A new guardian power
By Alan Polack
Back in the day, life was nasty, brutal and short. Over time, medicine’s ability to prolong life has dramatically improved until we are at the point where we are actually concerned about termination of life.
Termination of life has raised many legal, moral and ethical issues.
The law has struggled to resolve those issues.
The US Supreme Court addressed these issues in Cruzan v Director, Missouri Department of Health, 497 US 261 (1990).
In that case the court decided the constitutionality of a state statute requiring clear and convincing evidence of a formerly competent patient’s wishes to terminate life sustaining medical treatment.
The Cruzan holding required a surrogate of a formerly competent patient to produce clear and convincing evidence of the patient’s wishes, expressed while competent, to refuse life-sustaining treatment or to have such treatment withdrawn.
Later, in 1995, the Michigan Supreme Court decided Martin v Martin, 450 Mich 204, 538 NW2d 399 (1995) which imposed the same evidentiary requirement as Cruzan.
Almost immediately after Cruzan Congress enacted the Patient Self-Determination Act which required all institutional providers to Medicare and Medicaid beneficiaries to inform patients, on admission, of their rights under state law with regard to the refusal of life saving treatment and the execution of advanced directives.
As a direct result of the federal legislation, Michigan enacted the Patient Advocate Designation Act of 1990 as part of the revised Probate Code and now as part of the Estate and Protected Individuals Code (EPIC).
The act did not authorize living wills as free standing documents.
The act did allow patients to give patient advocates living will type instructions.
Since 1990, the Patient Advocate Designation (PAD) (also known as a medical power of attorney) has become a standard part of elder law practice.
There are specific requirements in EPIC regarding the contents and execution of PADs. The person executing the document must be of sound mind and under no duress, fraud or undue influence.
The PAD should be made part of the client’s medical record, i.e., giving a copy to the client’s treating physician or with a hospital or nursing home where the patient is receiving treatment.
Another legislative approach to end-of-life medical treatment decision making is the Michigan Dignified Death Act (MDDA), MCL 333.5651 et seq enacted in 1996.
Under the MDDA, the physician treating a patient with an advanced illness must orally inform the patient, the patient’s surrogate or patient advocate about recommended treatment and alternatives to such treatment and advantages, disadvantages and risks of recommended treatment and of each alternative medical treatment.
The act includes a legal guardian of the patient as a surrogate.
The physician must also inform the patient, patient surrogate or patient advocate that the patient has a right to make “an informed decision regarding the receiving, continuing, discontinuing and refusing medical treatment for the patient’s reduced life expectancy due to advanced illness.”
The Michigan Department of Community Health has formulated a written summary which covers these disclosures. So under the MDDA, the guardian of an incapacitated adult does have the right to discontinue or refuse medical treatment or the patient’s reduced life expectancy due to advanced illness, i.e., terminal illness.
Another type of advanced directive has been around since 1966. It is the Michigan Do Not Resuscitate Procedure Act (DNRPA).
The act specifically applies to emergency care outside the hospital.
It basically permits health care professionals to not resuscitate the person who executed the DNR order if it comes to the attention of the professional.
Two practical difficulties with the act has always been that it only applied to outpatient situations and the orders could only be initiated by the patient or the patient advocate pursuant to the PAD Act.
In other words, if the patient had no advance directive but did have a guardian, the guardian could not sign a DNR order and make it part of the patient’s medical record.
These are difficulties that have now been addressed by the legislature in PA 155 of 2013, PA 156 of 2013 and PA 157 of 2013, all effective on February 3, 2014.
PA 155 amends the Michigan Health Code.
It specifies that a DNR order is a document which provides that if an individual suffers cessation of both spontaneous respiration and circulation in a setting outside of a hospital, resuscitation will not be initiated.
It also clearly states that a guardian with the power to execute a DNR order under Section 5314 of The Estates and Protected Individual’s Code (EPIC), as amended by PA 157, may execute a DNR order to comply with said section.
It also mandates that the DNR be in the form attached to this article. As you can see the new form includes a section for a guardian consent.
Public Act 157 of 2013 amends several sections of EPIC. The most important amendment changes Section 5314 by adding new language authorizing a guardian to execute a DNR order.
The new language will be found at 5314(c) and (d)(i)(ii) and (e)(i)(ii). Section (d) requires the guardian to consult with the ward, if possible, and with the ward’s attending physician prior to executing a DNR order.
Section (e) requires the guardian to reaffirm the order on an annual basis by again consulting with the ward, if possible, and the ward’s attending physician. Remember that the DNR order must be honored in any setting outside a hospital.
Finally, Public Act 157 also amends Section 5306 of EPIC imposing additional duties on the guardian ad litem.
The GAL will now be required to attempt to inform the proposed ward that he or she has a right to include a limitation on the proposed guardian’s power to execute a DNR order and whether the proposed ward has any objections to the guardian executing a DNR order.
The GAL has to inform the probate court whether or not the individual objects to having a DNR order executed on his or her behalf. I am sure SCAO will produce new forms to cover these additional duties.
Will this new legislation put to rest the issues surrounding end of life medical treatment decision making?
For example, what if the ward (incapacitated by definition) and/or the nursing home physician (who is he or she?) doesn’t like DNR orders? Then what?
Would the guardian be back to square one proving the incapacitated individual’s intent to withdraw or terminate life support by “clear and convincing evidence”?
———————————
Alan F. Polack specializes in elder and probate law and practices out of Shelby Township. He is a former president of the Macomb County Probate Bar Association.
