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Advance Directives

Who will advocate for you when you cannot?

What are your life support wishes when you cannot speak?

Do you want a Probate Court to fill the black hole of decision making?


An Advance Directive speaks for you at a future time of incapacity in advance of serious illness, debilitating medical event or dementia when you are unable to speak for yourself. Without an Advance Directive, others will make treatment decisions for you, such as hospitals—decisions you might not agree with if you had the requisite capacity. And there will be no one who can pay your bills if you cannot sign the check.  


       With Advance Directives, you stay in charge—even when you cannot make decisions—by appointing the loved one you trust to advocate for you according to your written wishes expressed in a form in which you declare your life support preferences at end-of-life. My firm calls this form  Your Wishes Guide but it is typically called a Living Will

 

      Also, without Advance Directives in place, a black hole of decision-making is created. This gap must be filled by the local Probate Judge who will appoint a Guardian for medical treatment decisions and a Conservator for financial decisions and bill-paying. These court-appointed dictators are authorized to take all control from you. You lose all freedom. 


     True Story: My friend Sam lost his wife. He never went to a lawyer to prepare Powers of Attorney nor a Living Will. Then he had a major stroke that permanently paralyzed the right side of his brain and left him on a feeding tube and a vent for breathing. This is not what Sam wanted; but none of his 3 children had the power to intervene. So, after 6 months and two hearings, the probate court appointed one of his children to be a guardian and authorized her to end Sam’s life support. 


     There are six Advance Directives everyone should have in place before a health care crisis arises and you lose capacity:


1. The Michigan Living Will (an expression on life support)


     In a Michigan Living Will, you will state your wishes or preferences on life support issues at the end-of-life and other treatment decisions.


Under current court decisions in the Nancy Cruzan and Terry Schiavo cases, your life support preferences must be stated with specificity in writing. To help you state you wishes with certainty, my firm has created the Michigan Living Will for you to fill out.


2. Health Care Power of Attorney (who will act for you)


        Michigan statutes authorize the use of a Health Care Power of Attorney (HCPOA). In Michigan’s statute, the document is called a Patient Advocate Designation. In the document we prepare for clients, both names are used. 


      In a HCPOA, you will appoint a trusted family member or other trusted person as an “agent” also called a “patient advocate” to make your health care decisions--which could include the withdrawal or withholding of life support-- when you can no longer make decisions. 


       In Michigan, a patient advocate cannot act for you unless two physicians or one physician and one psychologist have examined you and declared in writing that you lack capacity to make or communicate medical decisions. Also, your patient advocate cannot act until she or he has signed an Acceptance Form in which the advocate agrees to implement your known wishes on treatment and life support. 


    Also, the document must include specified “durability” language. The word “durable” in the HCPOA means that the authorization to the patient advocate does not end upon your incapacity but rather continues after incapacity. 


        A problem with the recognition of HCPOAs is that each State has different requirements for HCPOAs and calls them different names. So, the question on interstate recognition arises if you travel to another state and you have a medical crisis there. 


        Let’s say you travel to Wisconsin where UW Madison hospital is or Minnesota where Mayo Clinic is or to Florida where your grandchildren live. Will your Michigan HCPOA be recognized? Our Firm has researched the laws of other states, and we have created a HCPOA, which satisfies the laws of 26 states, including WI, MN and FL and many more. Our multi-state form increases our clients’ peace of mind. 

3. Physician Orders for Scope of Treatment (POST)


        Michigan provides patients with two kinds of short-term Advance Directives on medical treatment: one is POST (Physician Orders for Scope of Treatment) and the other is a DNR order (Do-not-resuscitate order). I actually served on the committee which drafted the Michigan POST statute in 2017 and wrote the lead article on the topic in the State Bar Journal. 


        POST is a new form that is used to simplify the more lengthy and complicated Living Will forms that are attorney-drafted. Hospitals and physicians do not like attorney-drafted Living Wills and sometimes neglect to read or recognize them.


       POST, on the other hand, is more accepted by hospitals and physicians because it is only two pages, written in medical terms and is signed by a patient’s attending physician. The problem is that, as of March 2021, the Michigan Health Department still has not approved the actual text of the two-page POST form. So, we must wait awhile before POST is available. When it is, our Firm will email you the form. 



4.  HIPAA Authorizations


       A HIPAA authorization form is for information only; it does not provide for decision-making. In a HIPAA form, you will authorize certain trusted family members and other loved ones to get access to your private medical information.


      For example, assume you are in the hospital recovering from a car accident, and your spouse, partner, child or best friend calls to find out how you’re doing. Your HIPAA form fortunately names all of these loved ones to contact the hospital. Without the HIPAA form, they hospital could not even confirm that you are in the hospital. HIPAA is a federal form which is accepted in all states. Our Firm creates these forms for you.       


5.    Financial Durable Powers of Attorney (DPOAs)


        A Financial Durable Power of Attorney (DPOA) authorizes a trusted agent to pay your bills and handle the myriad financial decisions you need when you cannot take these actions yourself. You will name an alternate agent in case the first agent is not available. 


        Without a DPOA, the probate court will have to appoint someone to be your Conservator. Such court-supervision is not recommended. 

     

          A problem with DPOAs that are not drafted by an experienced Elder Law Attorney is that they may be defective since they will not include all the needed specific provisions. For example, a client of mine had gone to a previous inexperienced attorney who drafted a short form DPOA that did not include IRA provisions. When the client had a serious stroke and could not sign any documents, the agent could not withdraw the 

   Required Minimum Distributions from the client’s IRA, causing tax penalties. Our Firm’s DPOA contains great specificity and comprehensive provisions. 


6.   The Problem of Availability and Training the next-in-charge


   You can have the best documents, but they will not work unless 1) they are available to your trusted agents when the need arises and 2) your trusted agents have been trained on how to act. Our Firm offers training to you and your agents and the optional Aging Options storage portal that will assure availability for you and your agents.

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