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When a Michigan Patient Advocate May Withhold Treatment
Michigan has no living will statute. The document that does that work here is the patient advocate designation, and it does it by appointing a person rather than by stating instructions, which means the person’s authority is what the statute regulates. The regulation is specific about the one decision families most need the document for.
MCL 700.5509(1)(e) provides that a patient advocate may make a decision to withhold or withdraw treatment that would allow a patient to die only if the patient has expressed in a clear and convincing manner that the advocate is authorized to make such a decision, and that the patient acknowledges that such a decision could or would allow the patient’s death. A designation that names an advocate and stops there does not confer that power.
The Authorization Has to Be in the Document
The standard is clear and convincing, and the subject is the patient’s own expression. What a family member believes the patient would have wanted is not the test. What the patient expressed, in a manner that meets the standard, is, and the practical place for that expression is the designation itself, in language that names the decision and acknowledges its consequence.
The two halves of the subsection are separate requirements. The patient must have authorized the advocate to make the decision, and the patient must have acknowledged that the decision could or would allow death. A form that grants broad authority without the acknowledgment is short by one element.
The same statute lets a designation carry a statement of the patient’s desires on care, custody, and treatment under MCL 700.5507, along with instructions about how the advocate is to decide. That statement is where the clear and convincing expression is written, and our Michigan durable power of attorney page explains how the financial and healthcare documents are drafted alongside one another.
The Other Limits the Statute Imposes
The advocate acts under the standards of care applicable to fiduciaries and must take reasonable steps to follow the desires, instructions, or guidelines the patient gave while able to participate, whether given orally or in the designation. An advocate may not exercise powers the patient could not have exercised on the patient’s own behalf.
Two limits are absolute. The designation cannot be used to withhold or withdraw treatment from a pregnant patient where doing so would result in the patient’s death. And an advocate may not delegate the powers to another individual without the patient’s prior authorization, so a designated advocate who becomes unavailable does not hand the role to someone else unless the document provides for it.
Mental health decisions carry their own clear and convincing requirement. The advocate may consent to forced administration of medication or to inpatient hospitalization, other than as a formal voluntary patient, only if the patient expressed in a clear and convincing manner that the advocate is authorized to consent to that treatment. Hospice care may be chosen without a separate expression.
The Authority Switches On, and Switches Off
None of these powers is exercisable at signing. Under MCL 700.5508, the advocate’s authority begins only when the patient is unable to participate in treatment decisions, and that inability is determined by the attending physician together with another physician or a licensed psychologist, on examination, in writing, entered in the medical record, and reviewed at least annually.
A dispute about that determination has a fast statutory track. A petition may be filed in the court of the county where the patient resides or is located, the court appoints a guardian ad litem for the patient, a hearing is held as soon as possible and not later than seven days after the petition is received, and the court decides as soon as possible and not later than seven days after the hearing.
The authority also ends on its own. Under MCL 700.5509(2), a designation is suspended when the patient regains the ability to participate in decisions, and it stays suspended for as long as the patient is able to. A later determination of inability revives it. The document does not transfer decision-making permanently, only for the period the patient cannot decide.
Who May Witness It
The execution rules in MCL 700.5506 are where designations most often fail on paper. The document must be in writing, signed, dated, executed voluntarily, witnessed by two people, and made part of the medical record before it is implemented. The witness list is long and specific.
A witness may not be the patient’s spouse, parent, child, grandchild, sibling, presumptive heir, or known devisee at the time of witnessing, and may not be the patient’s physician or the patient advocate. Nor may a witness be an employee of a life or health insurance provider for the patient, of a health facility treating the patient, of a home for the aged where the patient resides, or of a community mental health program or hospital providing the patient mental health services. A witness may not sign unless the patient appears to be of sound mind and under no duress, fraud, or undue influence.
A designation signed at a kitchen table with two adult children as witnesses has two disqualified witnesses. The document fails on a formality that would have taken two neighbors to satisfy. One call is usually enough for us to tell you where things stand. Call us at (800) 525-6386.
Writing the Authorization the Statute Requires
The difference between a designation that works at the bedside and one that does not is usually a sentence, and the statute says what the sentence has to accomplish. We draft patient advocate designations at Neumann Law Group as part of our Michigan estate planning work for clients across Northern Michigan and statewide. We are glad to talk through any of these questions. Call (800) 525-6386 or send us a message and we will get back to you.