Estate Strategies: 10th anniversary provides reminder to us all

Ten years have passed since the death of Terri Schiavo. While her case was tragic, her story serves as a lesson to us all about the importance of taking the time to prepare the proper legal documents that will help guide our families, friends, and courts in situations as heartbreaking as hers.

At age 26, Terri Schiavo suffered massive brain damage causing her to enter a persistent vegetative state. She relied on a feeding tube to survive. She lacked documents (i.e., a medical power of attorney, advance directive, living will, etc.) explaining her wishes regarding life-prolonging measures. Her husband was appointed guardian and came to find himself enmeshed in a prolonged legal battle with Terri’s parents over whether to discontinue her life support. The story set off a fiery national debate over many issues, including the role of government and the courts in making the ultimate decision – to live or die – for those who are unable to make it themselves.

At approximately the same time period as Terri Shiavo’s experience, a Michigan man and his wife found themselves in a similar position. Michael Martin and his wife were married in 1972. Fifteen years and three children later, Michael was catastrophically injured in an automobile accident. Like Terri, he remained alive because of life supportive measures administered 24-hours a day, including a feeding tube. Although medical testimony in the case demonstrated Michael was conscious, the clarity and meaningfulness of that consciousness was unclear, as Michael was unable to communicate in any significant way.

A time came when Michael’s wife made the heart-wrenching decision to petition the court on Michael’s behalf for the removal of the life supporting care. She explained to the court that Michael had repeatedly expressed to her and many others that he “would rather die than be dependent on people and machines.”

Ultimately, the Michigan Supreme Court determined that there was not clear and convincing proof that “Michael made a firm and deliberative decision, while competent, to decline medical treatment in these circumstances.” In other words, Michael’s wife, even though appointed by the court to act as his guardian, did not have the legal authority to take Michael off life support.

The solution in Michigan is a document naming a patient advocate or agent to act on your behalf when you are unable to participate in medical treatment decisions, including situations such as Terri Shiavo’s. The document is officially known as a “patient advocate designation” but also goes by names such as a “medical durable power of attorney” or a “durable power of attorney for health care.” The patient advocate designation should include a statement of your desires for your care and custody, and whether you want particular medical or mental health treatment, or both.

With some exceptions, your patient advocate can do whatever you could do with regard to your own health care; however, a patient advocate may only make end-of-life decisions to withdraw or withhold life support if your patient advocate designation indicates in a “clear and convincing manner” that your patient advocate has this authority, and that you understand that withdrawing or withholding life support could or would allow your death.

In Michigan, without such language in your designating document, your patient advocate would not be able to “pull the plug.” This would be the case even if you had previously verbalized, like Michael Martin allegedly did, to your patient advocate that you would not want to be on life support if you found yourself in a state similar to Terri or Michael.

Michigan does not give your patient advocate any power that you could not have exercised had you been able to make and communicate decisions on your own. In addition, Michigan law imposes a fiduciary duty on the patient advocate and a standard of care which requires the patient advocate to act in your best interest. What is in your “best interest” is presumed to be what you expressed in writing or otherwise when you were capable of doing so.
The law is such in Michigan that health care providers are legally bound to follow the patient advocate’s instructions if the patient advocate complies with the various sections of the durable power of attorney for health care statute. Health providers are simultaneously required to follow “sound medical or, if applicable, mental health treatment practice[s].”

Patient advocate designation forms are available at most local hospitals, but beware. Various requirements are required by statute to ensure your written preferences will be honored and enforced by a court, which emphasizes the importance of meeting with an attorney specializing in this area.
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For more information, contact Daniel Moraniec at 517-377-0879 or e-mail him at dmoraniec@fraserlawfirm.com.