Durable health care powers of attorney prepare you for the unthinkable. What would happen if you suddenly went into cardiac arrest and were left in a permanent vegetative state? Would your family members agree on how to care for you? Or would disagreements about continuing your life support tear them apart? Would they know your wishes at all?
While you’ll hopefully never need a health care power of attorney, drafting one can protect you and your family from unnecessary heartache. Below, we’ll explain Michigan’s power of attorney laws and why your estate plan might benefit from a health care power of attorney.
What Is a Durable Health Care Power of Attorney?
A durable health care power of attorney gives a trusted loved one the power to make your health care decisions if you become mentally incapacitated. This person is called either a “patient advocate” or your “agent.”
Typically, the document that empowers your patient advocate also clearly sets out your treatment preferences. This might involve:
- Giving your advocate the right to approve reasonable and necessary medical care
- Letting them access your bank account to issue payment for your care
- Designating your preferred medical providers, such as a particular hospital or nursing facility
- Explaining whether and when you want to receive life support services like feeding tubes and mechanical ventilation
- Giving your agent the right to withhold treatment under certain circumstances
It’s always in your best interest to clearly set out your wishes when it comes to your healthcare. If your medical directives are vague or contradictory, they might cause problems for you, your family, and your patient advocate.
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Sometimes, people try to draft living wills or “advanced directives” that explain their medical and end-of-life wishes. However, a living will does not appoint a legal representative to make these decisions for you. Unlike most states, Michigan does not have a statute that makes living wills binding, although there is case law that supports their validity.
All of this means that if a hospital or nursing home refuses to honor the wishes outlined in your will, your family might have to file a lawsuit to enforce those wishes or ask the courts for legal guardianship. And there’s no guarantee that they’ll win. Because of this risk, we encourage our clients to draft health care powers of attorney rather than try to address their healthcare treatment wishes through living wills.
Why Do I Need Advanced Directives or a Health Care Power of Attorney?
When someone becomes incapacitated and lacks a health care power of attorney, hospitals will sometimes recognize an informal decisionmaker, such as a spouse or an adult child. However, if disagreements arise within the family, things can get complicated.
For significant health decisions, such as approving a risky surgery or ending life support, hospitals typically want a consensus from available decisionmakers when there’s not a health care power of attorney. However, consensus isn’t always easy to reach in weighty matters like this. If your family members have different opinions about your need for treatment, they might end up in court arguing over who should be your guardian and what treatment is best. Not only can this quickly become a lengthy and expensive process, but it can permanently damage relationships as well.
How Do I Create a Health Care Power of Attorney?
In Michigan, a health care power of attorney must be signed, witnessed by two people, and notarized. The patient advocate must also sign an acceptance, although he or she can do this later.
It’s important to understand that your trusted loved one can’t just go out and get a power of attorney once you become incapacitated. The person agreeing to a power of attorney must have the mental capacity to understand the document and agree to its terms. This is why you should create your end-of-life plan while you’re still relatively healthy and can clearly express your wishes.
Once a person becomes incapacitated, the only way someone can get the sole authority to make medical decisions for them is to file a guardianship petition in probate court. The court will appoint someone as the incapacitated person’s legal guardian, and that person will then have the power to make health care and other decisions on the incapacitated person’s behalf.
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Should I Use an Online Power of Attorney Form?
You might have already seen online health care power of attorney forms that promise to get the job done cheap and fast. However, many of these forms are generalized and overly vague. Others mostly consist of blank spaces where you’re supposed to express your medical wishes. This is a big problem, because it’s difficult for the average person to think of every possible medical outcome and then express their treatment preferences in specific, technical terms.
And one simple form might not meet your needs or protect your interests. For example, in addition to a health care power of attorney, you may want to create a durable financial power of attorney, which lets a trusted loved one manage your financial affairs. You also might want to appoint a legal guardian for your minor children.
Rather than try to draft your own health care power of attorney, it’s usually in your best interest to work with an experienced Michigan estate planning lawyer. A lawyer can help you draft a health care power of attorney that clearly explains your wishes and is legally-binding. This should help your loved ones avoid unnecessary disagreements or even litigation if the unthinkable happens and you become seriously ill or otherwise incapacitated.
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Additionally, an estate planning attorney can help you build a comprehensive estate plan that helps protect your financial assets and business during a period of incapacitation and distributes your property according to your wishes after your death.
The Law Offices of Kari Santana: Creating Comprehensive Estate Plans for West Michigan Families
At the Law Offices of Kari Santana, we pride ourselves on providing practical advice, cost-effective solutions, and personalized client relationships. We offer comprehensive estate planning services, from simple wills to elaborate plans involving multiple trusts and powers of attorney. Contact us online or at 616-717-5759 to schedule a confidential, no-risk consultation and find out what we can do for you.
The content provided here is for informational purposes only and should not be construed as legal advice on any subject.