It’s Time to Revisit Health Care Directives

Take-Away: As the pandemic is on the front-page of every newspaper and the lead story on each evening television newscast, we all understand its risk to our health, and the reality that we may become victims of the virus and find ourselves hospitalized. Durable powers of attorney for health care, or advance directives, should be updated to reflect our medical treatment wishes. Each advance directive should be tailored to the patient’s wishes and ‘boilerplate’ durable powers of attorney for health care documents used as a last resort.

Background: A durable power of attorney for health care, or an advance directive, is a critically important document that carries out the patient’s expectations of autonomy. However, there are frequently ethical challenges in the interpretation of an advance directive, a chief limitation that they are often difficult to interpret and apply to particular medically exigent circumstances, especially when prognostic uncertainty exists. When conflict exists between a patient’s advance directive and the treatment requests being made by the patient advocate (and sometimes insisted upon by the patient advocate) it becomes increasingly important to discern the patient’s perspectives within the context of that patient’s life story. In short, an advance directive can have a pivotal impact on the ethics involved with attempting to ascertain the patient’s wishes when the patient is no longer able to participate in their own heath care decision-making.

Michigan Law: Michigan’s Estates and Protected Individuals Code (EPIC) contains extensive provisions with regard to the designation of a patient advocate under a durable power of attorney for health care.

Patient Advocate: A patient advocate is defined as a designated individual who is given powers with regard to another individual’s care, custody, and medical or mental health treatment or who is authorized to make an anatomical gift on behalf of another individual. [MCL 700.1106(l).]

Durable Power of Attorney for Health Care: Several EPIC sections apply to and govern the designation of a patient advocate and the role, responsibilities, and limitations imposed on a patient advocate. Those numerous specific sections will not be summarized in detail here, but they are only noted to provide a sense of just how regulated a patient advocate designation is under Michigan law, including who can witness the execution of a durable power of attorney for health care, and who can be appointed the patient advocate.

The requirements to qualify as a patient advocate, and the formal and rigid process for designating a patient advocate. The requirements for creating a valid patient advocate designation are more onerous than for any other document described in EPIC. [MCL 700.5506.]
The scope of authority granted to a patient advocate, e.g. the ability to designated anatomical gifts, and the patient advocate’s formal acceptance of that appointment and acknowledgement of express limitations on the advocate’s authority, e.g. no right to withdraw treatment from a patient who is pregnant. [MCL 700.5507.]
The determination of when a patient advocate possesses the authority to act, i.e. when the patient is no longer capable of participating in their own health care decisions, and how disputes are resolved when the question arises if the patient is unable to participate in medical or mental health treatment decisions. [MCL 700.5508.]
The authority, rights, responsibilities, and limitations of a patient advocate, including the suspension of the patient advocate’s authority to act when the patient regains the ability to participate in decisions with regard to their own medical and mental health treatment. [MCL 700.5509.]
The revocation of a patient advocate [MCL 700.5510.]
The binding effect of a designation of a patient advocate, the liability of health care professionals who rely upon a patient advocate’s directions, and specific situations when a health care provider is free to ignore the patient advocate’s [MCL 700.5511.]
Statutory restrictions on situations when a patient advocate cannot exercise authority, e.g. the patient advocate cannot condone or authorize suicide or homicide. [MCL 700.5512.]
A patient may waive the right to revoke a patient advocate [MCL 700.5515.]

Practical Considerations: A lot more discussion and reflection needs to take place before an individual signs their durable power of attorney for health care, or their advance directive. Often a durable power of attorney for health care is signed at the same time that other estate planning documents are executed, and as such, the advance directive is often viewed as an afterthought, and is executed perhaps without much, if any, thought by the patient who is handed one of multiple documents to be signed in the lawyer’s office.

As such, the durable power of attorney for health care may be simply a form document with standard ‘boilerplate’ provisions to accommodate Michigan’s high level of regulation to assure its ultimate validity, but which is not tailored to the individual patient’s values, goals and views of life and death. Some general observations follow that I have gleaned from sitting on Munson Medical Center’s Bioethics Resource Committee which regularly deals with problematic advance directives:

