Who Will Make Medical Decisions for Me if I Can’t?

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Many of the people we meet are under the common misconception that if they have a will or a trust, then they have a “complete” estate plan. People are surprised to learn that wills or trusts make no provision for who will care for their “physical” well-being if they become disabled and are unable to care for themselves. They are also surprised to hear that if they have not planned ahead, then the probate court will decide who will make these decisions for them. Unfortunately, this is a lesson often learned by family members after a person becomes disabled. The good news is that this can all be avoided with some simple planning ahead of time.

Medical Power of Attorney. According to Michigan law, you can designate a person, called a patient advocate, to make medical treatment decisions for you if you are no longer able. The document used to make this desigation is often referred to as a medical power of attorney. This medical power of attorney describes the circumstances under which the patient advocate has the authority to act, the powers given to the patient advocate, and gives directives regarding medical care and possible withdrawal of life support. To be valid the medical power of attorney must be in writing, witnessed, dated and voluntarily signed by an individual of sound mind. Before appointing someone, you should discuss with them your wishes and make sure they are willing to carry them out. The patient advocate should then sign an acceptance to act. Finally, The document should be made a part of your medical records. Without a medical power of attorney the court will decide who will be appointed and what action they will be able to take.

Withdrawal of Life Support. A medical power of attorney allows you to direct the type of medical treatment you will receive, and may describe circumstances under which you would want to refuse or withdraw aggressive or heroic medical treatment. If this is not done in writing ahead of time, then you will leave those decisions to the probate court.

A “Living Will” Probably Isn’t Enough. Many people mistakenly believe that a “living will” is the proper document through which to grant a medical power of attorney. A “living will” is not a will but is instead a statement that tells a physician to withdrawal life support in the face of certain death. Some attorneys still utilized “living wills” instead of medical powers of attorney. The effectiveness of living wills in Michigan is questionable because of the enactment of the Durable Power of Attorney for Health Care Statute in 1990. To be absolutely certain your wishes are followed, you should execute a medical power of attorney that complies with the formalities of the statute. Doing anything less could mean leaving your medical decisions in the hands of the probate court.

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