Institute of Continuing Legal Education (ICLE)



STATE OF MICHIGAN DESIGNATION OF PATIENT ADVOCATE DURABLE POWER OF ATTORNEY FOR HEALTH CARE AND FOR CARE, CUSTODY AND MEDICAL TREATMENT DECISIONS OF «CLIENTNAME»

1. Date:

«SignDate»

2. Principal:

«ClientName», «ClientAddress», «City», «State»«PostalCode», «Phone»

3. Patient Advocate:

«Primary_Agent», «Primary_Agent_Address», «Primary_Agent_Phone»

4. Alternate Patient Advocate*s. In the event of the death, resignation, incapacity, or unavailability of the primary named Patient Advocate, or if the Patient Advocate declines in writing to, I appoint as successor Patient Advocate the following person*s, serving in the order in which their names appear:

• «Backup_1», of «Backup_1_Address», «Backup_1_phone»

• «Backup2», of «Backup2Address», «Phone1»

• «Backup3», of «Backup3Address», «Phone2»

5. Designation of Patient Advocate.

My Patient Advocate shall make any and all health care decisions for me, except to the extent I state otherwise in this document.

6. Disability of Principal.

This Durable Power of Attorney for Health Care for Care, Custody and Medical Treatment Decisions shall become effective only upon my disability as determined by my attending physician and another physician or licensed psychologist and shall not be affected by my disability or incompetence. The determination of when I am unable to participate in mental health treatment decisions shall be made by a physician and a mental health practitioner as defined the applicable state statute.

7. Powers Granted My Patient Advocate.

My Patient Advocate shall have the power to make each judgment necessary for my care, custody and medical treatment. Additionally, my Patient Advocate shall have the power to make each judgment necessary for the adequate care and custody of my person. These powers will include (but are not limited to):

a. Employ and discharge physicians, dentists, nurses, therapists and any other health care providers, and to pay them reasonable compensation.

b. Give an informed consent or an informed refusal on my behalf for any medical treatment, without limitation.

c. Give an informed consent or an informed refusal on my behalf for any diagnostic, surgical or therapeutic procedure.

d. Give an informed consent or an informed refusal on my behalf for any other treatment of any type or nature, including life-sustaining treatments. “Life-sustaining treatments” means the use of any medical device or procedure, drugs, surgery, or therapy that uses mechanical or artificial means to sustain, restore or supplant a vital body function and thereby increases the expected life span of a patient.

e. Execute waivers, medical authorizations and such other approval as health care providers or others may request to permit or authorize care which I may need, or to end care that I am receiving.

f. Admit or withdraw me from any hospital, medical center, nursing home or mental institution.

g. Waive any doctor/patient privilege.

h. Sign a Do Not Resuscitate Order in accordance with the Michigan Do Not Resuscitate Procedures Act, MCL 333.1051 et seq.

i. Admit or withdraw me from hospice care.

j. I request and empower my Agent to appeal inappropriate discharges and denials of coverage necessary for my recovery and to take steps to ensure continued provision of skilled care, including directing continued provision of such care, even if it results in private payment pending determination by Medicare, health insurance or relevant form of health coverage.

8. OPTIONAL: MENTAL HEALTH PROVISIONS

Mental Health Treatment Provisions.

In this document, the term “medical treatment” includes “mental health treatment.”

a. I authorize my Patient Advocate to obtain all information about my mental health treatment and I consent to the releases of such information to my Patient Advocate.

b. I authorize my Patient Advocate to make a petition for an Assisted Outpatient Treatment (AOT) as an alternative to hospitalization.

c. I authorize my Patient Advocate to consent to forced inpatient hospitalization for mental health treatment.

d. I authorize my Patient Advocate to consent to the administration of medication for mental health treatment.

e. I waive my right to revoke this designation of my Patient Advocate for up to thirty days as permitted by Michigan statute.

9. HIPAA Release Authority.

I intend for my agent to be treated as I would be with respect to my rights regarding the use and disclosure of my individually identifiable health information or other medical records. This release authority applies to any information governed by the Health Insurance Portability and Accountability Act of 1996 (aka HIPAA), 42 USC 1320d and 45 CFR Parts 160-164. I authorize any physician, healthcare professional, dentist, health plan, hospital, clinic, laboratory, pharmacy or other covered health care provider, any insurance company and the Medical Information Bureau, Inc. or other health care clearinghouse that has provided treatment of services to me or that has paid for or is seeking payment from me for such services to give, disclose and release to my agent, without restriction all of my individually identifiable health information and medical records regarding any past, present or future medical or mental health condition, and to include all information relating to the diagnosis and treatment.

