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George F. Bearup, J.D. Senior Legal Trust Advisor

2-Dec-19

Advance Directives – Critical in the Absence of A Family Consent Law

Take-Away: Michigan does not have a Family Consent Law. In the absence of such a law, even more, importance is placed on an individual executing a durable power of attorney for health care, or an advance directive, in which one or more patient advocates are named to make decisions for the patient when the patient is unable to participate in their own health care decisions.

Background: A family consent law authorizes family members to make end-of-life medical treatment decisions for patients using an objective standard, or to communicate a patient’s treatment preferences using a subjective standard. Some hospitals will allow family members to communicate a patient’s treatment decisions without first requiring the appointment of a guardian for the patient. However, not all hospitals have such policies in place. In the absence of such a policy, a patient’s family will have to petition a probate court for a guardian to be appointed to make health care decisions on the patient’s behalf, a process that can be time-consuming, expensive, and open to the public.

Family Consent Laws:  A family consent law can be followed in the absence of a durable power of attorney for health care. This type of law provides an order of priority for the selection of a surrogate decision-maker for a patient who is unable to participate in his or her own health care treatment. Usually, these laws also limit the medical treatment decisions that the surrogate may make on the patient’s behalf. Normally a family consent law includes a list of interested persons who have a right either to make decisions or to object to the surrogate’s decisions. Physicians have an incentive to follow these family consent laws because they are protected from liability if they follow the law and its priority of surrogate decision-makers. These laws customarily create a hierarchy of decision-makers, the last being surrogate family decision-makers, listed in priority. The usual priority includes: (i) the patient makes his/her own decisions, so long as he/she is competent to provide informed consent to treatment; (ii) if the incompetent patient has executed a durable power of attorney for health care (or advance directive) the agent identified in the advance directive must be notified and consulted; (iii) if there is no agent appointed by the incompetent patient, then a court-appointed guardian possesses authority to direct the patient’s treatment; and (iv) if there is no court-appointed guardian, then the default surrogate family member is consulted in accordance with the priority list set forth in the family consent law.

Uniform Law: There exists a model family consent law, the Uniform Healthcare Decisions Act of 1993. So far, Michigan has opted to not adopt that uniform law that many other states have embraced.

Michigan Statutes: Michigan does have two statutes that contemplate some limited involvement of family members on a patient’s behalf, but they are narrow.

  • Indigent Patients: Michigan’s Social Welfare Act authorizes next-of-kin to provide consent to medical treatment for an indigent patient who needs essential medical care. [MCL 400.1 seq.]
  • Terminal Patients: Michigan’s Dignified Death Act authorizes a physician to communicate with the patient’s family members about the terminally ill patient’s treatment choices. [MCL 333.5651 seq.] This statute does not grant family members the authority to make decisions about end-of-life treatment. Rather, it simply requires physicians to inform terminally ill patients about their patient rights and treatment options, including the right to appoint a patient advocate. As such, this statute deals primarily with the timing of information that is communicated to the patient and the patient’s family members [MCL 333.5652(1) (e).] The apparent purpose behind the Dignified Death Act is to ensure that information about the patient’s terminal condition is passed along to those who probably know the patient’s wishes and to empower them with timely information about the patient’s treatment choices.

Durable Power of Attorney for Health Care: In the absence of a family consent law, it becomes obvious that every individual should adopt a durable power of attorney for health care. A durable power of attorney for health care designates a patient advocate who is authorized to make treatment decisions on a patient’s behalf. It is a part of the Estates and Protected Individual’s Code (EPIC). Multiple EPIC sections deal with the patient advocate’s: designation [MCL 700.5506]; acceptance [MCL 700.5507]; authority to act [MCL 700.5508]; authority, responsibilities and suspension [MCL 700.5509]; revocation [MCL 700.5510]; obligation to follow the patient’s expressed desires [MCL 700.5511]; and restrictions on their authority [MCL 700.5512.]

  • Part of a Medical Record: If an individual has signed a durable power of attorney for health care, they should promptly file a copy of it with their local hospital. The durable power of attorney, and the patient advocate designation and acceptance will then become part of the patient’s medical record, which is critically important if the patient is admitted to the hospital for an emergency and the medical providers need to make quick decisions with regard to the patient’s treatment options.

POLST: Some folks confuse a durable power of attorney for health care with a Physician’s Order for Life-Sustaining Treatment or POLST. A POLST is a physician’s order that is intended for a patient who is near death. An example would be a patient who has sustained heart failure which has advanced to the point that it is now life-threatening. Thus, a POLST in the patient’s possession tells EMS personnel and other health care providers whether, or not, to administer CPR. A POLST tells what care to give the patient, in contrast to an advance directive like a durable power of attorney for health care that authorizes the designated patient advocate to speak for the patient. A POLST also differs from a Do Not Resuscitate (DNR) form since a POLST can also address the implementation of life-sustaining measures, like CPR, intubation, antibiotics, and feeding tubes.

Michigan’s MI- POST: Michigan’s version of a POLST is called the MI-POST. [MCL 225.671 to MCL 335.5685.] A court-appointed guardian is authorized to sign a MI-POST on the ward’s behalf. [MCL 700.5314 (f).] These laws were effective on February 1, 2018. With regard to the MI-POST:

  • A MI-POST is a form which is printed on brightly colored paper so that it is easily noticed;
  • Copies of a completed MI-POST can be provided to others, but the original form is retained by the patient;
  • The MI-POST is signed by the patient (if able) and/or the guardian or patient advocate, and the physician;
  • If a change in the patient’s medical condition makes the medical orders in the MI-POST contrary to generally accepted health care and treatment standards, the patient’s attending physician may revoke the MI-POST; and
  • The MI-POST must be reviewed for changes every 12 months, either to be reaffirmed by the patient (or guardian or advocate) or revoked.

Conclusion: As indicated by the various Michigan statutes identified above, Michigan could use a family consent law to provide better guidance to health care providers when treating an incompetent patient who is unable to participate in their own health care decisions and who does not have an advance directive. While some hospitals have adopted policies to provide an informal priority of who can be consulted on behalf of an incompetent patient, not all hospitals have adopted such policies, and those that have created a family priority are not always consistent with one another. Consequently, depending on the hospital where the patient is admitted, there may be differing results on who is given information, or who possesses the authority to make treatment decisions. Added to this confusion in practice among hospitals are the existing Michigan statutes that can at times either be inconsistent or inapplicable (e.g. only indigent or terminally ill) to a patient’s circumstances. With all of this uncertainty, individuals need to be strongly encouraged to execute a durable power of attorney for health care or update a preexisting durable power of attorney for health care, in which several patient advocates, or order of priority, are identified to speak on the patient’s behalf.