The topics of Living Wills and Patient Advocacy have been much discussed on television and in the newspapers and magazines. Many people have questions about these topics in general. Therefore, we thought it would be helpful if this explanation was written in question and answer form.

An advance directive is a written document in which you can specify what type of medical care you want in the future should you lose the ability to make health care decisions, and in which you name someone to make the decisions for you when you cannot do so.

No. The decision to have an advance directive is purely voluntary. No family member, hospital, or insurance company can force you to have one, or dictate what the document should say if you decide to write one.

Yes. Two types are a durable power of attorney for health care (patient advocacy document) and a living will.

A durable power of attorney for health care, also known as a patient advocate document or a health care proxy, is a document in which you give another person the power to make medical treatment and related personal care decisions for you when you can't make those decisions yourself.

Yes, based on state law.

Any person who is of sound mind and is 18 years of age.

That person is called the "patient advocate."

The patient advocate can make decisions for you only when you are unable to participate in medical treatment decisions.

There might be a temporary loss of ability to make or communicate decisions if one were knocked unconscious in a car accident or had a stroke. There might be a long term or permanent loss through a degenerative condition such as Alzheimer's disease.

The doctor responsible for your care (your doctor) and one other doctor must agree in that determination and put that determination in writing.

You can give a patient advocate the power to make those personal care decisions you normally make for yourself. For example, you can give your patient advocate the power to consent to or refuse medical treatment for you, to contract for home health care or adult day care, arrange care in a nursing home or move you to a home for the aged.

Yes, but you must express in a clear and convincing manner that the patient advocate is authorized to make such decisions, and you must acknowledge these decisions could or would allow your death. You can limit this power to certain situations. Your attorney will discuss this with you.

Yes. If you wish to give your patient advocate power to have tube feeding withheld or withdrawn in the event you become terminally ill or permanently unconscious, you should state this in the document or in a living will (see later discussion on living wills as to the effectiveness of this provision if it is only in a living will).

Yes. You may wish to express your wishes concerning the type of care you want during terminal illness. You may also wish to express a desire not to be placed in a nursing home and a desire to die at home. Your patient advocate has a duty to try and follow your wishes.

It may be. Your wishes cannot be followed if no one is aware of them. It can also be a great burden on your patient advocate to make a decision for you without guidance. Your attorney should discuss with you the benefits of being specific and other desirable changes changes stemming from the Michigan Case In re Raymond.

Any person age 18 or older is eligible. Obviously you should choose someone you trust, to whom you can speak candidly, who can handle the responsibility, and who is willing to serve.

Yes, he or she must sign an acceptance. This does not have to be done at the same time as you sign the documents. Let your attorney know if your patient advocate will attend the meeting when you sign the documents. Your alternate patient advocate can also sign at that time or at a later date. If you are signing a Will at the same time and wish to keep the Will provisions private, your advocate can sign after you have privately signed your Will.

Yes it is advisable to have an alternate patient advocate. Your attorney will ask you to name one. The alternate can sign the required acceptance at a later time or at the same time.

Your choice of advocate is not limited to family members. You can appoint a friend or someone else. Even without an advocate you can still make a living will.

A living will is a written statement in which you inform doctors and family members what type of medical care you wish to receive should you become terminally ill or permanently unconscious, and unable to make or communicate decisions about your continued care.

Although over forty states have passed laws giving living wills statutory legal force Michigan has not done so. We believe your constitutional right to privacy will give some force to a living will. Doctors may feel morally bound to follow your wishes as expressed in a living will. Also Michigan's Patient Advocate statute does allow you to express in writing general guidelines for your advocate to follow. Michigan case law has supported the right to make a living will.

The focus of a durable power of attorney for health care is on who makes the decision; the focus of a living will is on what the decision is. Also, a living will is limited to care during terminal illness or permanent unconsciousness; a durable power of attorney for health care can be effective if you are temporarily unable to make your own medical decisions, even if you are not terminally ill or in a permanent coma.

You might express your wishes in general terms such as "Do whatever is necessary for my comfort, but nothing further." Or, "I authorize all measures be taken to prolong my life." You might express desires about the use of specific medical interventions, such as a respirator, cardiopulmonary resuscitation, surgery, and blood transfusions. You could authorize or not authorize experimental or extraordinary measures. You should express your desire concerning food and water administered through tubes, (artificial nutrition and hydration).

The declaration must be in writing, signed by you, witnessed by two adults, and notarized. There must be a written acceptance by the advocate that follows the specific statutory language. Hospital and medical personnel are generally excluded from being witnesses. Your attorney will arrange to have your document witnessed and notarized.

If there is a dispute later, witnesses can testify, that when you signed the document, you knew what you were doing and were not being pressured by anyone.