I understand that access to Protected Health Information (“PHI”) about me must be obtained in accordance with the Final Privacy Regulations issued pursuant to the Health Insurance Portability and Accountability Act (“HIPAA Final Rules”). Accordingly, I instruct anyone reading this Designation of Patient Advocate as follows:

Regardless of whether a determination has been made about whether I am able to participate in medical treatment decision-making, I want any HIPAA Covered Entity reading this document to understand that by designating a Patient Advocate, I have identified the person designated as a person involved with my care within the meaning of 45 CFR 164.510(b)(i) of the HIPAA Final Rules. I also want any HIPAA Covered Entity reading this Designation of Patient Advocate to understand that I want you to use your professional judgment as appropriate to infer that I would not object to any disclosure of PHI about me to the person named as my Patient Advocate, if I am present in circumstances described in 45 CFR 164.51(b)(2)(iii). If I am not present or it is not practical to give me an opportunity to agree or object to the use or disclosure as described in 45 CFR 164.51(b)(3), then I authorize any Covered Entity reading this document to use your professional judgment to determine that it is in my best interests to disclose PHI that is directly relevant to the authority of my Patient Advocate to the person named as my Patient Advocate, because I intend for that person to become my Patient Advocate and personal representative if and when this Patient Advocate Designation becomes effective, and to have access to PHI about me before that time.

10. Statement of Philosophy.

I enjoy and value my life. I do not want my life to end, but I also recognize and accept the fact of my own mortality. I do not seek to die, but I do not want my life to be prolonged or my death to be postponed in all circumstances. Accordingly, I have caused this document to be prepared to express my wishes and instructions concerning my medical treatment.

I believe that I have a right to self-determination and a constitutional right of privacy, and a constitutional right to liberty, all of which give me the power to decide what should and what should not be done to my body. I understand that these rights are not absolute, and that their exercise may be limited by the state in certain circumstances. I do not want the exercise of my rights ever to be frustrated or limited because of any uncertainty about my wishes or about what actions I believe will be in my best interests. I urge my family, my friends, my treating physicians, and any hospital, nursing home, hospice or other health care facility involved in my care as a patient, to accept and rely upon this document as clear and convincing evidence of how I want my rights of self-determination and privacy to be exercised in making medical treatment decisions about me, should I be unable to express my desires myself because of illness, disease, infirmity, injury or any other cause.

11. Instructions & Desires Regarding Medical Treatment.

I do not wish to receive or to continue to receive medical treatment which will only postpone the moment of my death from an incurable and terminal condition or which will prolong a irreversible loss of awareness, irreversible coma or persistent vegetative state. I instruct all persons and entities involved with my medical care to follow the decision of my Patient Advocate not to initiate medical treatment in such circumstances or not to continue such treatment if it has already been begun.

OPTION 1: INSTRUCTIONS FROM GERIATRIC CARE MANAGER

I direct my Patient Advocate seek instructions from ________________, my geriatric care manager, or equivalent person, as selected by my Patient Advocate, about my preferences on placement, care, psycho-social functioning, safety and visitors in the event I am unable to care for myself or function independently. I intend for an evaluation of my condition and the appropriateness of my placement at least every six months or sooner, depending on any changes identified by my Patient Advocate.

OPTION 2: FINANCIAL CONSIDERATIONS

Before undergoing expensive treatments or care which would merely prolong my life and would not cure me of chronic conditions such as diabetes, multiple strokes, etc., I direct my Agent consider the impact that continuing treatments would have on my financial resources, especially those assets I have saved for any dependent persons.

12. Definition of Terms.

CONSIDER TIME PERIOD FOR EXISTENCE OF CONDITION

“Terminal condition” means in the case of acute illness, a condition which is reasonably expected to result in my death within six (6) months whether I receive medical treatment or not; and in the case of chronic illness, it means where there is a limited life expectancy due to advanced illness.

“Irreversible loss of awareness” means a loss of consciousness or other condition, which has persisted for at least **one week and from which there is no reasonable likelihood that I will recover to a cognitive (capable of understanding) or sapient (capable of reasoning) state.

