This class will answer the following questions:

Why Living Wills are not valid in Michigan?

What are the differences between a Living Will, a Patient Advocate Designation, a Medical Power of Attorney and an Advance Directive?

What is required under Michigan law to ensure that your wishes regarding medical care are followed?

What is the impact of recent changes in Michigan and federal laws regarding privacy, organ donation, end-of-life care and mental health care decision making?

What happens if you do not plan for your incapacity?

What additional estate planning should you do?

WHAT WILL YOU LEARN FROM THIS CLASS?

The term “living will” is a misnomer. It is not a “will” but is instead a statement that tells a physician to withdraw life support in the face of certain death.

Although living wills have been recognized by medical providers in the past, there is no statutory authority requiring a living will to be recognized and their legality has been highly questionable since enactment of the Durable Power of Attorney for Health Care (“Patient Advocate”) Statute in December 1990 and the

Michigan Supreme Court case of In Re Martin in 1995.

We, therefore, highly recommend that you DO NOT rely upon a living will OR powers of attorney drafted before December 1990 as the means to ensure that your

wishes regarding medical care will be followed.

WHY LIVING WILLS ARE NOT VALID?

Under Michigan law, the way to ensure that your wishes regarding medical care are followed is to execute a Patient Advocate Designation (“PAD”) a/k/a a Medical Power of Attorney. The document should contain provisions which:

“Spring” it into effect upon your “incapacity”

Are HIPAA compliant

State your wishes regarding organ donation

Allow the patient advocate to control levels of care, including the withdrawal of life sustaining equipment in case you are in a “persistent vegetative state”

Address voluntary and involuntary hospitalization and mental health commitments

PATIENT ADVOCATE DESIGNATION (“PAD”)

In April 2003 provisions were added to the Health Insurance Portability & Accountability Act of 1993 (“HIPAA”) restricting a health care provider’s ability to release “protected health information” to third parties, and imposing severe civil (up to $100,000) and criminal (up to 10 years in prison) penalties for violation of this law.

HIPAA states that your protected health information can only be released to you or someone authorized under state law to make medical decisions for you (called your “personal representative”). Conceptually, this should include your patient advocate.

However, since a PAD requires certificates from two doctors before your advocate can act, HIPAA may prevent your advocate from getting the very certificates they may need to start acting for you.

THE HIPAA “CATCH-22”

Historically, it was presumed under Michigan law that you did not wish to make an anatomical gift unless such a desire was set forth in writing (i.e. - an organ donation registry, etc).

As of July 2003 Michigan law changed and now “presumes” that you have no objection to someone consenting on your behalf to make an anatomical gift (including donating your body for medical research) unless you have set forth in writing that you DO NOT wish to make such a donation.

The law also requires physicians and hospitals to request such donations from a list comprised of your relatives, as prioritized by the statute. That person may or may not be the person you want to be making such decisions.

OUR “PRESUMPTUOUS” ORGAN DONATION LAW

Your PAD needs to grant your advocate specific authority to withdraw artificial life support and state under what circumstances such authority is granted. The PAD must also contain an acknowledgement that the withdraw of such support could result in your death.

Without such a document in place a probate court judge or, as the Terri Schiavo case illustrates, perhaps Congress and the governor will make these decisions for you.

If you have spiritual beliefs against receiving blood or being resuscitated those provisions should be included in your PAD. You should also complete a Do-Not-Resuscitate Order form and obtain a bracelet to be worn at all times. If you are found by medical personnel without any vital signs they are prohibited from trying to resuscitate you.

LIFE SUPPORT WITHDRAWAL PROVISIONS

As of January 1, 2005, the Michigan Mental Health Code requires that certain provisions be contained in your PAD in order for your patient advocate to have authority to make mental health care decisions for you. Specifically, your PAD needs to contain the following provisions:

A specific grant of authority to make mental health care decisions, including the power to address

voluntary and involuntary hospitalization, mental health commitments and

assisted outpatient treatment needs

Up to 30 day waiver of right to revoke a grant of mental health decision making powers

MENTAL HEALTH TREATMENT PROVISIONS

If the Probate Court finds by clear and convincing evidence that a person is incapacitated and needs continuing care and supervision, the court may appoint a Guardian to make care decisions on the person’s behalf.

A Guardian’s right to make medical treatment decisions is superior to that of a Patient Surrogate, but inferior to that of a Patient Advocate.

The procedures required to establish and maintain a Guardianship can be costly, time consuming and restrictive.

GUARDIANSHIP

In addition to a Patient Advocate Designation and HIPAA Authorization, you should have the following legal documents in place to make certain that your financial and legal issues can be handled properly.

A Financial Power of Attorney (a/k/a a General Durable Power of Attorney)

A Last Will and Testament (i.e. - instructions for the probate court judge)

A Revocable Living Trust (if you wish to avoid “Death Probate”)

ADDITIONAL ESTATE PLANNING REQUIRED