At HERRINTON, MENEZES & SMATHERS, P.C.you will often be given three or more signed originals of the document. You will keep one, and we recommend that you give to each advocate (regular and alternate) one original. Your attorney will hold one original for safekeeping. You will probably want to give a copy to your doctor. Discuss with your attorney if you want to give a copy to a hospital or nursing home.

Take your time. Consider who you might choose to be your advocate. You may name a family member with whom you feel comfortable discussing these issues. An advocate who lives near you may be preferable. Talk with your minister, priest, rabbi or other spiritual leader if you feel it would be helpful.

Since medical technology is constantly changing, and since there may be changes in your outlook, it would be wise to review an advance directive once a year. Additionally there may be a change in whom you wish as your advocate(s) (if your advocate dies or moves away, for example). Your attorney will draft language that indicates your advocate will follow your written directions but that you may also have given your advocate spoken directions about your course of treatment.

If you name a new advocate, or if you change your directions about medical care, you should retrieve all copies of your advance directive and destroy them. Distribute copies of the new document, and don't forget your doctor if he or she received the previous one.

You can revoke your advance directive by giving any indication that it is no longer what you want, by spoken word, or writing, or gestures. However, you may be left without an advocate.

On December 1, 1991, federal law required hospitals, nursing homes and other health care providers that receive federal funds to inform incoming patients of their right to consent to or refuse treatment, including their rights under state law to have advance directives. Simple advance directive forms may be provided by the hospital or nursing home upon check-in. The forms cannot be witnessed by anyone affiliated with the health provider. Your attorney will provide you with his or her best work product, after consultation with you, and provide you with proper execution and sufficient originals.

Yes.

Your patient advocate (assuming he or she has properly signed the acceptance) only has the power to make decisions for you if and when you become unable to participate in medical treatment decisions. Your living will provisions only take effect if you are both permanently unconscious or terminally ill.

Yes. Your nominated advocate will be given priority also as your nominated guardian should you ever require one.

The advance directive is designed to take care of medical decisions. The durable power of attorney is designed to take care of your financial and business affairs. The business power of attorney can be given immediate effect (if you tell your attorney this is what you want after discussing the pros and cons with him or her) while the advance directive is only effective as indicated in 33. above. You can also have the business power of attorney be effective when you can no longer take care of your business affairs. This is a lower threshold than to be unable to participate in medical decisions.

If the same person is named in both documents then some overlap of provisions is allowable, perhaps even desirable. If you name different persons then your attorney will ensure that the decision making power over your health and person rests with your patient advocate. Discuss this with your attorney.

The attorneys at HERRINTON, MENEZES & SMATHERS, P.C., hope that some of your questions have been answered. Please don't hesitate to ask any questions of us regarding your advance directive or any part of your estate plan.

A. Recognition of Mortality
B. Privacy
C. Regarding Care, Custody or Medical Treatment for Terminal Condition, Irreversible Coma, or Helpless Condition; Definitions of "Terminal Condition," "Irreversible Coma," "Helpless Condition," "Persistent Vegetative State," "Care, Custody and Medical Treatment," and "Helpless Condition."

II. DESIGNATION, RESPONSIBILITIES AND POWERS OF PATIENT ADVOCATE

A. When Powers Are To Be Exercised
B. Release of My Patient Advocate.
C. Definitions of "Patient Advocate" and "Guardian."
D. Powers of Patient Advocate

1. Power to act in any situation
2. Broad grant of powers
3. Records and Information
4. Decisions which would allow me to die
5. Other powers granted to my patient advocate

a.Sign documents
b. Consent non-consent
c. Care arrangements
d. Institute and discontinue treatment
e. Nourishment and hydration
f. Continuation of treatment

E. Revocation of acceptance
F. Copies of this instrument
G. Delegation of powers

PROTECTIONS TO CARE GIVERS

A. Release from Liability
B. Disagreements Among My Family Members About My Patient Advocate's Decisions
C. Differences of Opinion Among My Treating Physicians or Other Professionals About Diagnosis, Prognosis, or Ethics

NOMINATION AND DESIGNATION OF GUARDIAN

MISCELLANEOUS PROVISIONS

A. Governing Law
B. Revocation Of Patient Advocate Designation
C. Age of Patient Advocate
D. Multiple Original Counterparts
E. Captions
F. Specific Designations Of Intent
G. Anatomical Gifts

SIGNATURE OF PATIENT/PRINCIPAL

PATIENT ADVOCATE ACCEPTANCE

This is the end of the sample table of contents.

I hope that some of your questions have been answered. Please don't hesitate to ask any questions of us regarding your advance directive or any part of your estate plan.