“Irreversible coma” means an unarousable state of unconsciousness which has persisted for at least **one week and in which there is no reasonable likelihood that I will recover responsiveness to external stimuli.

“Persistent vegetative state” means the absence of any evidence of a functioning mind which is either receiving or projecting information (whether or not there are periods of wakefulness) which has persisted for at least **one week and in which there is no reasonable likelihood that I will recover conscious awareness.

13. Termination of Life Support.

If at any time I should have an incurable injury, disease or illness certified to be a terminal condition, irreversible loss of awareness, irreversible coma or persistent vegetative state by two physicians who have personally examined me, one of whom shall be my attending physician, I direct and give my Patient Advocate the power to direct that life-sustaining procedures be withheld or withdrawn, and that I be permitted to die naturally with only the administration of medication, the administration of food and water, as deemed necessary by my Patient Advocate, as limited by the above definition, instruction, and statement of philosophy sections, as well as a values history clarification form, and the performance of any medical procedure that is necessary to provide comfort or alleviate pain.

OPTION 1. (ALLOWING REFUSAL OR WITHDRAWAL OF ARTIFICIAL NUTRITION AND HYDRATION):

My Patient Advocate may decide if artificially provided fluids and nutrition, such as by feeding tube or intravenous infusion, shall be instituted, or if previously instituted, that they be discontinued, even if other life-sustaining treatment is withheld or withdrawn.

OPTION 2. (REQUIRING ARTIFICIAL NUTRITION AND HYDRATION IF MEDICALLY APPROPRIATE):

My Patient Advocate shall ensure provision of manual feeding used to provide me with nourishment and hydration, and if this is not medically possible, then institute artificially provided fluids and nutrition, such as by feeding tube or intravenous infusion, if medically appropriate. I do not wish to have the withholding or withdrawal of artificially provided fluids and nutrition unless medically inappropriate.

To consent to and arrange for the administration of pain-relieving drugs of any kind or surgical or medical procedures calculated to relieve my pain, including unconventional pain-relief therapies, that my Agent believes may be helpful to me.

In the absence of my ability to give directions regarding the use of life sustaining procedures, it is my intention that this declaration shall be honored by my family and physician as the final expression of my right to control my medical care and treatment.

I also instruct my Patient Advocate to attempt to discuss the specifics of any proposed medical treatment with me, if I am able to take part in such discussion; however, I leave it to my Patient Advocate to decide what, if any, consideration to give to anything I am able to communicate.

If this Durable Power of Attorney for Health Care for Care, Custody and Medical Treatment Decisions does not contemplate the particular treatment decision with which my Patient Advocate is faced, then I direct my Patient Advocate to use my Patient Advocate’s best judgment about what my wishes and instructions would be, given the desires and instructions I have already expressed herein and any other treatment choices I may have made or preferences I may have stated while competent which are not reflected in this document, and to act accordingly to give, withhold, or withdraw consent to medical treatment.

OPTIONAL: CONSULTATION WITH FAMILY

14. Consultation.

I would prefer that, if circumstances allow, my Patient Advocate discuss any decision to withhold or terminate life support with my ****[children/spouse/siblings]. However, this expression is precatory and my Patient Advocate shall be my sole representative.

15. Anatomical Gift.

As authorized by the Michigan Uniform Anatomical Gift act (M.C.L. Section 333.10101, et al.), and in the hope that I may help others, I hereby make an anatomical gift of any of the useable and needed organs and parts of my body for the purposes of transplantation, **therapy, medical research or education, without limitation. I make this gift without specifying a donee. I also authorize my Patient Advocate, pursuant to MCL Section 700.5506(1), et seq., to take whatever action is needed at or near my death to coordinate and facilitate the timely execution of my anatomical gift upon my death.

16. General Statement Regarding Authority Granted.

Subject to any limitations in this document, I hereby grant to my Patient Advocate full power and authority to make health care decisions for me to the same extent that I could make such decisions for myself if I had the capacity to do so. In exercising this authority, my Patient Advocate shall make health care decisions that are consistent with my desires as stated in this document or otherwise made known to my Patient Advocate, including, but not limited to, my desires concerning obtaining or refusing or withdrawing life-prolonging care, treatment, services and procedures. However, the powers described in MCL 700.5506‒.5512 shall be effective only when I am unable to participate in medical treatment decisions. The physician who normally provides me with medical care shall determine when I am unable to participate in care, custody, and medical treatment decisions. Another physician or licensed psychologist shall agree with my physician’s determination before it is effective.

