Michigan Healthcare Power of Attorney Requirements

The patient designates a primary patient advocate (full name and contact information) under MCL 700.5506(1)-(2); the designation may also name one or more successor patient advocates who serve if the first-named advocate is unable, unwilling, or no longer able to act (MCL 700.5507(3)).

The patient advocate may exercise care, custody, and medical or mental health treatment decisions the patient could have made personally, including consenting to, refusing, or arranging treatment and choosing a care facility (MCL 700.5506(1), 700.5507(1)).

The patient advocate may consent to forced medication or inpatient hospitalization for mental health treatment, and a mental health professional generally must follow the patient's expressed wishes, but only if the patient stated in a clear and convincing manner that the advocate is authorized to make that decision (MCL 700.5509(1)(h), 700.5511(4)); the determination that the patient cannot give informed consent requires both a physician and a mental health practitioner (MCL 700.5515(2)).

The patient advocate may make a decision to withhold or withdraw treatment that would allow the patient to die only if the patient has expressed, in a clear and convincing manner in the document, that the advocate is authorized to make that decision and that the patient acknowledges it could or would allow their death (MCL 700.5509(1)(e)).

Federal HIPAA regulations govern how the patient advocate can be authorized to access the patient's protected health information once the document is in effect.

A patient advocate designation may include the authority for the patient advocate to make an anatomical gift of all or part of the patient's body under the state's Anatomical Gift Law; this authority may include resolving a conflict between the advance directive's terms and steps needed to keep the gift medically suitable, and it remains exercisable after the patient's death (MCL 700.5506(1), 700.5507(1)).

The patient advocate's authority to make medical treatment decisions is exercisable only once the patient's attending physician and another physician or licensed psychologist examine the patient and jointly determine, in writing filed in the patient's medical record, that the patient is unable to participate in medical treatment decisions, reviewed at least annually. Authority is automatically suspended if the patient regains that ability and resumes if incapacity recurs (MCL 700.5508(1), 700.5509(2)).

The patient may revoke the designation at any time and in any manner sufficient to communicate an intent to revoke, regardless of the patient's mental state or competency (MCL 700.5510(1)(d)); revocation is not conditioned on the patient having capacity. If the revocation is oral, a witness must document it in writing and notify the patient advocate if possible.

The document must be signed in the presence of and signed by two witnesses. Unlike some states, Michigan requires both witnesses, not just one, to meet the full disqualification list: neither may be the patient's spouse, parent, child, grandchild, sibling, presumptive heir, known devisee, physician, or patient advocate, or an employee of the patient's life or health insurer, treating health facility, home for the aged, or community mental health program or hospital (MCL 700.5506(4)).

Before acting, a proposed or successor patient advocate must sign a written acceptance of the designation. The acceptance must include statements that the designation is not effective until the patient is unable to participate in decisions, that the advocate cannot exceed powers the patient could exercise personally, that the designation cannot authorize withholding life-sustaining treatment from a pregnant patient resulting in death, that life-ending decisions require the patient's clear and convincing authorization, that the advocate receives no compensation beyond expense reimbursement, and that the advocate must act as a fiduciary in the patient's best interest (MCL 700.5507(4)-(5)).

Michigan law does not allow a patient advocate designation to be used to make a medical treatment decision to withhold or withdraw treatment from a pregnant patient that would result in the pregnant patient's death (MCL 700.5509(1)(d)). This is a mandatory statutory restriction that cannot be waived or overridden by the document.

Facilities that participate in Medicare and Medicaid must inform patients of their rights under state law to make advance directives, including a Patient Advocate Designation.

If a probate court must later appoint a guardian for the patient, a person named as the patient's patient advocate is given statutory priority consideration for guardian appointment, ranked below only a previously serving guardian and a person the individual personally chooses (MCL 700.5313(2)(b)-(d)).

Under federal regulations (42 CFR 482.13(h)), hospitals must honor a patient's visitation preferences. When a patient is incapacitated and a Michigan patient advocate is exercising the patient's care and custody decisions under MCL 700.5506(1), the advocate is the natural party to exercise this right on the patient's behalf.

If a dispute arises over whether a patient advocate is acting consistent with the patient's best interests or is complying with MCL 700.5506 to 700.5515, an interested party may petition the probate court in the county where the patient resides or is located to resolve the dispute or remove the advocate (MCL 700.5511(5)); a related, separate procedure resolves disputes over whether the patient is even unable to participate in decisions in the first place (MCL 700.5508(2)).

A person or provider who relies on a decision by a patient advocate is generally protected from liability (MCL 700.5511(2)). a person providing, performing, withholding, or withdrawing care as a result of a decision by someone reasonably believed to be the patient's patient advocate acting within their authority is treated as if the patient made the decision personally (MCL 700.5511(2)), and providers are bound by the advocate's instructions only if the advocate has complied with MCL 700.5506 to 700.5515 (MCL 700.5511(3)).