What a year this has been! Life can be challenging enough without adding a pandemic to the mix. The sense of relief as life begins to return to ‘normal’ feels so good after such a long, unexpected time. Not only is this a good time to reflect on all we have to be grateful for, but I have found that difficult times often bring the opportunity to learn new things. If nothing else, the past year has taught many lessons about expecting the unexpected and being prepared for anything, especially when it comes to medical issues. After hearing some harrowing stories and helping with some difficult situations this past year, I chose to write this month about a document we should all have on hand, a Medical Power of Attorney.

Imagine this. Your spouse has a serious infection and needs to be seen by a doctor immediately. He is confused and delirious. You take him to the emergency room, but you wait hours in the parking lot before he can be seen. Then once he can be seen, you can’t go in with him due to COVID protocols. The emotional stress of not being with a loved one who is seriously ill is bad enough, but what about the information the doctors need quickly to assess the situation? What about any important decisions that need to be made for treatment? If the patient is not coherent, finding the best possible treatment, as well as following the patient’s wishes, may be at risk.

Even without long lines in the ER due to COVID, think about similar but different situations — you bring a lifetime partner, friend or other family member to the emergency room, or you are travelling out of town and need an emergency doctor. Who can help if the patient is not able to make his or her own decisions?

A legal document called a Durable Power of Attorney for Health Care, sometimes referred to as a Medical Power of Attorney, names the person, called a Patient Advocate, who you would like to act on your behalf if you are not able to make your own medical decisions. Under COVID protocols at many hospitals, one person could be allowed in the ER with a patient unable to make his or her own medical decisions, and that person must be named as Patient Advocate in the Medical Power of Attorney document.

With credit to George Bearup, Greenleaf Trust’s Senior Trust Advisor, following are some points regarding the legal framework for this situation under Michigan law.

  • Determination of a patient’s capacity (which is different from competency) is a clinical determination, is specific to the treatment decision at hand, and is context-based. Practically speaking, this means a patient can have capacity to make some decisions, like determining who should act as his or her patient advocate, yet not possess sufficient capacity to make more complex decisions, like deciding for (or against) surgery. Making it even more challenging is that capacity can wax and wane. Patients are presumed to have capacity unless there is strong reason to believe that the patient lacks it. Assessments of capacity are instrumental to ensure that the patient receives the maximum benefit from treatments and also avoid the harms of medical treatments that are inconsistent with the patient’s values and goals.
  • The legal standard requires that the advocate make decisions on the basis of his or her knowledge of the patient’s specific wishes, goals, values and preferences. If the patient’s wishes or values are not known, advocates and healthcare professionals should only then make decisions in accordance with the patient’s best interests.
  • A Durable Power of Attorney for Healthcare is grounded in the principle of respect for the patient’s autonomy. It is viewed as enhancing autonomy by allowing a person to communicate in advance goals, values and preferences for future moments when the person may lack decision-making capacity.

The bottom line is two-pronged: choosing who will act as your patient advocate is a very important decision; and your wishes, goals and values should be well thought out and stated clearly in your document in advance of an emergency.

Who should you choose as your Patient Advocate? First and foremost, consider someone who shares your values, someone you trust to be a good decision-maker on your behalf and who can make “tough decisions.” Most choose a spouse or other family member. Does that make sense in your situation? Would a trusted friend be more objective? Is there someone who has been helping you with medical decisions already? It makes sense to name more than one person in succeeding order, in case one person is not willing or able to serve in the role. It also makes sense to ask in advance if someone is willing to serve as your Patient Advocate, and to talk through your desires with him or her.

Here is some food for thought as you work with your attorney to design or update your Medical Power of Attorney.

  • Consider including a statement of philosophy regarding your overall wishes, goals and values. Briefly explain your thoughts on the benefits of treatment versus medical burdens and risks, suffering, and/or improvement of your prognosis. Is your goal to prolong your life to some future time when a cure might be found, to limit your level of pain and suffering, or some option in between? Based on recent experience, you might consider some of the rapidly-developed treatments that were found for COVID-19 as you analyze your thoughts on this statement.
  • Consider the need for interpretation of your document by others. In my experience, this document can be a great comfort to your loved one (think adult child) who could be the person you have chosen to be your advocate and might be making an agonizing decision about “letting go” of a beloved parent. While you may include specific preferences for interventions or for forgoing interventions, including a brief description of your thoughts and values regarding those preferences can be very helpful to reassure your advocate, especially if unforeseen circumstances or treatments arise.
  • In your current document, perhaps written years ago, have you expressed a desire not to be put on a ventilator to prolong your life? Has your opinion changed since our recent experience with the treatment for COVID-19? From a broader and more important perspective, have you reviewed your existing document recently to determine if it still expresses your wishes and directions, especially as medical conditions and treatments progress and evolve? Have your relationships changed over time, and should you reconsider who you have named as Patient Advocate(s)? Like every document in your estate plan, this is one that should not be forgotten once it is initially signed, and it should be periodically reviewed.

Thanks again to George Bearup, the following is a list of some provisions that you may want to consider adding to your document. Not only is George a retired estate planning attorney, he also serves on a hospital’s bioethics resource committee which provides some very practical experience.

  • Can your advocate share medical and other information with third parties or other family members?
  • Can your advocate discharge your treating physician(s) to assure your physical, mental or emotional well-being?
  • Can your advocate demand your transfer to another medical facility?
  • Should your advocate be able to withdraw, modify or change consent to procedures that no longer are of benefit, or where the benefits of such procedures, tests or treatments are out-weighed by the burdens they impose?
  • Should your advocate be able to bring a lawsuit to enforce your right of privacy?
  • Can your advocate preclude family and friends from visiting or gaining access to you?
  • Can your advocate keep you in your own home as long it does not jeopardize your potential for recovery or impose an undue burden on your family members?
  • Can your advocate sign a release or indemnity to medical/hospital personnel who act in reliance on the advocate’s direction? For example, this might include releases with regard to refusal of treatment or leaving the hospital against medical advice.
  • Can your advocate arrange for pain-relieving drugs of any kind or other surgical or medical procedures that are calculated to relieve pain, including unconventional pain-relief therapies?
  • Should your advocate be able to make anatomical gifts?

In very challenging situations, should your advocate be given the specific right to seek a judgment from the court to interpret the validity of the Durable Power of Attorney for Healthcare, including the authority to seek an injunction to compel compliance with your advocate’s decisions?

Last, and certainly as important as all of the information above, do you know where your Medical Power of Attorney document is located? It is common for hospitals to ask for a copy when doing pre-surgical check-in, but what about when you have a medical emergency? Your Patient Advocate(s) should have a copy and you should keep a copy handy. One safe and secure way to keep it with you is to save it to your vault in your mywealth by Greenleaf Trust online client portal which can be accessed from your phone. I know a couple who keeps copies in a folder on their fridge that can be easily grabbed on the way out the door. They are definitely planners who are prepared!

No one I know likes thinking about these things, but in the year we have just experienced, being prepared for medical emergencies has brought some peace of mind to clients and their families, and great stress and added anxiety to some who were not as prepared. Unfortunately, ignoring the challenge does not make it go away. Please reach out to your client centric team if we can help you talk through any questions or concerns you may have on this topic.  We are here to serve.