17. Liability to Health Care Providers.

My agent shall not be liable for the costs of treatment pursuant to its authorization, based solely on that authorization.

18. Conflict of Law.

I understand that the powers granted my Patient Advocate are extremely broad and may or may not be authorized or allowed by the law of any particular state at the time of the exercise of the power. Nonetheless, I have intentionally delegated the foregoing powers to my Patient Advocate with the hope that any powers not presently authorized or allowed by any particular state law will be allowed or authorized at the time of exercise of the power. In the event the power is not authorized or allowed by the law of any particular state at the time of my Patient Advocate’s exercise of such power, I specifically authorize my Patient Advocate to take whatever action is necessary so that the law of a jurisdiction that recognizes such a power may apply to authorize the exercise of such power. I further direct that my Patient Advocate be free from any liability for taking such action and release my Patient Advocate from any such liability.

19. Revocation of Prior Powers.

I revoke any prior Durable Power of Attorney for Health Care for Care, Custody and Medical Treatment Decisions.

20. Appointment of Guardian.

Pursuant to MCL 700.5313 and 700.5503, if it is determined by a probate court having jurisdiction over me that I am a legally incapacitated individual in need of a guardian, I hereby specifically designate as my guardian my Patient Advocate in the order of priority designated in this Patient Advocate Designation.

21. Governing Law.

This instrument is to be construed and interpreted as a Durable Power of Attorney for Health Care and for Care, Custody and Medical Treatment Decisions. The enumeration of specific powers herein is not intended to, nor does it, limit or restrict the general powers herein granted to my Patient Advocate. This instrument is executed and delivered in the state of Michigan, and the laws of the state of Michigan shall govern all questions as to the validity of this power and the construction of its provisions.

In witness whereof, I have hereunto signed my name to this Durable Power of Attorney for Health Care and for Care, Custody and Medical Treatment Decisions on this «SignDate».

| | |/s/______________________________ |

| | |[Typed name] |

[SIGNATURE DECLARATION FOR A MALE]

I declare under penalty of perjury that «ClientName» has identified himself to me, that he signed or acknowledged this Durable Power of Attorney for Health Care and for Care, Custody and Medical Treatment Decisions in my presence, that I believe he is of sound mind, that he has affirmed that he is aware of the nature of the document and is signing it voluntarily and free from duress, that he requested that I serve as witness to his execution of this document, that I am not the person appointed as Patient Advocate by this document, and that I am not a provider of health or residential care, an employee of a provider of health or residential care, the operator of a community care facility, or an employee of an operator of a health care facility.

I declare that I am not related to by blood, marriage or adoption, and that to the best of my knowledge I am not entitled to any part of his estate on his death under a will or by operation of law.

| | |/s/______________________________ |

| | |[Typed name of first witness] |

| | |/s/______________________________ |

| | |[Typed name of second witness] |

|STATE OF MICHIGAN |) |

|________ COUNTY |) |

| | |

On this «SignDate», before me, a Notary Public, personally appeared «ClientName», who executed the above Patient Advocate, and acknowledged the same to be his free act and deed.

|/s/__________________________________ |

|[Notary public’s name, as it appears on application for commission] |

|Notary public, State of Michigan, County of [county]. |

|My commission expires [date]. |

|[If acting in county other than county of commission: Acting in the County of [county].] |

[SIGNATURE DECLARATION FOR A FEMALE]

I declare under penalty of perjury that «ClientName» has identified herself to me, that she signed or acknowledged this Durable Power of Attorney for Health Care and for Care, Custody and Medical Treatment Decisions in my presence, that I believe she is of sound mind, that she has affirmed that she is aware of the nature of the document and is signing it voluntarily and free from duress, that she requested that I serve as witness to her execution of this document, that I am not the person appointed as Patient Advocate by this document, and that I am not a provider of health or residential care, an employee of a provider of health or residential care, the operator of a community care facility, or an employee of an operator of a health care facility.

