is signed and witnessed?
Make it part of your medical record by giving it to your doctor. Then give signed copies to your patient advocate, to your successor advocate if you appoint one, to your attorney if you have one, and give a copy to anyone who may be affected by your decision to appoint a health care advocate. This may be affected by your decision to appoint a health care advocate. This may be &your spouse, significant other, or other family members. If you enter a nursing home or hospital, make sure the facility has a copy of your Durable Power of Attorney for health care.
14. Why do I need two witnesses?
The two witnesses confirm that you are signing the Durable Power of Attorney voluntarily, and under no duress, fraud or undue influence.
Under Michigan law, a physician is not compelled to adhere to your Durable Power of Attorney unless two witnesses sign it. The two signatures indicate that you signed it voluntarily, and &under no duress, fraud or undue influence.
15. How does this law affect physically disabled persons?
The law affects disabled individuals the same way it affects those who are not physically disabled. Under no circumstances is a physically disabled person obligated under this law to establish a Durable Power of Attorney. If a disabled person desires to establish one, then by all means, be or she should write a Durable Power of Attorney to ensure that if he or she loses decision-making abilities, then a trussed advocate would make health care, custody and medical treatment decisions on behalf of the patient.
Physically disabled individuals may have a special reason to use a Durable Power of Attorney for health care. Those who poorly understand whit it mean to live with a disability, including many physicians, may make medical care choices on behalf of the disabled which are different from what disabled persons would make for themselves. A Durable Power of Attorney offers the assurance that you may choose an advocate who truly understands you lifestyle and your values.
16. How does this law affect minors and mentally ill patients?
This law has no effect on minors or mentally ill patients. Minors are unable, under Michigan law, to enter into contracts of any kind, including the Durable Power of Attorney for health care.
Mentally ill patients cannot establish a Durable Power of Attorney for health care since a condition of the Durable Power of Attorney is that the individual must be of sound mind. If there is any dispute as to whether the patient was of sound mind at the time of the designation, then an interested third party may bring the issue to the probate court for a determination.
17. Can I change my Durable Power of Attorney?
You can revoke your Durable Power of Attorney at any time and in any manner in which you are able to communicate such an intent. If you choose to appoint a different advocate, or make any other changes, then you simply establish a new Durable Power of Attorney indicating your wishes. Your previous Durable Power of Attorney becomes ineffective on the date of signing a new Durable Power of Attorney.
18. Is there a procedure to ensure that my advocate is acting according to my expressed &wishes?
Yes. An interested individual who believes that your advocate is not acting according to your wishes may file a petition with the probate court in the county in which you reside.
19. Is there anyone who may not be appointed as my advocate?
You may not appoint anyone who is younger than 18 years of age.
20. What is the Patient Advocate Acceptance Form?
Your patient advocate must acknowledge his or her rights and responsibilities as your patient advocate before he or she can make decisions for you. If you advocate chooses not to sign the form, then your Durable Power of Attorney designating this individual may not be honored. You should also make this advocate acceptance form a part of your medical record with you Durable Power of Attorney. It is best to make the acceptance form and the Durable Power of Attorney form parts of your medical record at the same time.
21. When does my advocate act on my behalf?
Your advocate starts to make decisions when you lose decision-making abilities. That time is determined by your attending physician and a second physician or a licensed psychologist.
Then, the person you named will have the authority to work with your doctors or other care gives to make the same decisions that you would have made for yourself, within the limits you set in your Durable Power of Attorney document.
22. When does my Durable Power of Attorney go into effect?
The Durable Power of Attorney becomes effective as soon as it is signed and witnessed, the patient advocate signs the acceptance statement, and the documents are inserted in your medical records.
23. What is the difference between a Durable Power of Attorney and Living Will?
The Living Will and the Durable Power of Attorney are both form of the "Advance Directives." Advance directives are means to assure that your wishes regarding health care are honored by health care providers if you lack decision-making abilities.
With the Durable Power of Attorney, you appoint someone you trust to make decisions on your behalf. With a Living Will, you specifically state what type(s) of treatment you want if you become unable to express your wishes. With a Living Will, however, you do not appoint someone to make those decisions for you.
24. If I indicate in my Durable Power of Attorney which medical treatments I want or donít want, why should I establish a Living Will?
If you donít have anyone to appoint as you patient advocate, then creating a Living Will is a good decision. Even if you do have someone you trust to serve as your patient advocate, a Living Will may serve as another guide for your advocate and physician to determine which types of treatment you want or donít want. You should, however, discuss at length with your advocate and physician which types of treatments you would want if you become unable to communicate your wishes. You should be aware that the Living Will is not written into Michigan law; the Durable Power of Attorney is in Michigan law.
