Forward Thinking Family Law Since 1994

Power of Attorney for Health Care and Advance Directives

Advance Directives:  Durable Powers of Attorney for Health Care, Living Wills, and DNRs[1]

Each of us values the right to decide about ourselves, including the medical treatment we receive.  However, sometimes, due to accident, injury, or illness, we may not be able to participate in our own treatment decisions, either on a temporary or permanent basis.  If this happens, we can help ensure that our wishes are honored by establishing an advance directive.

What is an advance directive? An advance directive is a written legal document that allows you to specify who can make medical decisions for you if you cannot do so yourself and what type of medical care you would like. 

Three main types of advance directives are used in Michigan: 1) a Durable Power of Attorney for Health Care, 2) a living will, and 3) a do-not-resuscitate declaration.  Additionally, you can also make a declaration of anatomical gift to take effect when you die.

What is a Durable Power of Attorney for Health Care? A Durable Power of Attorney for Health Care (also known as a health care proxy or patient advocate designation) is a legally binding document where you appoint another person to make medical treatment and related personal care decisions for you when you can no longer make them for yourself. You can, in addition, give your patient advocate power to make decisions concerning mental health care you may need.  Finally, you can empower your patient advocate to donate specific organs or your entire body upon your death.

What if my religious beliefs prohibit an examination by a doctor?  We can customize your durable power of attorney document to state your religious beliefs, so the document will prohibit an examination by a doctor and designate how you want it determined that you cannot participate in health care decisions.

 What powers can I give a patient advocate?  You can give a patient advocate power to make any personal care decisions you normally make for yourself. For example, you can give yourpatient advocate power to consent to or refuse medical treatment such as extraordinary measures for you; arrange for mental health treatment, home health care or adult day care; or admit you to a hospital, nursing home or home for the aged.  You can also authorize your patient advocate to make a gift of your organs or body, to be effective upon your death.

What is a living will?  A living will is a written document in which you inform doctors, family members, and others what type of medical care you wish to receive should you become terminally ill or permanently unconscious.

When will a living will take effect?

A living will takes effect only after a doctor diagnoses you as terminally ill or permanently unconscious and determines you cannot make or communicate decisions about your care.

How is a living will different from a durable power of attorney for health care?

Although there can be overlap, the focus of a durable power is on who decides; the focus of a living will is on what the decision should be.  A living will is limited to care during terminal illness or permanent unconsciousness, while a patient advocate may also have authority in circumstances of temporary disability.

Are there advantages to each type? A durable power of attorney for health care may be more flexible because your patient advocate can respond to unexpected circumstances, but a living will might be honored without the presence of a third person making the actual decision.

Is a living will legally binding on health care providers? Although 47 states have statutes giving living wills legal force, Michigan has not passed such a law. However, based on a Michigan court decision, there is an argument living wills are binding in this state. No one, however, can provide absolute assurance your wishes will be honored.

 Can I have both a durable power of attorney for health care and a living will? Yes. Your patient advocate can read your living will as an expression of your wishes. The living will might also be valuable if your patient advocate were unavailable when a decision needs to be made.

What is a do-not-resuscitate (DNR) order? A do-not-resuscitate order is a written document in which you express your wish that if your breathing and heartbeat cease, you want no one to attempt to resuscitate you.

Who must sign a DNR order?

One DNR form provides spaces for your doctor to sign, for you to sign, and for two witnesses to sign.  There is an alternate form for individuals with religious beliefs against using doctors.

Can my patient advocate sign the form instead of me?

If your patient advocate has authority (for example, if provided for in a Durable Power of Attorney for Health Care), he or she can sign the form instead of you. Your doctor would also sign.

Who should receive a copy of your advance directive?

It is typically a good idea to give a copy of your advance directive to your Patient Advocate, any treating medical personnel, and anyone providing care for you.

[1] Excerpts from www.michigan.gov/documents/miseniors/Advance_Directives_230752_7.pdf