I declare that I am not related to by blood, marriage or adoption, and that to the best of my knowledge I am not entitled to any part of her estate on her death under a will or by operation of law.

| | |/s/______________________________ |

| | |[Typed name] |

|STATE OF MICHIGAN |) |

|________ COUNTY |) |

| | |

On this «SignDate», before me, a Notary Public, personally appeared «SpouseName», who executed the above Patient Advocate, and acknowledged the same to be her free act and deed.

|/s/__________________________________ |

|[Notary public’s name, as it appears on application for commission] |

|Notary public, State of Michigan, County of [county]. |

|My commission expires [date]. |

|[If acting in county other than county of commission: Acting in the County of [county].] |

ACCEPTANCE OF APPOINTMENT

1. This designation shall not become effective unless the patient is unable to participate in treatment decisions.

2. A Patient Advocate shall not exercise powers concerning the patient’s care, custody and medical treatment that the patient, if the patient were able to participate in the decision, could not have exercised in his or her own behalf.

3. This designation cannot be used to make a medical treatment decision to withhold or withdraw treatment from a patient who is pregnant that would result in the pregnant patient’s death.

4. A Patient Advocate may make a decision to withhold or withdraw treatment which would allow a patient to die only if the patient expressed in a clear and convincing manner that the Patient Advocate is authorized to make such a decision, and that the patient acknowledges that such a decision could or would allow the patient’s death.

5. A Patient Advocate shall not receive compensation for the performance of the Patient Advocate’s authority, rights and responsibilities, but a Patient Advocate may be reimbursed for actual and necessary expenses incurred in the performance of the Patient Advocate’s authority, rights and responsibilities.

6. A Patient Advocate shall act in accordance with the standards of care applicable to fiduciaries when acting for the patient and shall act consistent with the patient’s best interests. The known desires of the patient expressed or evidenced while the patient is able to participate in medical treatment decisions are presumed to be in the patient’s best interests.

7. A patient may revoke a designation at any time in any manner sufficient to communicate an intent to revoke.

8. A patient may waive his or her right to revoke the patient advocate designation as to the power to make mental health treatment decisions, and if such a waiver is made, his or her ability to revoke as to certain treatment will be delayed for 30 days after the patient communicates his or her intent to revoke.

9. A Patient Advocate may revoke the Patient Advocate’s acceptance to the designation at any time and in any manner sufficient to communicate an intent to revoke.

10. A patient admitted to a health care facility or agency has the rights enumerated in MCL 333.20201.

I understand the above conditions and I accept the designation as Patient Advocate for «ClientName».

| | |/s/______________________________ |

| | |«Primary_Agent» |

| | |/s/______________________________ |

| | |«Backup_1» |

| | |/s/______________________________ |

| | |«Backup2» |

| | |/s/______________________________ |

| | |«Backup3» |

|THIS DOCUMENT DRAFTED BY: | | |

|«Attorney» | | |

|[Firm Name] | | |

|[Firm Address] | | |

|[Firm Phone] | | |

HIPAA Authorization

I, «ClientName», of «ClientAddress», «City», «State» «PostalCode», «Phone», do hereby appoint «Primary_Agent», of «Primary_Agent_Address», «Primary_Agent_Phone»; «Backup_1», of «Backup_1_Address», «Backup_1_phone»; «Backup2», of «Backup2Address», «Phone1»; and, «Backup3» of «Backup3Address», «Phone2», acting individually and independently, as my agent and Attorney-in-Fact (“Agent”) to act for me and in my name, place and stead and with the same authority I would have if personally present, for the purpose of signing (i) any Authorization required by the Final Privacy Regulations issued pursuant to the Health Insurance Portability and Accountability Act in order to obtain access to Protected Health Information about me and (ii) any other consent or release that might be required to authorize the release, use or disclosure of confidential health information.

Date: «SignDate»

|Witnesses: | | |

|/s/_______________________________ | |/s/______________________________ |

| | |«ClientName» |

|/s/_______________________________ | | |

|STATE OF MICHIGAN |) |

|________ COUNTY |) |

| | |

On this «SignDate», before me, a Notary Public, personally appeared «ClientName», who executed the above Authorization, and acknowledged the same to be his/her free act and deed.

|/s/__________________________________ |

|[Notary public’s name, as it appears on application for commission] |

|Notary public, State of Michigan, County of [county]. |

|My commission expires [date]. |

|[If acting in county other than county of commission: Acting in the County of [county].] |

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