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Instrument: Designation of Patient Advocate (DPA) or Advance Health Care Directive (AHCD)
What is it for?
An adult who is “of sound mind” at the time (the “patient”) may designate another adult as “patient advocate” to exercise powers concerning care, custody, and medical or mental health treatment decisions for the patient. Mich. Comp. Laws § 700.5506(1). This may include authority to make an anatomical gift of all or part of the individual’s body. Mich. Comp. Laws § 700.5507(1). The writing used to designate a patient advocate is also called an “advance health care directive.” Mich. Comp. Laws § 700.5506(1). It may also be called a “durable power of attorney for health care.”
What does it do?
A DPA authorizes a patient advocate to make medical or mental health treatment decisions for the patient when the patient is “unable to participate in decisions.” Mich. Comp. Laws § 700.5507(4)(1). Decisions by a patient advocate “who is reasonably believed to be acting within the authority granted by the designation is liable in the same manner and to the same extent as if the patient had made the decision on his or her own behalf.” Mich. Comp. Laws § 700.5511(2).
A patient advocate must follow “the desires, instructions, or guidelines given by the patient while the patient was able to participate in decisions regarding care, custody, medical treatment, or mental health treatment, as applicable, whether given orally or as written in the designation.” Mich. Comp. Laws § 700.5509(1)(b). For mental health decisions, a DPA must expressly authorize a patient advocate to consent to forced administration of medications or inpatient hospitalization. Mich. Comp. Laws § 700.5509(1)(h).
How does one make it?
A DPA must be in writing, signed, witnessed, dated, executed voluntarily, and, before a patient advocate exercises his or her authority, made part of the patient’s medical record. The DPA must also state that the patient advocate’s authority conferred is exercisable only when the patient is unable to participate in medical or mental health treatment decisions. Mich. Comp. Laws § 700.5506(3). The DPA must be witnessed by two adults who attest that the patient is “of sound mind and under no duress, fraud, or undue influence.” Mich. Comp. Laws § 700.5506(4). Before a patient advocate exercises his or her authority, the patient advocate must be given to the patient advocate and the patient advocate must also sign an acceptance. Mich. Comp. Laws § 700.5507(3).
Finally, the DPA must contain 10 specific statements described at Mich. Comp. Laws § 700.5507(4), including that the patient advocate may not exercise his or her authority if the patient is “able to participate in the decision”.
When does it come into effect?
A patient advocate’s authority may be exercised only when the patient “is unable to participate in medical treatment or, as applicable, mental health treatment decisions,” as determined by the patient’s attending physician and another physician or licensed psychologist in writing. Mich. Comp. Laws § 700.5508(1). A patient advocate may no longer exercise his or her authority “when the patient regains the ability to participate in decisions regarding medical treatment or mental health treatment.” Mich. Comp. Laws § 700.5509(2).
For mental health treatment DPAs, a patient advocate’s authority becomes exercisable “only if a physician and a mental health practitioner both certify, in writing and after examination of the patient, that the patient is unable to give informed consent to mental health treatment.” The patient may also specify who may make this determination. Mich. Comp. Laws § 700.5515(2).
How long does it last?
The DPA lasts until the patient dies or revokes the DPA, the patient advocate dies or resigns, by court order, or if a condition for revocation specified in the DPA itself is met. Mich. Comp. Laws § 700.5510(1).
How does one end it?
A patient may revoke his or her DPA at any time and in any manner sufficient to communicate an intent to revoke, whether in writing or orally. A patient may revoke the DPA even if the patient “is unable to participate in medical treatment decisions.” Mich. Comp. Laws § 700.5510(1)(d). A subsequent DPA also automatically revokes a prior DPA. Mich. Comp. Laws § 700.5510(1)(3).
A patient may choose to waive the right to revoke a DPA for mental health treatments in writing in the DPA itself. Mich. Comp. Laws § 700.5515(1).
What does an example look like?
Michigan does not have a statutory designation of patient advocate form. MidMichigan Health provides a sample here.
What else should one know?
Not applicable.
Last updated April 2021
General
Instrument: Durable Power of Attorney (DPOA)
What is it for?
The durable power of attorney (DPOA) allows an adult (the “principal”) to authorize an “attorney-in-fact” to make decisions about the property of the principal. The agent will be able to make decisions and act with respect to the principal’s property whether or not the principal has capacity to do so.
What does it do?
Generally, an attorney-in-fact has the authority to make decisions about the principal’s property “during a period of disability or incapacity of the principal” that will have the same effects, including both benefits and risks, for the principal and the principal’s successors as if the principal had made those decisions. Mich. Comp. Laws § 700.5502. Because the DPOA is “durable,” the attorney-in-fact’s decision-making authority is not affected by the principal’s incapacity.
An attorney-in-fact also has a fiduciary duty in exercising decision-making authority. This means the attorney-in-fact must take reasonable steps to follow the principal’s instructions, keep the principal informed of the attorney-in-fact’s actions at the principal’s request, and maintain records of the attorney-in-fact’s actions on behalf of the principal. Mich. Comp. Laws § 700.5501(3).
How does one make it?
The DPOA document must contain the words “This power of attorney is not affected by the principal’s subsequent disability or incapacity, or by the lapse of time”, or “This power of attorney is effective upon the disability or incapacity of the principal”, or similar words showing the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent disability or incapacity and, unless the power states a termination time, notwithstanding the lapse of time since the execution of the instrument. Mich. Comp. Laws § 700.5501(1).
The principal must voluntarily sign and date the DPOA or signed on the principal’s behalf by a notary public. The DPOA also must be signed by two witnesses or notarized. Mich. Comp. Laws § 700.5501(3). Presumably, the principal must also have “capacity” to execute the DPOA at the time the principal does so.
When does it come into effect?
Immediately, when the DPOA is executed, unless the DPOA itself states a future time or occurrence when the DPOA will enter into effect. Mich. Comp. Laws § 700.5501(1).
How long does it last?
The attorney-in-fact’s authority continues until the attorney-in-fact learns of the principal’s death. Mich. Comp. Laws § 700.5504. Presumably, the attorney-in-fact’s authority also ends when the attorney-in-fact learns of the principal’s revocation.
How does one end it?
Michigan’s DPOA statute does not clearly state how a principal can revoke the instrument. A DPOA is not ended by a guardianship appointment. Mich. Comp. Laws § 700.5503.
What does an example look like?
Michigan provides a DPOA form at Mich. Comp. Laws § 700.5501(4).
What else should one know?
Michigan’s DPOA is not based on the Uniform Power of Attorney Act.
Last updated April 2021