The advance directive is often silent on the expected role of the patient advocate as the ultimate designated decision-maker. Does the patient advocate have some leeway in their decision-making under the instrument, or is the patient’s expectation that their patient advocate will strictly interpret and follow the durable power of attorney for health care?
Health care providers struggle when an old and stale advance directive is presented by the patient advocate. Durable powers of attorney for health care should be periodically updated to reflect the patient’s most current wishes as well as reflect their most recent health conditions, treatments, and medications. While the patient might choose to ignore their responsibility to keep their advance directive current, the document should contain a statement that it should be followed, if it is the last advance directive on record, regardless of how stale it might otherwise appear to be.
Old advance directives, if replaced with a newer version, should be formally terminated or revoked, in writing, to eliminate any confusion that directions in the old version somehow retain some force or viability to determine the patient’s intent with regard to his or her medical treatment options.
The advance directive should do more than focus exclusively on limiting or discontinuing medical interventions. It should go beyond just when the patient is in a terminal, irreversible or permanently unconscious state. While the advance directive often addresses the patient’s preferences about medical interventions, such as surgery, ventilators, and antibiotics, it is frequently silent on the patient’s values or goals that underlie those medical treatment preferences. Those values or goals are more commonly found in a Physician Order for Life Sustaining Treatment, or POLST, but those same values, goals, or life-philosophy should also be embedded in the advance directive.
Why the advance directive was signed by the patient often is unstated. Was the durable power of attorney for health care signed as part of an estate planning ‘package’ when the patient’s Will or Trust was updated a few years ago? Or was the durable power of attorney for health care signed on the eve of a major surgery after the patient had ample opportunity to talk to their surgeon about outcomes, risks, and recovery responsibilities? Or, was the advance directive signed after the patient’s spouse of loved one became sick and suffered through an extensive hospitalization? Why the document was sign is important to patient advocates and clinicians who are called upon to interpret the document in the search for the patient’s preference in treatment options and when to conclude that the patient would choose to abandon treatment options that are essential futile.
Seldom will an advance directive address what are acceptable burdens that may result from some medical treatment decisions, such as the use of psychotropic medications, the use of restraints if a feeding tube is required, the possibility of a limb amputation, or the loss of sight. What will the patient be willing to accept in order to achieve a minimal acceptable quality of life? It would be helpful if the patient was able to communicate what is, or is not, an acceptable burden when the patient advocate must weigh and evaluate medical treatment options.
Healthcare professionals are not ethically obligated to provide treatments that are not clinically indicated for, or beneficial to, a patient. A frequent problem encountered when advance directives are in use is the emotional reaction by patient advocates when the medical personnel have concluded that the provision of further medical interventions will not bring about their intended outcomes, and that continued medical intervention may cause more harm than good, i.e. the futility of further medical treatment. The patient advocate will often state that the patient is ‘a fighter’ and that they want ‘everything done’ to give the patient a chance of a cure or recovery. It would be helpful if the advance directive was able to describe a ‘good death’ that might help the patient advocate to accept that the medical team is not ‘giving up’ on its patient, and the ‘big picture’ that merely prolonging the patient’s life by a few days does not actually improve the patient’s quality of life, and may in fact increase the risk of additional burdens the patient must endure.
Do not resuscitate (DNR) directions in an advance directive when a patient is in a coma are often added without much thought. More and more medical treatment options, including COVID-19, require induced-comas. A patient advocate should possess the authority to withdraw a DNR directive prior to many surgical procedures, or when a coma is intentionally induced as part of an agreed upon medical treatment plan.
A somewhat hot topic in Michigan law these days is the ability or right of a patient advocate to preclude access to the patient or visitors while the patient is in the hospital. The advance directive should also include the scope of the patient advocate’s authority on this topic, and might even provide some sort of expectation of mediation if a dispute arises over the patient advocate’s ability to prevent others from visiting the patient while bedbound. [See 2019 PA 170, amending MCL 700.5306, (adding section 6) which permits the appointment of a limited guardian to supervise access to an incapacitated individual when the person with the care and custody of the incapacitated person denies access to others.]
With stay-at-home orders and visitation restrictions now being the norm in our pandemic-controlled world, an advance directive should also anticipate the need for digital communication, the ability for the patient advocate to view the patient digitally, and the authority to sign all critical hospitalization and treatment documents electronically.

Conclusion: With COVID-19 controlling our daily lives, it is time to become proactive and update our advance directives to reflect our wishes and goals when we may no longer be in a position to participate in our own health care decision-making. The more thought and guidance reflected in that document, the less anxiety the patient advocate will experience in making decisions on the patient’s behalf, and the more the medical providers will be able to identify and implement the most effective medical treatment plans that the patient would have provided from himself or herself.