DESIGNATING A PATIENT ADVOCATE FOR HEALTH CARE

This article reviews the essential requirements of the special law authorizing adults to name persons to be their patient advocates for health care decisions. 

Upon admission to a hospital, patients are asked whether they have signed a designation naming a person to be their patient advocate. This written designation will greatly assist the medical treatment team in providing certain medical care should the patient be unable to make medical decisions while being treated.

A designation of a patient advocate, that is, the naming of a patient advocate, for health care purposes is a written document that authorizes a person to exercise powers concerning care, custody, and medical treatment decisions for the patient. It becomes effective only when the patient is unable to participate in medical treatment decisions.  MCL 700.5506

By this document the patient advocate is authorized to exercise one or more powers concerning the patient’s care, custody, and medical treatment that the patient could have exercised on his or her own behalf. It can include a statement of the patient’s desires regarding care, custody, and medical treatment.

A patient must express in a clear and convincing manner any authority given to the patient advocate to withhold or withdraw treatment that would allow a patient to die. The patient must also acknowledge that such a decision could or would allow the patient’s death. MCL 700.5509

Usually this power of attorney for health care is very specific for various types of medical conditions of the patient. The more specific the better guide the patient advocate will have in making the decisions the patient would have wanted made had he or she been able to make them. It requires considerable thought and much care in making.

The Estates and Protected Individuals Code sets forth the requirements for a valid designation. The person making the designation is called the “patient” even though not then under medical treatment. The person named to exercise powers concerning care, custody, and medical treatment decisions for the patient is called a “patient advocate.”

A person must be at least 18 years of age and of sound mind at the time the designation is made. The patient advocate must be at least 18 years of age. 

The designation must be in writing, dated, executed voluntarily by the patient, and signed in the presence of and by two witnesses. The witnesses must not sign unless they believe the patient appears to be of sound mind and under no duress, fraud, or undue influence.

Many individuals cannot be a witness. These include the patient’s spouse, parent, child, grandchild, sibling, presumptive heir, known devisee at the time of the witnessing, and the patient advocate. Also, a witness cannot be the patient’s physician, an employee of a life or health insurance provider for the patient, or an employee of a health facility that is treating the patient, or of a home for the aged where the patient resides. MCL 700.5506

After the document is fully executed, a copy must be made a part of the patient’s medical record with the patient’s attending physician or physicians. It must also be given to the facility where the patient is located, if then so residing. Copies can be given to the hospital where the patient will likely be admitted in the future, to immediate family members, the patient advocate, and any others the patient so desires.

A patient advocate has no authority until the patient is unable to participate in the decision making process and until a special statement of acceptance of the designation is signed. There are 9 specific provisions in the acceptance that the advocate must agree to in signing. These are too detailed to include in this article. You can review them at MCL 700.5507. 

The patient can revoke the designation at any time and in any manner that is sufficient to communicate intent to revoke the powers. This can be in writing or verbally. The patient advocate can do the same. The probate court in a hearing on the issue can also revoke the designation.

The selection of the patient advocate is very important and must be made only after careful consideration. Often the spouse is the designated person. If the spouses divorce or the marriage is annulled after the document is signed, the designation is revoked unless a successor patient advocate was named in the document.

Many attorneys discuss the making of a designation of patient advocate when consulting with a client for estate planning. However, it is not necessary to be involved in estate planning to make the designation. Every adult should seriously consider making a designation regardless of present age.