A STEP BY STEP BY STEP GUIDE TO ESTABLISHING A DURABLE POWER OF ATTORNEY
Anyone who is 18 years old and of sound mind may write a Durable Power of Attorney for health care. This means you may voluntarily elect an advocate to make medical care, custody and treatment decisions for you if you become unable to express your medical care wishes.
STEP 1:Let people know about your feelings and your use of the Durable Power of Attorney. Talk to , family, friends, your physician, your attorney (if you have one), or anyone else who might be affected by your decision to use the Durable Power of Attorney.
STEP 2:Consider the kinds of treatment decisions which might need to be made for you in the future, and what your wishes would be. You can say what kinds of treatments you want or donít want to have after talking to your physician.
STEP 3:Name a person you trust to speak on your behalf when you canít express your health care wishes. Your advocate will work with your doctors or other care providers to make the same kinds of decisions that you could have made for yourself, based on your expressed wishes. You may name a "successor advocate" if the first person you name is unable to act as your advocate when the time comes.
STEP 4:Fill out a form. You donít need an attorney to fill out the Durable Power of Attorney form; however, you might want to consult an attorney experienced in probate law.
STEP 5:If you are empowering your advocate to make decisions to withhold or withdraw treatment, thus allowing you to die, then write a statement such as, Í authorize (name your patient advocate) to make a decision to withhold or withdraw treatment which could or would allow me to die. I acknowledge that such a decision could or would allow me to die."
The statement should appear in the space provided for recording your personal preferences regarding care, custody and medical treatment. You may also want to specify life-sustaining treatment you want or donít want, including artificial nutrition and hydration. The form in this booklet contains the proper wording.
STEP 6:Your Durable Power of Attorney designation must be in writing, signed by you, witnessed by people who are not relatives or interested parties to your will or estate, dated, and executed voluntarily. The witnesses only sign the Durable Power of Attorney if you are of sound mind and are not under duress, fraud, or undue influence to designate a Durable Power of Attorney.
STEP 7:Give an original signed copy to your advocate (not a photocopy), and give a copy to your physician.
STEP 8:Before acting as a patient advocate, the proposed patient advocate must sign and acceptance to your Durable Power of Attorney. Make your Durable Power of Attorney and the advocate acceptance part of your medical record.
Durable Power of Attorney for Health Care
For Care, Custody, and Medical Treatment Decisions
I,_____________________________________________________ am of sound mind, and I voluntarily make this(print or type your full name)
I designate __________________________________________________________________________residing at
as my patient advocate, with the following power to be exercised in my name and for my benefit, to make decisions regarding care, custody or medical treatment if I become unable to participate n care, custody and medical treatment decisions. The determination of when I am unable to participate in care, custody and medical treatment decisions shall be made by my attending physician and another physician or licensed psychologist.
[(Optional)] If the first individual is unable, unwilling or unavailable to serve as my patient advocate, then I designate:
With respect to my care, custody and medical treatment, my advocate shall have the power to make each and every judgement for the proper and adequate care and custody of my person, including by not limited to:
My advocate shall be guided in making such decisions by what I have told my advocate about personal preferences regarding such care.
My wishes concerning care are the following:
I authorize my patient advocate to make a decision to withhold treatment which could or would allow me to die. I acknowledge that such a decision could or would allow me to die.
(sign this statement if you wish to give this authority to your advocate)
This Durable Power of Attorney shall not be affected by my disability or incapacity. This Durable Power of Attorney is governed by Michigan law. I may revoke this designation at any time and by communicating in any manner that this designation does not reflect my wishes.
It is my intent that my family, the medical facility, and any doctors, nurses and other medical personal involved in my care, not be liable for implementing the decisions of my patient advocate or honoring wishes expressed in this designation.
Photostatic copies of this document, after it is signed and witnessed, shall have the same legal forces as the original document.
I voluntarily sign this Durable Power of Attorney after careful consideration. I accept its meaning and I accept its consequences.
(your street address)
(city, Michigan, zip code) (date)
Notice Regarding Witnesses
You must have two adult witnesses who should be disinterested individual and must not be your spouse, parent, child, grandchild, sibling, presumptive heir, known devisee at the time of the witnessing, physician, patient advocate, an employee of your life or health insurance provider, an employee of a health facility that is treating you, or an employee of a home for the aged.
Statement of Witnesses
We sign below as witnesses. This declaration was signed in our presence. The declarant appears to be of sound mind, and to be making this designation voluntarily, and under no duress, fraud or undue influence.
Witness 1 Signature:______________________________________________________________________________ (print or type full name)
Witness 2 Signature:______________________________________________________________________________ (print or type full name)
Acceptance by Patient Advocate
I understand the above conditions and I accept the designation as patient advocate for: