Posted On Jan 05

Michigan guardians do not have a neat, bright-line statutory test when making life-sustaining treatment decisions for a developmentally disabled or a mentally incapacitated ward. Further, probate courts do not provide guardians advance directives about life-sustaining treatment for the ward. Michigan hospitals and nursing homes, on the other hand, are increasingly asking guardians of seriously ill persons to provide advance instructions about life-sustaining treatment. Guardians need clear guidance concerning their authority to make decisions about life-sustaining treatment for their wards.

The Michigan Supreme Court drew a bright line in favor of personal autonomy in the Martin[1] case. In Martin, a patient with a traumatic brain injury was confined to a nursing home. His spouse was his guardian. The court stated that the guardian needed clear and convincing evidence that, while competent, the ward said with sincerity that he wanted life support terminated under these same or similar circumstances. This highly-specific, subjective evidentiary standard is difficult to meet. However, the standard and the specificity that the court demanded from the guardian in Martin relates to the gravity of the decision to withdraw life-sustaining treatment from a conscious and relatively healthy ward. [2] The court acknowledged that if the patient had been unconscious and struggling to live then an objective standard might have been appropriate. [3]

After personal autonomy decisions such as the one in Martin, many people have created living wills. However, the most commonly used living wills make simple, generalized statements which are not helpful to the medical personnel trying to interpret them. Specific statements are more helpful. However, when confronted with an extensive document containing specific questions, many people fail to complete it.

A patient advocate designation [4] appoints a surrogate and informs the physician which decisions the surrogate can make for the patient in the event the patient can no longer decide for himself or herself. The patient has a right to delegate decisions to a chosen surrogate because the patient has a common law right to informed consent. However, many patient advocates fail to apply the purely subjective standard required by Martin when acting as a patient advocate. Like living wills, most patient advocate designations provide only generalized instructions.

A patient advocate has priority over a guardian as to healthcare decisions. If there is a valid, unrevoked patient advocate designation when the court appoints a guardian, the court may not grant the guardian the authority to make decisions given to the patient advocate in the patient advocate designation. [5] The court must defer to the patient advocate’s authority to make medical decisions for the ward. There is no higher source of authority when it comes to deciding a patient’s care than that of a patient’s authority to decide for himself as expressed in a valid patient advocate designation.

It is clear that a guardian cannot sign a do- not-resuscitate order for a ward if the ward is not institutionalized (a resident of either a nursing home or a department of community health facility or a patient in a hospital). [6] The legislature has authorized do-not-resuscitate orders for use in the community, but only patients and patient advocates may execute them. [7] The purpose of a community do-not-resuscitate order is to communicate to emergency personnel that the patient does not want cardiopulmonary resuscitation. The form protects emergency personnel from lawsuits.

It is not clear whether the legislature has au- thorized guardians to make decisions regarding life-sustaining treatment for terminally ill wards. The Michigan Death With Dignity Act [8] requires physicians to communicate with the patient or their surrogate about the patient’s terminal illness and to explain what treatment options are available to the patient, including the right to refuse treatment. The Act is clear that it does not abrogate the common law concerning end-of-life decision making. It appears that the legislature assumed that the common law allows a guardian or next of kin to decide life-sustaining treatment for a terminally ill ward, since there would otherwise be no point to informing them of the patient’s treatment options.

A guardian who has the authority to make medical decisions may refuse medical care for a mentally incapacitated ward. (9) The same is true of a guardian for a developmentally disabled adult ward. (10) However, the guardian may need to petition the court for an instructive order if the result of the guardian’s refusal is that the patient will die. If the guardian has clear and convincing evidence that the order is consistent with the patient’s known wishes at a time the patient was competent to make those kinds of decisions, then the court will likely authorize the order. But if the patient is developmentally disabled and has never been competent, or the patient never expressed his or her wishes, the court must apply an objective, best-interest standard. (11) An objective, best-interest standard asks whether a reasonable person would find the medical treatment too burdensome to bear under the circumstances. In Martin, the court suggested that if a formerly competent patient was in pain, in a persistent vegetative state, terminally ill or suffering from a similarly serious affliction, then an objective standard may be appropriate.[12] In Rosebush, the court stated that an objective standard was appropriate for minors or developmentally disabled persons with guardians.[13]

In summary, a guardian may sign an order concerning life-sustaining treatment for a ward, if the guardian has clear and convincing evidence that the order is consistent with the ward’s wishes expressed while the ward was competent to make those kinds of decisions. Clear and convincing evidence can be either oral or in writing, but the expression should be solemn enough to convince third parties that the patient expected the communication to decide his or her fate one day. Off the cuff expressions in a social setting are not sufficient.

If the ward is a minor or developmentally disabled person, then they have never been competent and the Martin, informed consent/clear and convincing evidence standard does not apply to them. The objective, best interest standard applies instead.

If the ward is a formerly competent patient without any advance directives, the guardian’s authority to decide life-sustaining medical treatment for the ward is limited. The limitation is that the ward must be in pain, in a persistent vegetative state, terminally ill, or suffering from a similarly serious affliction before the guardian can sign an advance directive on behalf of the ward. The guardian may apply an objective (best interest) standard, but the guardian must discuss the matter with the ward if it is possible to do so.

Hospitals and nursing homes in Traverse City and Jackson are implementing pilot programs that use POLST forms. [14] The Physician’s Order for Life Sustaining Treatment (POLST) form is an order signed by an attending physician that provides advance directives to medical staff concerning life sustaining treatment (use of feeding tubes, intravenous hydration, ventilator care, and cardio-pulmonary resuscitation [15]). POLST forms have the same objective as living wills and patient advocate designations – to protect the patient’s right to autonomy.

Ordinarily, the POLST order would be completed when a seriously ill patient is discharged from a hospital to a nursing home or hospice facility. The program targets seriously ill patients who are likely to need life-sustaining treatment in the next year. Although the objective of the POLST program is to protect the patient’s autonomy by recording the patient’s wishes in clear language that medical personnel understand, the POLST forms are completed at a time when many patients are already relying on a surrogate such as a patient advocate or a guardian. If the POLST form does not comply with the patient’s wishes, the patient may revoke it. The process is similar to the revocation of a patient advocate designation. A patient may revoke a patient advocate designation at any time and in any manner that communicates their wish to revoke it.

A POLST program provides a guardian an opportunity to ask the court for clear guidance concerning their authority to decide life-sustaining treatment. A guardian may petition the court for instructions concerning their authority to complete and sign a POLST order. The POLST order will ask the guardian whether the ward wants full treatment,[16] limited additional interventions,[17] or comfort measures only.[18] The guardian should be ready to explain to the court why the ward’s physician has placed the ward on hospice and how the instructions on the POLST order are acceptable to the ward, the ward’s family, and the ward’s attending physician.

The distinction between a POLST order and a patient advocate designation is that the POLST order is a static document that is effective immediately for patients who are likely to die within the next twelve months. It states the patient’s treatment preferences at a time when their future is clearly foreseeable. The patient advocate designation, on the other hand, states the patient’s preferences in the event the patient is no longer able to make his or her own treatment decisions in an unforeseeable future. In both cases, the patient should be able to reasonably comprehend the consequences of what they are deciding. In both cases, the patient may amend the document so long as they still have a sound mind. And in both case, the patient may revoke the document at any time.

1. Martin v Martin (In re Martin), 450 Mich 204, 538 NW2d 399 (1995). The opinion rejects the substituted judgment standard where a guardian adopts a ward’s value system to decide what the patient would choose if unable to do so. Id. at 219. The opinion also rejects ap- plying an objective standard to formerly competent wards prior to their having an af iction such as terminal illness. Id. at 225.

2. Id. at 207. “…whether life-sustaining treatment in the form of a gastrostomy tube that provides nutritive support should be removed from a conscious patient who is not terminally ill or in a persistent vegetative state, but who suffers from a mixture of cognitive function and communi- cation impairments that make it impossible to evaluate the extent of his cognitive de cits.” Id.

3. Id. at 223, FN 15. “We express no opinion about the proper decision-making standard for pa- tients who have never been competent, patients existing in a persistent vegetative state, patients who are experiencing great pain, or patients who are terminally ill. If a patient has any of these conditions, or ailments of a similar nature, a more objective approach may be necessary and appropriate.” Id.

4. MCL 700.5509(c) provides that a patient advocate may make a decision to withhold or withdraw treatment that would allow a patient to die only if the patient has ex- pressed 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. MCL 700.5306(5).

6. MCL 333.1051 et seq. MCL 333.1052(c) provides that for the purpose of the Act a do-not-resuscitate order means a document that takes effect in the event that a patient suffers cessation of both spontaneous respiration and circulation in a setting outside of a hospital, a nursing home, or a mental health facility owned or operated by the department of community health.

7. MCL 333.1053(1) provides that “an individual who is 18 years of age or older and of sound mind may execute a do-not-resuscitate order on his or her own behalf. A pa- tient advocate of an individual who is 18 years of age or older may execute a do-not-resuscitate order on behalf of that individual.” A DNR executed pursuant to the DNRPA must contain the language provided in the statutory form, and the DNR must be in substantially in the same form as the statutory form. MCL 333.1054. Two witnesses are required, and they must attest that the “declarant” is of sound mind and under no duress, fraud, or undue in u- ence. MCL 333.1053(3). The declarant is the person on whose behalf the DNR was executed, or the person who executed the DNR. MCL 333.1052(b). Although a patient advocate may execute a DNR, the patient advocate may not execute a DNR for a patient who appears to the witnesses to have an unsound mind. The declarant’s attending physician must also sign the DNR. MCL 333.1053(2)(b).

8. MCL 333.5654.

9. MCL 700.5306(5).

10. MCL 330.1629.

11. In re Rosebush, 195 Mich App 675, 491 NW2d 633 (1992). The opinion provides that the objective standard considers the patient’s functioning, physical pain with or without treatment, life expectancy with or without treat- ment, risks, side effects and bene ts of the options, and the loss of dignity the patient suffers from the condition and the treatment. Id. at 690. The Martin opinion states that the guardian is exercising the state’s parens patriae authority and all authority of the state to decide the never competent patient’s healthcare is based on that authority alone. In re Martin at 222.

12. See FN 3.

13. In re Rosebush at 690.

14.http://www.ohsu.edu/polst/programs/state+programs.htm.

15. http://www.ohsu.edu/polst/patients-families/faqs.htm#4.

16. Full treatment includes intubation, advanced airway interventions, mechanical ventilation, cardioversion, IV fluids, and all measures to relieve pain and suffering. Includes intensive care.

17. Limited additional interventions includes IV fluids, cardiac monitor and all measures to relieve pain and suffering but not intubation, advanced airway interventions, or mechanical ventilation. Does not include intensive care but does include hospital care.

18. Comfort measures only include medication by any route, positioning, wound care and other measures to relieve pain and suffering. Oxygen, suction, and manual treatment of airway obstruction is applied as needed for comfort. It does not include intubation, advanced airway interventions, mechanical ventilation, cardio-version, IV uids or a cardiac monitor. Does not include intensive care and includes hospital care only if needed for comfort.

Published in State Bar of Michigan Probate and Estate Planning Journal, Summer 2011. Author: Constance L. Brigman. After this article was published, SB 0539 of 2011 moved forward on June 29th. It was  signed into law and given immediate effect on Dec. 31, 2012. Many of the ambiguities regarding the authority of a guardian to sign a do-not-resuscitate order for a ward were resolved in that law. The author’s committee, the Guardianship and Conservatorship Committee of the State Bar of Michigan Probate and Estate Planning Council, was instrumental in getting that law passed. The author was the chairperson of that committee.

Posted On Jan 05

If a mentally incompetent patient has neither a guardianship nor an advance directive, then what is her healthcare provider left with? Answer: A patient in a boat with no paddles.

A patient may live on artificial life support for a long time. There are many life-sustaining treatments.[1] Some are hard to endure,[2] selectively effective,[3] and if one survives[4] the treatment, the outcome might not be easy to accept.[5]

If emergency medical treatment is rendered to a patient, the patient’s consent to the treatment is implied. To override implied consent, a patient must offer an informed refusal.[6] Again, emergency medical treatment does not require informed consent. It requires an informed refusal.

Query: The patient is unconscious and not breathing. How can she refuse a lifesaving medical treatment?

Response: The patient executes and maintains an advance directive in her medical records.

Query: CPR saved the patient’s life but she is in a persistent vegetative state and she does not have advance directives. The physician and family want to remove her life support. The court did not authorize it because there is insufficient proof of the individual’s wishes.[7] This is a problem. [8]

Response: A patient who cannot make her own health care decisions occupies a legal position similar to that of a minor. Meaning, the state will protect this individual from harm. (9) If the patient’s family members seek to remove life support for this individual, they are implementing a decision the patient already made for herself at a time when she still had the mental capacity to make it. The evidentiary standard for proof of the patient’s wishes is not the same for every state.[10]

Generally, the patient’s family is in the best position to know his or her wishes, but not all families are alike. Therefore, a state may impose a higher burden of proof on families seeking to remove life support from a formerly competent adult. It is a difficult burden to meet, and imposing it means that some individuals will get caught in the crossfire. To avoid a harsh result, it is permissible to impose a lower evidentiary standard if the patient is permanently unconscious, suffering pain that cannot be relieved, or near death.[11] There is no bright line test but in Michigan the clear and convincing evidentiary standard generally applies to formerly competent, conscious adults on life support.[12]

Discussion:

In Michigan, the leading case regarding end of life medical decisions for conscious, formerly competent adults is In re Martin. [13] In this 1995 opinion, a guardian was not allowed to terminate life-sustaining treatment for a formerly competent and conscious patient, because her proofs failed to meet the clear and convincing evidentiary standard. The patient was healthy and conscious, and it was not clear what he presently wanted. Absent solid confirmation of his wishes past and present, the court did not remove his feeding tube.

While competent, the patient said that he never wanted to live hooked up to a machine. However, the court passed over those statements, requiring proof that the patient’s statements were part of a serious, thoughtful, consistent decision to refuse medical treatment under the exact or similar circumstances.  The proofs may have been sufficient had the patient been terminally ill and experiencing great pain that could not be relieved.

The leading Michigan case regarding the objective standard is In re Rosebush.[14] In this case, the patient, a minor, never had the capacity to make her own healthcare decisions. According to the opinion, removal of the patient’s life support did not require a court order as long as her healthcare providers and parents agreed on what was in her best interest. The opinion suggests that not every end of life decision requires a court order authorizing the guardian’s decision.

Notably, Martin dealt with a spouse who was her husband’s guardian. In Michigan spouses are not natural guardians as parents are for minors. Note that the court specifically asked her for proof of the patient’s treatment preferences. Elsewhere, a spouse like might be able to inform a healthcare provider about her husband’s wishes without seeking a guardianship. In Michigan, there is no appellate decision specifically authorizing a spouse to act as the patient’s agent in a healthcare decision-making capacity.

Two Michigan statutes, the Social Welfare Act[15] and the Michigan Dignified Death Act[16] include family members in certain medical treatment decisions. The Social Welfare Act authorizes next of kin to provide consent to medical treatment for an indigent patient needing essential medical care. The Dignified Death Act allows a physician to communicate with family members about a terminally ill patient’s treatment choices. Of the two, the Social Welfare Act gives family members greater authority.

The Dignified Death Act does not grant family members the authority to make decisions about end of life treatments. Instead, it requires physicians to inform terminally ill patients about patients’ rights and treatment options including the right to appoint a patient advocate.

Like the Patient Self-Determination Act,[17] the Dignified Death Act informs patients and their families that a patient has the right to choose medical treatment. However, it is primarily concerned with the timing of the information.[18]

Importantly, if a terminally ill patient is incompetent, the Dignified Death Act allows a physician to give information to the patient’s guardian, patient advocate or family.[19] One could conclude that the legislature would not have included the patient’s family in the list unless it believed that the family had the authority to make medical treatment decisions. Alternatively, the legislature may have assumed that the family would act on the information and petition for guardianship if the proper party refused to act. The most reasonable conclusion is that the purpose of the Dignified Death Act is to get information to a person that knows the patient’s wishes and to empower that person with timely information about treatment choices.

In summary, Michigan does not have a family consent law authorizing families to either make an end-of-life medical treatment decisions for a patient using an objective standard, or to communicate the patient’s treatment preferences using a subjective standard. Some Michigan hospitals, however, allow families to communicate the patient’s treatment preferences without seeking guardianship.[20] Likewise, some nursing homes are implementing a pilot program that allows the patient’s family to communicate his or her wishes in an informal capacity.[21] This program follows the paradigm of the Physician’s Order for Life-Sustaining Treatment[22] (POLST) program.

A POLST is a physician’s order intended for patients near death. The patient’s participation is voluntary. The validity of accepting an incompetent person’s voluntary participation in the program is an important legal question.

A POLST is written at the hospital and follows the patient after discharge, meaning, it continues to have legal effect after the patient leaves the physician’s care. If the patient’s medical condition changes, the POLST must be revoked or revised. Although it sounds like a POLST is an advance directive, it is not. Unlike an advance directive, a POLST takes effect immediately. It guides medical care in light of the patient’s current condition. Taking that into consideration, it clearly is a document that solves the problem of incompetent patients lacking advance directives. Only competent patients may execute an advance directive.[23]

The POLST paradigm relies on the legal authority of the family to communicate end of life medical treatment decisions for incompetent patients.[24] Since Michigan does not have a family consent law, the POLST paradigm is difficult to understand or implement fairly in Michigan.

Here is the situation for Michigan: our population curve is tilting towards aging baby boomers, guardianships are not popular because they are burdensome, healthcare providers would like to simply ask the families what the patients want, and many patients would prefer to let their families speak for them without any paperwork. It appears that whether one likes the POLST paradigm programs or not, they are here to stay, and they seem to do for patients what patients want done. Therefore, it makes sense to enact a family consent law to lay down some guidelines for a practice that is likely to continue regardless of any lack of legal authority it may have in Michigan.

Family consent laws provide an order of priority for selecting a surrogate decision-maker. They also limit the medical treatment decisions a surrogate may make. For example, if a patient does not have a patient advocate or guardian, a family consent law determines who may make medical treatment decisions on the patient’s behalf. It also specifies which treatment decisions the family may make. For all other decisions, a guardianship is required. The family consent law includes a list of interested parties who have a right to object to the surrogate’s decision. The same procedures that protect a patient in the patient advocate designation law ought to be present in a family consent law. Healthcare providers have an incentive to follow family consent laws, because they are protected from liability if they do so.

In 1993, the Uniform Law Commission promulgated an Act that included a family consent law for adults and emancipated minors.[25] Like previous acts, it has a priority list to determine who should be designated as the surrogate decision maker. It gives highest priority to a surrogate decision maker orally designated by the patient

If a patient does not name a surrogate, a family member may assume authority according to a governing order of priority. The priority list begins with the patient’s spouse, followed by, in order, an adult child, a parent, and an adult brother or sister.  If there is no available person related to the patient, “an adult who has exhibited special care and concern for the patient, who is familiar with the patient’s personal values, and who is willing and able to make a health-care decision for the patient” is allowed to assume authority. In the event that nobody is qualified and willing to serve, the health-care provider may ask the probate court to appoint a guardian.

The surrogate decision-maker is last in line in a hierarchy of healthcare decision makers as follows:

  • The patient makes his or her own medical treatment decisions so long as he or she is competent to provide informed consent to medical treatment.
  • If the patient cannot provide informed consent to medical treatment, the patient’s appointed agent in an advance directive must be notified.
  • If there is no validly appointed agent qualified and reasonably available to make medical treatment decisions, a court appointed guardian must be notified if one has been appointed.
  • If there is no court appointed guardian, the health-care provider may select a default surrogate decision maker according to the priority list that is provided in the Act.

Michigan needs a family consent law. Healthcare providers have developed policies to cope with the issue of family consent, but the result is a patchwork of inconsistencies. For any individual, the outcome will differ depending on the hospital and the location in which the individual dies.  This is not a satisfactory result, and why guidance from a family consent law is needed.

Published by State Bar of Michigan in Michigan Bar Journal, May 2014. Author: Constance L. Brigman.

[1] Life-sustaining treatment includes all treatment which has the potential to postpone the patient’s death and includes cardiopulmonary resuscitation, artificial ventilation, specialized treatments for particular conditions such as chemotherapy or dialysis, antibiotics when given for a potentially life-threatening infection and artificial nutrition and hydration.

[2] Gorenstein, How Doctors Die: Showing Others the Way, The New York Times, November 20, 2013, p. F-1.

[3] Jones, Public expectations of survival following cardiopulmonary resuscitation, 7 Academic Emergency Med 48 (2000); see also, Diem, Cardiopulmonary Resuscitation on Television – Miracles and misinformation, 334 New Eng J Med. 1578 (1996).

[4] De Vos, Quality of survival after cardiopulmonary resuscitation, 159 Arch Int Med 249 (1999).

[5] Colby, From Quinlan to Cruzan to Schiavo: What have we learned? 37 Loy U Chi LJ 286 (2006).

[6] “The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment.” Cruzan v. Mo Dep’t. of Health, 497 U.S. 261, 270 (1990); 110 S Ct 2841; 111 L Ed 2d 224 (1990). Quoted in Martin and Rosebush.

[7] Martin v Martin, 450 Mich 204; 538 NW2d 399 (1995).

[8] Fagerlin & Schneider, Enough: The Failure of the Living Will, 34 Hastings Center Report 30 (2004).

[9] Cruzan, n 6 supra.

[10] Id. at 284.

[11] Martin, n 7 supra at 223.

[12] Id. at 234.

[13] Id.

[14] In re Rosebush, 195 Mich App 675; 491 NW2d 633 (1992).

[15] MCL 400.1 et seq.

[16] MCL 333.5651 et seq.

[17] 42 USC 1395cc(f). If a provider participates in Medicare and Medicaid, it must inform patients in writing of their rights under state law regarding advance directives. CFR § 489.102(3) allows a medical provider to give information about advance directives to the patient’s family or surrogate if the patient is incapacitated. This communication satisfies the act’s requirements.

[18] MCL 333.5652(1)(e).

[19] MCL 333.5655(b).

[20] See Edward W. Sparrow Hospital, Medical Staff: General Policies and Procedures Manual, revised March, 2013, pp 49-60.

[21] Michigan Dep’t of Community Health, MI-POST Emergency Services Training, State Emergency Medical Services Coordination Committee Meeting Minutes Approved, Sep. 28, 2012, p 3. Presented by Michigan Coalition for Honoring Healthcare Choices – Michigan Director Carolyn Stramecki.

[22] <http://www.polst.org>. All websites cited in this article were accessed March 25, 2014.

[23] 42 U.S.C. § 1395cc(f)(3).

[24] See Oregon POLST Task Force, (POLST) Physician Orders for Life-Sustaining Treatment (POLST): Use for Persons with Significant Physical Disabilities, Developmental Disabilities and/or Significant Mental Health Condition who are Now Near the End of Life, available at <http://www.polst.org/wp-content/uploads/2013/02/ POLSTPersonswithDisabilitiesLongDocument.Final_.pdf>.

[25] See Uniform Healthcare Decisions Act of 1993 available at http://www.uniformlaws.org/Act.aspx?title=Health-Care%20Decisions%20Act

 

 

Posted On Jan 04

What is the correct valuation date for an inventory submitted to probate by a conservator or by a trustee of a revocable trust? A conservator must submit a complete inventory within 56 days of appointment. MCL 700.5417(1). A trustee of a revocable trust may submit an inventory and account in order to gain a shorter period of liability under MCL 700.7303(1) and 700.7307. So long as trustees provide a sufficiently detailed account, they qualify for a shortened statute of limitations on breach of trust claims.

DATE OF QUALIFICATION

According to Fiduciary Accounting Principles,[i] a proper account identifies all significant transactions affecting administration during the accounting period. A proper account has a proper opening and ending balance. Individual asset values, gains, and losses are sufficiently itemized. In accounting terminology, a fiduciary account begins and ends with “assets on hand.” This term is synonymous with “cash on hand,” “goods on hand,” or like terms that indicate a list of current assets for a particular date.[ii]

WHEN IS “QUALIFICATION”?

A conservator is qualified by their letters of authority. A trustee is qualified by an acceptance of trust, generally by signing and dating their acceptance of trust duties. As a rule, the fiduciary qualifies (date 1) but takes possession of the assets on a later date (date 2). The inventory date is date 1. An inventory is complete if (1) it is for the qualification date and (2) all assets are listed and valued for that date.[iii]

NONCONFORMING PRACTICE

A nonconforming practice is one that does not conform to accepted procedure. Some fiduciaries list assets on the inventory using other dates. For example, an item may be listed with an inventory value of zero, because the conservator has not yet “taken possession” of that particular asset. All assets that are part of the trust or estate on the fiduciary’s date of qualification should be listed on the inventory.

RESULTS OF NONCONFORMING PRACTICES

The use of a valuation date other than the date of qualification renders an inventory incomplete. By using the wrong valuation date, the fiduciary creates a period of fiduciary non-accountability. For example, if the fiduciary qualifies on May 8, 2007, but provides asset values for Nov. 8, 2007, then a period of fiduciary non-accountability is created. Significant transactions are un-accounted for from May 8, 2007 through November 8, 2007. Further, the first account is skewed by the inaccuracy of the inventory. The account will state that it begins on May 8, 2007 and ends on May 8, 2008. But the details of the account will necessarily report income and disbursements for a period that actually begins November 8, 2007 and ends May 8, 2008. It gets even more complicated if the first account reports capital gains and losses from sales of investments. In some cases, the author has seen accounts rendered by fiduciaries that used inventory values that were all over the map. None of the assets had values for the same date. Instead, the asset values were for the date that the fiduciary took possession of each asset from the predecessor fiduciary. What should have happened instead? The predecessor fiduciary should discharge on date (1). The successor fiduciary should accept as of date (1). The predecessor fiduciary should distribute to the successor fiduciary on date (2) with no fiduciary transactions occurring between date (1) and date (2). The successor fiduciary should make the inventory for date (1). The predecessor’s final account should end on date (1) with an ending balance that matches the successor fiduciary’s inventory starting balance.

ACCOUNTING FOR ASSETS NOT YET IN THE FIDUCIARY’S POSSESSION

Fiduciaries do not want to be held accountable for an asset that they are unable to possess. However, rather than list a problem asset on an inventory with a value of zero (or leave it off the inventory altogether because the fiduciary has yet to possess the asset), the fiduciary should petition the court to exclude the asset from the trust or estate altogether. The petition’s contents would bring the problem to the court’s attention and allow the court to assist the fiduciary in properly performing their appointed duties.

[i] Supreme Court Administrative Office form PC 577, revised 8/07, states that the fiduciary “submits the following as a complete and accurate inventory of all the assets of the estate and the fair market valuations as of the date of death (decedent’s estate only) or date of qualification of fiduciary (all other estates).” Id. (emphasis added.) The same form provides a statement above the signature line as follows, “I declare under penalties of perjury that the inventory has been examined by me and that its contents are true to the best of my information, knowledge, and belief.” Id.

[ii] Merriam-Webster Dictionary “inventory” noun. “An itemized list of current assets as (1) a catalog of the property of an individual or estate (2) a list of goods on hand.” Id.

[iii] The National Fiduciary Accounting Standards were first promulgated by a committee in 1980. The committee was formed in 1975 and included the American Bar Association, American Bankers Association, American College of Trust and Estate Counsel, American Institute of Certified Public Accountants, National Center for State Courts, National College of Probate Judges, and Uniform Probate Code Project. The Fiduciary Accounting Principles are as follows: Principle 1. Accounts should be stated in a manner that is understandable by persons who are not familiar with terminology peculiar to the administration of estates and trusts. Principle 2. A fiduciary account shall begin with a concise summary of its purpose and content. Principle 3. A fiduciary account shall contain sufficient information to put the interested parties on notice as to all significant transactions affecting administration during the accounting period Principle 4. A fiduciary account shall include both carrying values – representing the value of assets at acquisition by the fiduciary – and current values at the beginning and end of the period. Principle 5. Gains and losses incurred during the accounting period shall be shown separately in the same schedule. Principle 6. The account shall show significant transactions that do not affect the amount for which the fiduciary is accountable. (emphasis added)

Published in State Bar of Michigan Probate and Estate Planning Journal Spring 2008. Author: Constance L. Brigman.

Posted On Jan 04

INTRODUCTION

Probate practice is riddled with family conflicts. The problematic client tells his children to expect an inheritance then revises his estate plan. If the revision was the result of wrongful interference from a third party, does the child have a claim for damages against the third party? Can the claim be made prior to the parent’s death?

OVERVIEW

An estate plan may pass property by will, deed, trust, or contract. A will is objected to in a will contest.[1] A trust is challenged in a petition to determine the validity of a trust.[2] A contract or deed is voided under a claim of undue influence, lack of capacity, mistake, or fraud.[3] Ideally, an objection results in a two-part order: (1) a wrongful disposition of property is invalidated and (2) a rightful disposition of property is made.[4] But, the ideal is not always possible.[5]

The tort of Intentional Interference with a Gift or Inheritance allows a plaintiff compensatory, consequential, and exemplary damages against a third party defendant.[6] In some jurisdictions, the claim can be brought while the grantor is alive.[7] Michigan has not recognized the tort of Intentional Interference with a Gift or Inheritance. The Michigan Court of Appeals recognized the tort in an unpublished opinion.[8] But, it later retracted the recognition in another unpublished opinion.[9]

THE PROBLEM

  1. Introduction

Disabled persons are targets for exploitation.[10] The probate court can protect a legally incapacitated individual’s property.[11] Typically, a court-appointed conservator recovers the ward’s property on his behalf when the ward has a valid claim of undue influence or fraud.[12] But, people prepare powers of attorney, move to supportive environments, and otherwise take preventive steps to avoid the need for a court-appointed fiduciary. Mental capacity diminishes in degrees. A disabled person can be susceptible to undue influence but otherwise able to manage their affairs for a very long time. Undue influence is destructive to family relationships. The family can respond to undue influence with a petition for conservatorship or guardianship. But the resulting probate proceeding will protect the disabled person’s choices, even to the detriment of the family. It is an uphill battle for the family to prove that the disabled person’s preferences are not voluntary but the result of undue influence.

  1. Example

Anna has early Alzheimer’s. She lives in a retirement village. She owns a cottage, car, and a bank account with automatic payment features so that she does not have to remember to pay her bills. She pays extra at the retirement village for meals in her room and for a pill reminder service. Anna still drives. She tells her doctor only what he “needs to know,” so that he will not take away her driver’s license.

Anna has two sons, Bob and Chuck. Recently, Anna married another resident, Don. Don prefers to have his kids over for visits and turns Bob and Chuck away. Bob and Chuck confronted Anna about Don’s conduct. She agreed to talk to Don about it. Don responded as he always does. He told Anna that her children are greedy kids. Anna called her sons and loudly told them that she was not going to leave them a dime. Next day, Don took Anna to see “their” lawyer to revise her estate plan and to deed her vacation cottage to Don’s kids. That evening, Anna called her sons and scolded them for not bringing her grandchildren to see her. Bob and Chuck told Anna that they bring the grandchildren to visit every other Sunday, as they always have. But Don turns them away and tells them that he and Anna have other plans. Anna witnesses these exchanges, then she forgets them. But she remembers Don’s stories.

  1. Legal Remedies

Choice Number One. Bob and Chuck could initiate a protective proceeding. The probate court has jurisdiction over the ward’s estate and any interested person may file a complaint for recovery of the ward’s property.[13] But the proceeding is generally prospective. It does not look at past transactions. Anna will nominate Don to be her guardian and conservator.[14] Don will be appointed Anna’s guardian unless he is proven unfit to serve.[15] If Don is appointed, Bob and Chuck could petition the court to instruct Don to recover Anna’s cottage before the statute of limitations has run.[16}

Choice Number Two. If Bob and Chuck live in a jurisdiction that recognizes lifetime claims for Intentional Interference with a Gift or Inheritance, they could sue Don for damages.[17] A lifetime claim is one that is brought before the grantor’s death. Bob and Chuck are entitled to damages because Don intentionally used his undue influence to destroy their expectancy.[18] In order to make the claim stick, Bob and Chuck must show that they had a reasonably certain expectancy prior to the defendant’s tortious act.[19]

 

INTENTIONAL INTERFERENCE WITH A GIFT OR INHERITANCE:

ELEMENTS AND PLEADINGS

  1. Elements

Intentional Interference with a Gift or Inheritance has not been officially recognized in Michigan. It was discussed by the Michigan Court of Appeals in Green.[20] The opinion states that the elements of this tort in Michigan are (1) the existence of an expectancy, (2) intentional interference with that expectancy, (3) the interference involved conduct tortious in itself such as fraud, duress, or undue influence, (4) a reasonable certainty that the devise to plaintiff would have been received had defendants not interfered, and (5) damages.”[21] This is an unpublished opinion and the recognition of the tort was later retracted.[22]

  1. Causation

The plaintiff must prove to a reasonable certainty that they would have realized the gift or inheritance but for the defendant’s tortious acts.[23] The plaintiff’s claim shows causation if it pleads that (1) the plaintiff was the beneficiary to an asset, but (2) this was changed by a grantor who lacked the mental capacity to change it, (3) due to the defendant’s conduct (fraud, duress, or undue influence).[24]

  1. Damages

The plaintiff can allege compensatory,[25] consequential,[26] and exemplary damages.[27] In a lifetime lawsuit, the plaintiff should not seek equitable remedies such as a constructive trust.[28]

  1. Compensatory damages are for the loss of the plaintiff’s expectancy.[29] This involves fuzzy math, because it involves calculations of events that have yet to occur. The calculations will not be to an absolute certainty. But that is permissible. For example, in Bonelli v. Volkswagen of America[30] the plaintiff was awarded $1.6 million plus prejudgment interest and costs on a count of tortious interference with an advantageous business relationship. The defendant interfered with the plaintiff’s exclusive right to sell posters of the 1980 United States Olympic Hockey Team. The court stated that the plaintiff was not required to calculate his expectancy to a mathematical certainty because his expectancy is his lost profits and lost profits are speculative. The court quoted Allison v. Chandler,[31] “… we can see no objection to placing before the jury all the facts and circumstances of the case… so as to enable them to make the most intelligible and probable estimate which the nature of the case will permit.”[32] It concluded that the jury award did not shock the conscience and that the risk of uncertainty as to amount of damages should go against the wrongdoers, not for them.

The plaintiff’s expectancy in a claim for Intentional Interference with a Gift or Inheritance is not the same as a legal interest in the grantor’s estate.[33] Commentators suggest that the jury should decide as a question of fact what percentage represents the probability that the plaintiff will take his expectancy.[34] The percentage used should take into account the probability that the grantor might consume the estate before his death and also the probability that the plaintiff might predecease the grantor and fail to take anything at all. Multiply this percentage by the plaintiff’s anticipated legal interest in the grantor’s estate. The result is a dollar amount for the plaintiff’s pre-injury expectancy.[35] Next, estimate the post-injury value of plaintiff’s expectancy by asking the jury to state a dollar amount that represents the post-injury value of the plaintiff’s expectancy. If the plaintiff was completely disinherited, then the dollar amount will be zero. Subtract the post-injury amount from the pre-injury amount and the result will be the plaintiff’s compensatory damages.

  1. Consequential damages are for losses that are incurred indirectly from the act. If there are costs and attorney’s fees from a prior lawsuit that the plaintiff was forced into because of the defendant’s intentional misconduct, then those costs and fees are recoverable as a consequential damage.[36] For example, if the tort claim is brought after the grantor’s death, and the plaintiff was part of a will contest prior to bringing his tort claim, then the plaintiff is entitled to reimbursement for his attorney’s fees due to the will contest.
  1. Exemplary damages are for plaintiff’s mental anguish. The rule is that a plaintiff is entitled to exemplary damages where the defendant’s conduct was malicious, or so willful and wanton as to demonstrate a reckless disregard of the plaintiff’s rights.[37] The Michigan Supreme Court eloquently explained exemplary damages in Wise v. Daniel:[38]

 

If a cow kicks a man in the face the consequent physical hurt may equal that from a kick in the face with a hob-nailed boot, but the ‘cussedness’ of the cow raises no sense of outrage, while the malicious motive back of the boot kick adds materially to the victim’s sense of outrage. If a man employs spite and venom in administering a physical hurt he must not expect his maliciousness to escape consideration when he is cast to make compensation for his wrong. If the defendant maliciously inflicted the injury then the jury had a right to take into consideration such fact together with all the circumstances disclosed and award such sum by way of compensation as the plaintiff ought to receive, and the defendant ought to be made to pay. 221 Mich 233-234.

Here, exemplary damages are not punitive but are compensatory.[iv] Therefore, if mental anguish is otherwise pleaded such that the plaintiff is made whole without exemplary damages, then exemplary damages are duplicative and are not allowed.[39]

 

INTENTIONAL INTERFERENCE WITH A GIFT OR INHERITANCE: MICHIGAN CASELAW

 

Michigan does not recognize the tort of Intentional Interference with a Gift or Inheritance. This tort is not codified law in Michigan and, it has not been recognized by the Michigan Supreme Court.

 

  1. Creek v. Laskis[40]

In 1929, the Michigan Supreme Court opened the door to tort claims against persons who intentionally destroy an inheritance. The Court affirmed a verdict awarding a plaintiff damages for the defendant’s malicious destruction of a will that contained a legacy to the plaintiff.[41] The will draftsman testified to the $2,000 bequest to plaintiff, but only one of the witnesses could recall it. Without two witness’ support, the probate court could not admit the part of the will that provided for the plaintiff. Plaintiff brought a common law action for trespass on the case on “account of malicious and fraudulent destruction of the will, which prevented her proving the gift to her and defeated her legacy.”[42] The defendant argued that plaintiff’s sole remedy was in probate court. The court was not persuaded. It stated that the defendant’s wrongful destruction of the will destroyed the plaintiff’s probate claim and that the law provides a remedy for every wrong.[43]

  1. In re Green[44]

In 1996, the Michigan Court of Appeals recognized a claim of Tortious Interference with an Inheritance in an unpublished opinion. It affirmed a trial court’s award of damages against plaintiff’s uncle, cousin and their attorney, jointly and severally for tortious interference with an inheritance.[45] The plaintiff was the beneficiary of his uncle’s will. The defendants sold the decedent’s bar by forging his signature to a deed dated February, 1990. The decedent died December, 1990. A 1969 will left the bar to the plaintiff. But, the bar was no longer in the decedent’s estate. Plaintiff was compensated in damages equal to the bar’s value.[46] The court recognized Tortious Interference with an Expected Inheritance and stated its elements: “Tortious interference with an expected inheritance is when one who by fraud, duress, or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to the other for loss of the inheritance or gift. The Court of Appeals of Michigan recognizes this tort and joins the numerous jurisdictions [which have recognized this tort]….”[47]

 

  1. McPeak[48]

In 1998, the Michigan Supreme Court visited a fact pattern similar to that in Creek. In Creek, a wife tore up her husband’s will to prevent a legacy to the plaintiff. Similarly, in McPeak, a wife changed her husband’s life insurance beneficiary designation to prevent its distribution to the plaintiff. The jury awarded $250,000 actual damages and exemplary damages of $500,000 for each plaintiff.[49] The plaintiffs were the decedent’s two daughters. The defendant was their stepmother. The property at issue was a $250,000 life insurance policy on decedent’s life. The wife had her husband sign a beneficiary designation on April 3, 1992. Husband died of a brain tumor on April 26, 1992. Initially, the daughters had two claims that sounded in equity (lack of mental capacity and undue influence) and one claim that sounded at law (Intentional Interference with a Prospective Advantage). The jury returned a verdict in their favor. It found that: (1) the decedent executed a change in beneficiary when he lacked the mental capacity to do so; (2) the stepmother used undue influence to obtain a change in beneficiary that named her the beneficiary of the policy; and, (3) the stepmother’s actions were “malicious and so willful and wanton as to demonstrate a reckless disregard of Plaintiff’s rights.”[50] Defendant asked for a new trial. The Court of Appeals granted it because it found that the case was improperly submitted to a jury.[51] The Supreme Court vacated the judgment of the Court of Appeals.[52] It held that the parties consented to a jury trial; therefore, the verdict should not be disturbed under MCR 2.509(D).

  1. Dickshott[53]

In 2004, the Michigan Court of Appeals backtracked on its prior recognition of the tort of Intentional Interference with an Expected Inheritance that it provide in Green. The opinion specifically states that Intentional Interference with an Expected Inheritance is not a recognized tort in Michigan.[54] The court cannot recognize a tort that is neither codified law nor recognized by the Michigan Supreme Court.[55] The plaintiffs in Dickshott presented six claims: (1) Negligence, (2) Negligent Misrepresentation, (3) Breach of Contract, (4) Intentional Misrepresentation, (5) Fraudulent Concealment, and (6) Intentional Interference with an Expected Inheritance. The defendant was a Certified Financial Planner. The plaintiffs were the trust’s settlors, a trust beneficiary, and a Certified Public Accountant/ trustee. The plaintiffs alleged that the defendant sold them a single premium, whole life policy. The CPA/trustee reviewed the policy illustrations and told the settlors that it was not a single premium policy. But, the settlors purchased the policy anyway on behalf of the trust. Later, the settlors received notice of a class-action suit that was filed by other insureds alleging that the insurance company had misrepresented the product’s performance. The class action suit settled. Policy holders who accepted the settlement thereby released the insurance company and its agents from liability. The settlors submitted their claim form. They received damages in the amount of $3,000. After the settlement, the defendant admitted to the settlors that he had misrepresented to them that a single $300,000 premium would pay up the policy. The settlors sued the defendant. Plaintiffs’ first five claims were barred by a statute of limitations,[56] a failure to establish detrimental reliance,[57] and by the class action settlement.[58] Their claim for Intentional Interference with an Expected Inheritance failed because the Court does not recognize that claim.[59]

 

ANALYSIS

  1. Has Michigan recognized this tort?

Officially, no. But the door is open for a plaintiff to bring a claim for damages against a tortfeasor who destroys their inheritance.   The Creek opinion provides that a defendant is liable in damages to the plaintiff, if the defendant committed an intentional tort to defeat a legacy to the plaintiff. The McPeak opinion confirms a jury verdict for what logically would be considered tortious interference with an inheritance. But it did so on procedural grounds, not substantive grounds. Therefore, McPeak does not recognize the underlying tort claim. The Green opinion recognized the tort and cited its elements. But, it is an unpublished opinion from the Michigan Court of Appeals. An opinion should be published to establish a new rule of law.[60] Lastly, in Dickshott the Michigan Court of Appeals stepped away from its recognition of the tort in Green. The opinion affirms the trial court’s dismissal of the Intentional Interference with an Expected Inheritance claim for failure to state a claim.[61]

  1. Should Michigan recognize this tort?

Yes. The Michigan Legislature and/or Michigan Supreme Court should recognize the tort and cite its elements, because this tort is unofficially recognized. It is a legal wrong for a person to tear up a person’s will, or put a pen in a dying hand so that the person can unknowingly change a beneficiary designation, or forge a mentally incompetent person’s signature to a deed and sell his property. Michigan courts have already considered these legal wrongs and awarded the disinherited beneficiaries damages. In other jurisdictions, these fact patterns are recognized as the tort of Intentional Interference with a Gift or Inheritance. Likewise, Michigan should recognize the tort and develop its boundaries through caselaw.

 

  1. Should Michigan Recognize Lifetime Claims?

Yes. Michigan should recognize lifetime claims for Intentional Interference with a Gift or Inheritance, even though most jurisdictions do not.[62] In other jurisdictions, a lifetime claim may be recognized if the tortfeasor predeceased the legally incompetent grantor, and the plaintiff’s claim would be time-barred if it were not brought as a lifetime claim against the tortfeasor’s estate.[63]

It is a mistake to refuse to recognize a lifetime claim for Intentional Interference with a Gift or Inheritance. The grantor’s death is irrelevant to the tort claim between the plaintiff and defendant. The claim is ripe if the plaintiff’s expectancy was reasonably certain. The plaintiff’s expectancy was reasonably certain if the grantor lacked the mental capacity to change their estate plan. The grantor’s death is relevant to the tort claim only to the extent that it increases or decreases the plaintiff’s damages. For example, if the plaintiff was beneficiary of a trust and the trust assets were decreased every year that the grantor lived, then the plaintiff’s expectancy is lessened by the grantor’s unused life expectancy. This is the only element of the tort that is affected by the grantor’s death.

For example, in McPeak the beneficiary designation was changed on April 3, 1992. Hypothetically, the plaintiffs’ claim could have been brought on April 4, 1992, if a lifetime claim for Intentional Interference with a Gift or Inheritance were recognized in Michigan. Otherwise, the plaintiffs’ claim must wait until after April 26, 1992. But, an April 4th and a April 27th claim for Intentional Interference with a Gift or Inheritance would be identical. Both would argue that the children had a reasonably certain expectancy on April 3, 1992 when the tort occurred. The plaintiffs’ claim is ripe on that date.

One jurisdiction allows lifetime claims for Intentional Interference with a Gift or Inheritance. The Supreme Court of Maine permitted a lifetime claim in Harmon.[64] The defendant had persuaded his elderly mother to deed him property that he knew was supposed to pass at her death in equal shares to him and his brother. The issue on appeal was whether an Intentional Interference with a Gift or Inheritance claim can be brought while the testator is living. The court held that it could.[65] The court favored the lifetime claim because witnesses would be more readily available and their memories would be fresher; relevant exhibits would still be available; and, the court would be able to hear the testimony of the testator.[66]

 

The counterargument to allowing lifetime claims for Intentional Interference with a Gift or Inheritance is that the appropriate forum to decide whether an incapacitated person is subject to undue influence is in probate court.  This counterargument raises two objections. The first objection is that the plaintiff does not want to declare the grantor mentally incompetent if that is otherwise unnecessary. The second objection is that the probate court is concerned with preserving the disabled person’s independence, not with curtailing the disabled person’s choices in favor of a pre-existing estate plan.[67] In other words, it is not impossible but it is difficult to reverse a disabled person’s wishes in probate court. Lifetime probate proceedings are not concerned with protecting the rights of the ward’s former beneficiaries.

CONCLUSION

A legal wrong is committed when a third party intentionally interferes with a disabled person’s estate plan. Michigan has not officially recognized the tort of Intentional Interference with a Gift or Inheritance, even though several claims have been through the courts. The Michigan Supreme Court should recognize the tort in a published opinion. Further, Michigan should recognize both lifetime and post-mortem claims.

[1] In re Wood Estate, 374 Mich 278, 132 NW2d 35 (1965).

[2] In the Matter of the Hughes Revocable Trust: Taylor v Shipley, No. 255928, 2005 Mich App LEXIS 2301 (Sept 22, 2005) (per curiam); In the Matter of Mary S Irwin Revocable Trust: Lyle v Mary S Irwin Revocable Trust, No. 236946, 2003 Mich App LEXIS 719 (Mar 18, 2003)(per curiam); Rose v Union Guardian Trust Co, 300 Mich. 73, 1 NW2d 458 (1942). The rules of construction applicable to wills also apply to the interpretation of trust documents. In re Maloney Trust, 423 Mich 642, 639, 377 NW2d 791 (1985).

[3] MCL 700.1205; Grondziak v Grondziak, 383 Mich 543, 177 NW2d 157 (1970).

[4] A probate proceeding can determine the validity of a will or trust, if a will or trust can be produced. Otherwise, there is no probate remedy. Creek v Laski, 248 Mich 425, 227 NW 817 (1929). Three types of interference are not remedied in probate: (1) interference with the execution, alteration, or revocation of a will; (2) suppression, spoliation, destruction or loss of a will; and (3) deprivation of an inheritance by inducing inter vivos transfer. Sonja A. Soehnel, Annotation, Liability in Damages for Interference with Expected Inheritance or Gift, 22 A.L.R.4TH 1229,1233 (1983). Gift cases include all transfers without consideration and include benefi ciary designations in a trust instrument or life insurance policy. Cases involving gifts are classifi ed as those that take effect before death as opposed to after death. Id. at 1251.

[5] In Howland, testator’s attorney prepared a will that conveyed property to a nephew but had a colleague prepare a deed that transferred the property to him. The attorney recorded the deed after the testator’s death then sold the property to an innocent third party. Nephew prevailed in an action for money damages for the value of the property. Howland v Smith, 9 App Div 2d 197, 193 NYS2d 140, affd 10 NY2d 754, 219 NYS2d 607, 177 NE2d 49 (1959).

[6] “The tort significantly differs from traditional will contest causes of action because it permits a plaintiff to recover compensatory and punitive damages from a third person, as opposed to estate assets.” M. Read Moore, “At the Frontier of Probate Litigation: Intentional Interference with the Right to Inherit,” 7 PROB. & PROP. 6, 6 (1993).

[7] Plaintiff was allowed a lifetime suit because it would allow his mother to testify as to her reasons for conveying property to one son contrary to the provisions in her will that devised the property to two sons. Harmon v Harmon, 404 A2d 1020, 1022-23 (Me 1979). Plaintiff was allowed a lifetime suit because the tortfeasor passed away and a claim against the tortfeasor’s estate would be time barred if the suit were brought otherwise. Carlton v Carlton, 575 So2d 239 (Fla Dist Ct App 1991).

[8] In re Green, No 173335 (Mich Ct App 1996), at 4.

[9] Dickshott v Angelocci, No 241722 (Mich Ct App 2004).

[10] Jeff D. Opdyke, “Intimate Betrayal: When the Elderly are Robbed by Their Family Members,” WALL ST. J., Aug. 30, 2006, at D-1.

[11] But the person has to be legally incapacitated and in need of the court’s protection. MCL 700.5401(3) provides that both of the following have to be true in order for a conservatorship or protective order to be issued: (a) The individual is unable to manage property and business affairs effectively for reasons such as mental illness, mental defi ciency, physical illness or disability, chronic use of drugs, chronic intoxication, confi nement, detention by a foreign power, or disappearance. (b) The individual has property that will be wasted or dissipated unless proper management is provided, or money is needed for the individual’s support, care, and welfare or for those entitled to the individual’s support, and that protection is necessary to obtain or provide money.

[12] Once the court has jurisdiction over a legally incapacitated individual’s estate, it can recover the ward’s property. MCL 700.1205. Third parties to the contract do not have standing to void the contract and recover the property. Hoehner v Western Casualty & Surety Co, 8 Mich App 708, 155 NW2d 231 (1967).

[13] The conservator employs an attorney to recover the ward’s property. MCL 700.5423(z)(aa). MCL 700.1205 provides that an interested person in a ward’s estate may fi le a complaint to have a person appear before the court on suspicion that the person has disposed of the ward’s property. See also, Green v Evans, 156 Mich. App. 145, 401 NW2d 250 (1985)(per curiam). In Green, a conservator for the Estate of C. Merle Dixon recovered against the ward’s attorney. The attorney stole from Mr. Dixon. The jury awarded exemplary damages.

[14] The court must appoint as guardian the person designated by the ward, if that person is suitable and willing to serve. MCL 700.5313(2). If no one is designated, the ward’s spouse has priority. Id. The ward’s nominee has fi rst priority for conservator followed by the ward’s spouse, but the statute provides that the court may appoint a conservator according to the statute’s order of priority. MCL 700.5106.

[15] See In re Estate of Williams, 133 Mich App 1, 10, 349 NW2d 247 (1984) for an analysis of suitability to serve as guardian. The court can pass over a person with priority and appoint a person with less or no priority if it is in the person’s best interest.

[16] The statute of limitations is two years from discovery of the fraud. MCL 700.1205(3). Any person interested in the welfare of the ward can petition the court for an order asking for appropriate relief. MCL 700.5415(e). The petition could allege that assets of the ward were taken prior to the protective proceeding and that the interested persons request that the conservator take appropriate legal steps for the return of the property to the ward before the statute of limitations has run.

[17] Intentional Interference with a Gift or Inheritance is not recognized in all states. Sonja A. Soehnel, Annotation, Liability in Damages for Interference with Expected Inheritance or Gift, 22 A.L.R.4th (1983) Supplement at 136-7. Citing the following decisions that declared non-recognition of the claim: Weizman Inst of Sci v Neschis, 229 FSupp 2d 234 (SDNY 2002); Copelan v Copelan, 583 SE2d 562 (Ga Ct App 2003); Douglass ex Rel Louthian v Boyce, 336 SC 318, 519 SE2d 802 (SC Ct App 1999); Economopoulos v Kolaitis, 528 SE2d 714 (Va 2000).

[18] Mitchell v Langley, 391 So2d 799 (Ga 1915). In Mitchell, Georgia Langley sued her sister, Cora Mitchell, for tortious interference with a gift. Georgia and Cora were two of three sisters. Their half-brother was mentally and physically feeble. In 1904, he took out a policy on his life that was payable $1,000 to each sister at his death. In 1911, Cora started a letter writing campaign to her halfbrother. She told him that (1) the other sisters did not care about him and (2) that they were not paying their share of the premiums. In reliance on the false allegations, halfbrother named Cora the sole benefi ciary of the policy. After half-brother died, Georgia sued for tortious interference with a gift. She was awarded $1,000.

[19] “The essential elements of the tort resemble the essential elements of the tort of intentional interference with prospective economic advantage. To make a prima facie case, the plaintiff must present evidence (1) of the existence of the expectancy; (2) of intentional interference with the expectancy by the defendant; (3) that the interference itself was tortuous, such as fraud, duress, or undue infl uence; (4) that the plaintiff was reasonably certain to have received his or her expectancy but for the interference; and (5) of damages.” M. Read Moore. At the Frontier of Probate Litigation: Intentional Interference with the Right to Inherit, 7 PROB. & PROP. 6, 7 (1993). These elements are drawn from the RESTATEMENT (SECOND) OF TORTS § 774B (1979).

[20] In re Green, No 173335 (Mich Ct App 1996)(per curiam).

[21] Id.

[22] Dickshott v Angelocci, No 241722 (Mich Ct App 2004).

[23] RESTATEMENT (SECOND) OF TORTS § 774B cmt. D (1979) (“[T]here must be proof amounting to a reasonable degree of certainty that the bequest or devise would have been in effect at the time of the death of the testator or that the gift would have been made inter vivos if there had been no such interference.”)

[24] Some plaintiffs are given standing to bring the claim of Intentional Interference with a Gift or Inheritance because the grantor was mentally incompetent. See Marcaccio v Marcaccio, 75 RI 288, 65 A2d 720 (1949) and Dafoe v Dafoe, 160 Neb 145, 69 NW2d 700 (1955).

[25] The value of the property that would have been received had the tort not occurred. In re Estate of Knowlson, 562 N.E.2d 277 (Ill. App. Ct. 1990). But see Paul F. Driscoll, Note, Tortious Interference with the Expectancy of a Legacy: Harmon v. Harmon, 32 Me. L. Rev. 529. Mr. Driscoll argues that the damages should not be the full value of the property that would have been received.

[26] Emotional distress damages can be brought against the tortfeasor only. If the tortfeasor is deceased, then the emotional distress damages cannot be recovered from the tortfeasor’s estate. Carlton v. Carlton, 575 So. 2d 239, 243 (Fla. Dist. Ct. App. 1991).

[27] A Texas court awarded punitive damages in the exact amount of the attorney fees incurred in the will contest. King v. Ackert, 725 S.W.2d 750, 756-57 (Tex. Ct. App. 1987).

[28] If the plaintiff seeks a constructive trust during the grantor’s lifetime, then the remedy may be inappropriate. A court of equity will not put a constructive trust on a mentally incompetent grantor’s property during her lifetime for the benefit of an heir. Chambers v. Kane, 424 A.2d. 311, 316 (Del. Ch. 1980) affd. in part & rev’d in part, 437 A.2d 163 (Del. 1981).

[29] “Damages awarded in a common-law breach of contract action are “expectancy” damages designed to make the plaintiff whole. In Kewin v. Massachusetts Mutual Life Ins Co, 409 Mich. 401, 414; 295 N.W.2d 50 (1980), we explained the usual measure of damages in such an action: Under the rule of Hadley v. Baxendale, 9 Exch. 341; 156 Eng. Rep. 145 (1854), the damages recoverable for breach of contract are those that arise naturally from the breach or that were in the contemplation of the parties at the time the contract was made.” Frank W. Lynch & Co v. Flex Technologies, 463 Mich. 578, 624 N.W.2d 180 (2001).

[30] 166 Mich. App. 483, 421 N.W.2d 213 (1987).

[31] 11 Mich. 542, 554-555 (1863).

[32] Bonelli at 512.

[33] If the grantor is alive, then the plaintiff cannot have an actual legal interest in the grantor’s estate. Instead, the plaintiff has an expectation that the grantor will predecease without consuming the property. See 4 J. Pomeroy, a Treatise on Equity Jurisprudence § 1286 (5th ed. 1941).

[34] Paul F. Driscoll, Note, Tortious Interference with the Expectancy of a Legacy: Harmon v. Harmon, 32 Me. L. Rev. 529 (1980).

[35] Id.

[36] Mieras at 709-710.

[37] Bailey v Graves, 411 Mich 510, 515, 309 NW2d 166 (1981).

[38] Punitive damages are not allowed in Michigan. Kewin v. Massachusetts Mut Life Ins Co, 409 Mich. 401, 295 N.W.2d 50 (80).

[39] Veselenak v .Smith, 414 Mich. 567, 573-574; 327 N.W.2d 261 (1982).

[40] Creek v. Laski, 248 Mich. 425, 227 N.W. 817 (Mich. 1929).

[41] Id.

[42] Id. at 428.

[43. Id. at 432.

[44. In re Green, No 173335 (Mich Ct App 1996)(per curiam).

[45. Id.

[46. Id. at 10.

[47. Id. at 4.

[48. McPeak v McPeak, 457 Mich 311, 577 NW2d 670 (Mich 1998).

[49. Id.

[50. Id. at 313.

[51. McPeak v McPeak, No 176584 (Mich Ct App Mar 18, 1997)(per curiam).

[52. McPeak v McPeak, 457 Mich 311 (Mich 1998).

[53. Dichskott v Angelocci, No 142722 (Mich Ct App June 17, 2004)(per curiam).

[54. Id.

[55. Id. at 18.

[56. Id. at 12.

[57. Id. at 14, 16 and 17.

[58] Id. at 15.

[59] Id. at 18.

[60] MCR 7.215(B)(1). “A court opinion must be published if it establishes a new rule of law.” Id.

[61] MCR 2.116(C)(8).

[[62] Paul F. Driscoll, supra note 24 at 540.

[63] See Carlton v Carlton, 575 So2d 239 (Fla Dist Ct App 1991).

[64] 404 A2d 1020 (Me 1979).

[[65] Id. at 1025.

[66] Id.

[67] The probate court has exclusive jurisdiction to (1) determine all matters related to the settlement of the decedent’s estate, (2) determine the validity of a trust, (3) oversee conservators, guardians and protective proceedings, and (4) supervise the accounts of a fiduciary or instruct a fiduciary concerning an estate within the court’s jurisdiction. MCL 700.1302. A conservator has the authority to employ an attorney to file claims to protect estate property. MCL 700.5423(2)(z)(aa). The court and the conservator must take into account the ward’s estate plan as known to them. MCL 700.5428. Neither the court nor the conservator has a duty to determine the validity of the estate plan.

 

Published in State Bar of Michigan Probate and Estate Planning Journal Summer 2007 Author: Constance L. Brigman.

 

 

 

 

 

 

 

 

Posted On Jan 04

The intersection of the authority of a patient advocate, close relative, or guardian to make medical decisions for another is a confusing area of the law. Under the laws of Michigan, a guardian has more authority to make decisions than a patient advocate who in turn has more authority than a close relative. It is important to understand the limits of each role, particularly when the decision contemplated is whether to admit an individual to long-term care.

Informed Consent and Patient Advocate Designations

The physician-patient relationship is the stage on which every health-care decision is set.1 The patient has a legal right to bodily integrity.2 The physician has an ethical duty to respect the patient’s decisions.3

The doctrine of informed consent dates back to the Enlightenment and social contract theory, a theory that provides that freely given consent makes an act acceptable that otherwise would not be.4 Consent is generally adequate if it explains: (1) the medical problem, (2) the risks and benefits of the recommended intervention, (3) the likely results if the intervention is not attempted, and (4) the risks and benefits of any significant alternatives.5 Physicians are instructed to presume that the patient is able to weigh information against their personal values and make treatment choices.6

Individual Rights of Incompetent Persons

A diminished capacity patient who disagrees with a recommendation is the patient who is most likely to be declared incompetent to make medical decisions.7 When a patient is incompetent to make medical decisions, the state’s parens patriae power grants it authority to appoint a surrogate to make decisions for an incompetent person.8 A state may appoint a guardian through its court system. If that happens, the incompetent person is entitled to prior notice and a hearing.9 Or, a state may enact laws that authorize citizens to appoint a proxy decision maker. 10

Patient advocate designations rely on the law of agency.11 Many patient advocate designations have been signed by patients without the benefit of competent legal advice. If a patient did not know or does not now agree to the terms of their patient advocate designation, the appropriate remedy is for the client to revoke it.12 This means that even an incompetent patient who does not like their advocate’s decisions is free to revoke the patient advocate designation.

Many states, Michigan included, also have consent laws that allow next of kin to make limited decisions in limited circumstances.13 Patient advocates and next of kin surrogates must comply with the patient’s known wishes.14

Guardian versus Patient Advocate

Guardians and patient advocates are not identical in their authority. A guardian is a court-appointed surrogate that takes legal rights and responsibilities from a ward after an adjudication of the ward’s incompetence.15 A patient advocate, on the other hand, acts on behalf of a patient without the benefit of the court appointment.16 Unlike a ward under a guardianship, a patient can revoke a patient advocate designation at any time on the grounds that the patient advocate is not doing what the patient currently wants.17 A court appointed guardian, on the other hand, must be removed on grounds such as failure to properly perform their duties.18

Patient advocates often do not realize that the patient advocate designation does not grant them the authority to independently decide (substituted judgment) what is best for the patient.19 Another misconception is that a patient advocate designation is activated when the patient refuses treatment that the doctor ordered.20 In practice, however, families who agree with the physician’s recommendations are less likely to be challenged on any grounds.21

If a family’s decisions are challenged, the court is not required to give the family’s substituted judgment deference.22 Only the patient possesses the constitutional right that is entitled to due process23 Some states defer to a family’s substituted judgment more than others.24

Patient Advocate Designations and Long-Term Care

Patient advocate designations are sometimes used to place incompetent patients in long-term care. Long-term care is medical care, and thus falls within the scope of a patient advocate designation, so long as it is pursuant to a physician’s plan of care.25 If an incompetent patient refuses long-term care, a guardian may consent to the admission for them.26 A patient advocate, on the other hand, cannot consent to long-term care if the patient refuses it.27

Voluntary Admissions and Long-Term Care

Long-term care admissions are voluntary admissions. The admission is “voluntary” so long as a competent patient, or their legally authorized surrogate, signs the admission agreement.28 If an incompetent patient signs an admission agreement, the admission is not voluntary.29

An involuntary admission of an incompetent patient to a long-term care facility may violate the patient’s due process rights.30 It may also be false imprisonment.31 At a minimum, providing non-emergency health-care without informed consent is negligence.32

A nursing home patient’s rights may be exercised by their legal surrogate.33 However, a surrogate is not legally appointed, if they appoint themselves as patient advocate.34 Some nursing homes mistakenly direct families to complete all admission paperwork, including all advance directives. 35

Limitations: Patient Advocate Designations in Long-Term Care

Standard patient advocate designations do not express long-term care preferences.36 Instead, they express preferences about end of life care.37 Long-term care is partly a personal choice and partly a default exercised by a client’s family when all other care options have failed.38 Therefore, a patient advocate designation is limited in what it can dictate about long-term care.

Limited Specificity

Specific instructions about long-term care boost the authority of a patient advocate. Lack of specific instructions have the opposite effect—an ambiguity about what the patient wanted. A patient advocate designation may include a blanket authorization such as “if my patient advocate cannot determine the choice I would want based on my written or oral statements, she shall choose for me based on what she believes to be in my best interests regardless of whether the specific medical treatment or circumstances is addressed in this document.”39 However, the applicable statute does not authorize giving a patient advocate substituted judgment authority.40 Elderly clients especially should state their preferences about long-term care and affirm their patient advocate’s authority to act in that regard.41

Sound Medical Practice Limitation

Family members may question the patient advocate’s decisions in court.42 Physicians may need to do the same. State law directs physicians to accept the patient advocate’s instructions43 but also directs them to independently decide the patient’s treatment in accordance with sound medical practice.44 This statutory direction may force the physician to ask for a court’s blessing and protection when and if a patient advocate’s decisions are questionably against sound medical practice.45

Patient Refusal

Long-term care facilities do not have staff psychiatrists who can override a patient’s advance mental health directives and forcibly treat a patient. 46 This is a growing problem, since long-term care facilities are admitting more mentally ill residents.47 A patient advocate may have to petition for guardianship in order to provide informed consent for the long-term care of an incompetent patient. Family members are reluctant to petition for guardianship, however, if it will result in a backlash.

Solutions: Patient Advocate Designations in Long-Term Care

Specificity

Long-term care can be specifically addressed in two ways. First, a financial durable power of attorney can nominate a guardian, “If it is necessary to appoint a guardian for me, pursuant to MCL 700.5313(2) I nominate the person named as my patient advocate in my patient advocate designation to serve as my guardian.” Second, a patient advocate designation can specifically state the client’s long-term care priorities. Here are some sample client statements of priorities for long-term care:

Married Client: “I intend to live with my spouse for as long as possible. So long as my care is not an unreasonable burden to my spouse’s health, and my spouse’s care is not an unreasonable burden to my health, I would like us to live in a setting where we can be in the same room and/ or share meals.”

Widow/Widower: “I intend to live near my daughter even if she is no longer able to serve as my patient advocate. If it is necessary for her to sell my home in order to change my residence to be nearby hers, then that is acceptable to me.”

Retirement Village: “I intend to live a quiet life for as long as possible. I wish to avoid the noise and lack of privacy of institutions. It is acceptable to me to exhaust my funds to privately pay for alternatives to institutionalized care for as long as possible.”

Second Marriage: “I realize that my spouse will want to decide my care, including my long-term care, but I want my daughter to make these decisions for me. I hope that my spouse and I can remain together, but if I require personal care assistance, then I want to live with or nearby my daughter. I hope that my spouse will choose to accompany me, but if he does not I wish my daughter to sell my assets as needed to pay for my room, board, personal, and medical care.”

Divestment Avoidance: “Although I dislike the cost of long-term care, I do not wish to be divested of my assets to avoid the cost. Paying for my long-term care affords me alternatives and the kind of independence that I wish to keep.”

The strength of specific long-term care instructions is similar to the strength of a properly drafted and up-to-date tangible personal property list in a will. The weakness of specific long-term care instructions is similar to the weakness of an improperly drafted and out-of-date tangible personal property list in a will.

Sound Medical Practice Limitation

“If my patient advocate and treating physician or psychiatrist cannot agree on a proper treatment, then I wish the dispute to be mediated and a mutually agreed upon third party to select the mediator. I trust that all parties have my best interests at heart and will agree on what is sound medical practice.”

Patient Refusal

“I intend to preserve my loving relationship with my family. If my mental status changes such that I need to stop driving, need supervised personal care, or need daily nursing care that I refuse, I hereby encourage my patient advocate to petition for guardianship. I also hereby request that my physician assist my patient advocate in that regard. I do not want my family to contest a guardianship proceeding initiated by my patient advocate for the purpose of carrying out the instructions provided herein.”

“I do not give my patient advocate the authority to place me in a nursing home at any time or for any reason. If my patient advocate attempts to admit me to a nursing home, then such attempt revokes my patient advocate’s authority. The remainder of my patient advocate designations will remain valid as clear and convincing evidence of my wishes concerning my care, custody, and medical treatment.”

Jurisdiction of Guardianship – Home State

“If a guardianship proceeding is necessary, my home state is Michigan and any absences of any duration to Florida or Arizona are temporary absences only. For the purposes of my long-term care, I want to remain in Michigan with my friends, church family, relatives, trade union, and school alumni. If my patient advocate is unable to serve as my guardian in Michigan, then I request that my patient advocate resign and a successor who is willing and able to serve as a Michigan guardian be appointed as patient advocate and/or guardian instead.”

Conclusion

The purpose of the patient advocate designation is to state the patient’s wishes concerning medical care. Clients may not realize that the term “medical care” may include long-term care. Estate planners can help clients use a patient advocate designation to make thoughtful and realistic plans for their long-term care needs.

Notes

  1. The eight principle from the American Medical Association’s Principles of Medical Ethics: “A physician shall, while caring for a patient, regard responsibility to the patient as paramount.”
  2. A person’s right to bodily integrity arises bath a common law and in the Fifth and Fourteenth Amendments to the U.S. Constitution concerning deprivation of liberty without due process of law.
  3. The Code of Medical Ethics at Opinion 10.01, “Fundamental Elements of the Patient-Physician Relationship,” provides six rights belonging to the patient. The second right is the “right to make decisions regarding the healthcare that is recommended by his or her physician. Accordingly, patients may accept or refuse any recommended medical treatment.” Contrast with “Medical paternalism is the belief that doctors, morally bound to act in their patients’ best interests, should make all crucial health-care decisions for those patients.” John Robinson, “End-of-life legal issues in the United States,” Legal Perspectives in Bioethics 158 (Ana S. Iltis et al, eds., 2008).
  4. Neil C. Manson & Onora O’Neill, Rethinking Informed Consent in Bioethics 1 (2007).
  5. Stephen Wear, “Informed Consent-Patient Autonomy and Physician Beneficence within Clinical Medicine” 6 (Clinical Medical Ethics Vol. 4, 1993).
  6. Id. at 14.
  7. Id. at 113. “[I]n theory competency is an independent variable that determines whether or not the patient’s decision to accept or refuse treatment is to be honored.” citing Loren Roth, et.al. Tests for Competency to Consent to Treatment, 134 Am. J. Psychiatry 282 (1977).
  8. In re Conroy, 486 A2d 1209 (NJ 1985). Compare the parens patriae powers with the state’s police powers: “The state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; the state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill.” Addington v Texas, 441 U.S. 418 (1979).
  9. The purpose of the hearing is to remove legal rights from the prospective ward and give them to the guardian. the guardianship process removes constitutionally protected liberty interests in a probate court proceeding and thus triggers the person’s right to procedural due process.
  10. Federal law requires health-care institutions that receive Medicare or Medicaid funds to give patients a statement of their health care decision-making rights at the time of admission. Patient Self-Determination Act, 42 U.S.C. §§ 1395cc(f), 1396a(w)(1990).
  11. Charles P. Sabatino, The Legal and Functional Status of the Medical Proxy: Suggestions for Statutory Reform, 27:1 J.L., Med. & Ethics 52 (1999). See Table 1. “Decision-Making Process Issues Addressed in Health Care Proxy Laws” (as of April 1999). Id. at 60-61. The original drive for recognizing health-care proxies was the perception that technology provided medical treatment that the patient did not want but was helpless to refuse. Id. at 55.
  12. A patient may revoke a patient advocate designation at any time. MCL 700.5510(d).
  13. Id. at 55. See, e.g. MCL 333.5651 et. seq., which applies to terminally ill patients only. See also, MCL 400.66h that requires a facility to obtain written consent from the nearest relative or legally appointed guardian of an incompetent patient before providing non-emergency medical care to them.
  14. Id. at 54. “Unfortunately, the paradigm is largely fiction. First, most advance directives, by necessity, express only general sentiments. Even those containing great detail require interpretation to apply them to a particular set of circumstances.” Id. at 55.
  15. MCL 700.5306(1) requires the court find by clear and convincing evidence that the individual is incapacitated and that the appointment of a guardian is necessary as a means of providing care and supervision of the incapacitated individual and the appointment of a guardian is necessary as a means of providing care and supervision of the individual. MCL 700.5314(a) provides that the guardian is entitled to the custody of the ward and may determine the ward’s residence in or out of this state.
  16. MCL 700.5508(1) provides that the patient’s attending physician and another physician or licensed psychologist may determine whether the patient is unable to participate in medical treatment decisions. MCL 700.5509(b) provides that a patient advocate shall take reasonable steps to follow the instructions given by the patient while the patient was able to participate in decisions regarding their care, custody, or treatment. Contrast this with MCL 700.5511(1) that provides that the patient advocate must abide by the patient’s current desires without regard to the patient’s ability or inability to participate in care, custody, or treatment decisions.
  17. Compare MCL 700.5510(d) concerning the revocability of a patient advocate designation with MCL 700.5304(5) addressing the due process rights triggered by a guardianship. “Subject to section 5515, even if the patient is unable to participate in medical treatment decisions, a patient may revoke a patient advocate designation at any time and in any manner by which he or she is able to communication an intent to revoke the patient advocate designation.” MCL 700.5510(d). “The individual is entitled to be presented by legal counsel, to present evidence, to cross-examine witnesses, including the court-appointed physician or mental health professional and the visitor, and to trial by jury.” MCL 700.5304(5). Whereas a patient advocate designation does not contain due process procedures such as notice and hearing, it does provide for continuing revocability which protects the patient from coercion.
  18. MCL 700.5310(2) provides that the ward or a person interested in the ward’s welfare may petition for an order removing the guardian. MCL 70.5314 provides that whenever meaningful communication is possible, the guardian must consult with the ward before making a major decision affecting the ward.
  19. The New Jersey Supreme Court allowed a patient’s nephew/guardian the authority to remove a nasogastric feeding tube from an eighty-four-year-old woman in a nursing home because it was clear that she would have refused the treatment under the circumstances. In dicta, the court stated that had the nephew asked for the authority to decide a patient’s treatment without any instructions from the patient, then any decisional authority granted would not be based on a patient’s right to self-determination. “[I]t is naïve to pretend that the right to self-determination serves as a basis for substituted decision-making.” In re Conroy, 486 A2d 1209, 1231 (NJ 1985). The same court allowed the family of a 31 year-old woman in a persistent vegetative state to remove her J-tube that fed and hydrated her. The issue was whether the family could be granted decisional authority where the patient’s advance directives were not clearly known. The family was instructed to consider the patient’s prior statements and personal values to effectuate the decision that the patient would make if she were competent (substituted judgment standard). In dicta, the court instructed that whenever a healthcare professional is uncertain that the family is acting to protect the patient’s best interests, life support should be continued until a guardian is appointed. In re Jobes, 529 A2d 434, 447 (NJ 1987).
  20. In Cruzan, the parent/guardian’s alternative argument was that the state must accept the substituted judgment of close family members in the absence of substantial proof concerning the patient’s wishes. 497 U.S. 261 (1990).
  21. See infra note 7.
  22. 497 U.S. 261, 284 (1990).
  23. “All of the reasons previously discussed for allowing Missouri to require clear and convincing evidence of the patient’s wishes lead us to conclude that the State may choose to defer only to those wishes, rather than confide the decision to close family members.” Id. at 286-287.
  24. Mark A. Hall, et al., Bioethics and Public Health Law, 271 (2005).
  25. MCL 333.20106(1) includes in the definition of a “health facility” nursing homes and homes for the aged. MCL 333.2175(1)(b) provides that a nursing home shall provide a program of planned and continuing medical care under the charge of a physician. MCL 333.20106(3), on the other hand, defines a home for the aged as a facility that provides room, board, and personal care.
  26. See infra. note 14.
  27. See infra. note 15.
  28. “The law presumes that every admission to a nursing home (like every other health-care decision) is based not only on physician’s orders, but also on the informed, competent, and voluntary agreement either of the new resident personally or of the legally authorized decision-maker.” (citations omitted) Marshall B. App, “A Place Like That: Advance Directives and Nursing Home Admissions,” 4 Psychol., Pub. Pol’y, & Law 805, 809 (1998). But see,  Marshall B. Kapp, “The ‘Voluntary Status of Nursing Facility Admissions:Legal, Practical, and Public Policy Implications,” 24 N. Eng. J. on Crim. & Civil Confinement 1, 4 (1998). Incompetent patients who will not pose serious behavior management problems are often times admitted to nursing homes by family members who lack any legal authority to give informed consent for the patient. Id. at 5. The convenient oversight fails if the patient becomes severely cognitively or emotionally impaired and there is no clear or proper authorization to give informed consent for proper treatment. Id. at 8. Nursing homes may be caught in the middle when the “daughter from California” shows up to complain that Dad was not properly cared for and the nursing home’s failure to get a legal surrogate in charge of Dad’s care was the initial problem that led to all other problems. Id. at 11.
  29. Id.
  30. The nexus between Medicare, Medicaid, and private nursing homes may not be sufficient to imply state action if a person were impermissibly admitted as a voluntary resident. Id. at 813. In Zinermon, a mentally incompetent person admitted himself to a state hospital. It was an impermissible involuntary admission because the hospital failed to determine whether the patient had the capacity to admit himself. Zinermon v. Burch, 494 U.S. 113 (1990).
  31. Eric M. Carlson, Long-Term Care Advocacy 10-21 (2004).
  32. Marshall B. App, “Health Care Decisions for the Elderly,” Legal Perspectives in Bioethics 197 (Ana S. Iltis et al., eds., 2008).
  33. 42 CFR 483.10(a)(3)-(4).
  34. An individual 18 years of age or older who is of sound mind at the time a patient advocate designation is made may designate in writing another individual who is 18 years of age or older to exercise powers concerning care, custody, and medical or mental health treatment decisions for the individual making the patient advocate designation. MCL 700.5506(1).
  35. Elizabeth H. Bradley, et al., “Institutional Efforts to Promote Advance Care Planning in Nursing Homes: Challenges and Opportunities,” 25 J.L., Med. & Ethics 150, 154 (1997). “For a formal advance directive to be valid, individuals must sign the form.” Id. at 153. The researchers noted that two factors were associated with not signing one’s own advance directive: cognitive status and educational level. In most cases, the spouse or offspring completed the advance directive for the patient. Id.
  36. The patient advocate designation available from the State Bar of Michigan Elder Law & Disability Rights Section provides that the patient advocate may admit the patient to a hospital or nursing facility and pay for such services with the patient’s funds. (emphasis added) It has three boldfaced sections where the patient makes declarations: life-sustaining treatment, mental health treatment and organ donation. It also includes a “Statement of Wishes” that provides for expressing wishes concerning treatment if terminally ill, permanently unconscious, or under other disability. (visited Apr. 7, 2009) http://www.michbar. org/elderlaw/adpamphlet.cfm#6.
  37. See e.g. Joan C. Von Handorf, Michigan Estate Planning Handbook 25-17 (Carol J. Karr ed., 2d edition 2009). For state-by-state access to advance directives visit http://www.noah-health.org/en/rights/endoflife/adforms.html#Maine.
  38. Kapp, infra. note 26 at 819.
  39. Von Handorf, infra. at note 36. Compare to “the agent, acting as a fiduciary in my best interests and for my welfare, may perform any act and exercise any power with regard to my property and affairs during my disability or incapacity that I could do personally….” Joan C. Von Handorf & Daniel P. Marsh, Michigan Estate Planning Handbook 24-15 (Carol J. Karr ed. 2d edition 2009)(durable power of attorney for finances).
  40. MCL 700.5507(1).
  41. Id.
  42. See e.g. In re Guardianship of Schiavo (Schindler v Schiavo) 780 So2d 176 (Fla 2d DCA 2001). Michael Schiavo was challenged by his wife’s parents, because he wanted to end his wife’s life support. See also, In re Martin, 450 Mich 204, 538 NW2d 399 (1995). Mary Martin was challenged by her husband’s mother and sister, because she wanted to remove her husband’s life support.
  43. MCL 700.5511(2).
  44. MCL 700.5511(3). The healthcare professional must follow sound medical practice. If the patient advocate’s decisions are in compliance with MCL 700.5506-5515, then they are binding. If they are not in compliance, their decisions are not legally binding on a healthcare professional.
  45. MCL 700.5511(5).
  46. Jeffrey W. Swanson, et al. “Overriding Psychiatric Advance Directives: Factors Associate with Psychiatrists’ Decisions to Preempt Patients’ Advance Refusal of Hospitalization and Medication,” 31 Law & Hum. Beh. 77 (2007).
  47. Carla K. Johnson, “AP IMPACT: Mentally ill threat in nursing homes,” Chicago (AP) (Mar. 22, 2009). Nursing homes have seen a 41 percent increase in mentally ill people ages 22 to 64 in a little over five years. “Younger mentally ill people now make up more than nine percent of the nation’s nearly 1.4 million nursing home residents, up from six percent in 2002.” Id.

Published in State Bar of Michigan Probate and Estate Planning Journal, Summer 2009. Author: Constance L. Brigman

Posted On Apr 01

Outdated laws. Michigan House Bill 4248 amends the Michigan Penal Code to make it legal to curse in a woman’s presence.

Every state has outdated laws. Michigan may soon lose two questionable ones. Imagine answering a job application question, “Were you ever convicted of a crime?” with the answer, “Why yes, I was once convicted for using harsh language in an email to a fella who refused to accept my invitation to duel. I had to pay a fine of $750 for the bullying tone of my email.” Perhaps a law regulating “duels” is an outdated one?

Here is the first outdated law that may be repealed in 2015:

Section 173 (MCL 750.173):

Prohibits the use of reproachful language in print for not accepting or fighting a duel; a violation is a misdemeanor. The penalty for a violation was raised from a maximum fine of $250 to a maximum fine of $750 by Public Act 672 of 2002.

Epic duel. VTda.info

Epic duel. VTda.info
Check out this picture and many more at vtda.info/node/563

 

The second outdated law that may be repealed in 2015 makes it a misdemeanor to use insulting language in the presence of a woman or child. Maximum penalty is 90 days in jail or $500:

Section 337 (MCL 750.337):

Prohibits indecent, immoral, obscene, vulgar, or insulting language in the presence or hearing of a woman or child. A violation is a misdemeanor.

Bart Simpson likes free speech

Bart Simpson likes free speech by Buschap. Available on flickr.com.

In People v. Boomer, the Michigan Court of Appeals held that MCL 750.337 is unconstitutionally vague. http://www.michbar.org/opinions/appeals/2002/032902/14457.pdf. 

In the Boomer case, a guy was canoeing on the Rifle River in Arenac County on August 15, 1998. He fell out of his canoe and let loose a string of profanities.  He was one of many canoeists chasing one another and slapping paddles on the water. A deputy heard “vulgar language” and arrested this guy because two children under the age of five were in the area and could hear the foul language. The deputy wrote a citation for violation of MCL 750.337.

So yes, it is socially unacceptable to swear loudly and be vulgar in the presence of children. I wonder how one would enforce such a law if the person swearing loudly in the presence of a child was a woman?

Posted On Jan 02

What is your answer when a family member asks whether the attorney in fact for an elderly person must account to the entire family? Do you ask the family member what he needs to know and whose interests are served when third parties are “kept informed”?

Many family members are disappointed when the attorney in fact does not engage them in shared decision making. This is especially true after the principal has become mentally incompetent. When making decisions, the attorney in fact should take into account the importance that the principal places on the family’s preferences. Like attorneys at law, the attorney in fact has a duty to understand and follow the principal’s wishes. Family members do not always share the principal’s priorities and may demand to be kept informed in an effort to circumvent the principal’s wishes (1). This is especially true when the person becomes disabled. A disabled principal may have needs that are burdensome or disruptive for the family. For example, a principal with cancer may feel pressured to reject radiation therapy because of the time involved and the number of outpatient visits.

On the other end of the spectrum, a family member may be demanding the most aggressive treatment for the principal over the principal’s own objections. The attorney in fact must consider the good, the bad and the ugly of the family’s influence over the principal’s decisions. The principal may direct the attorney in fact to consult with a family member. A family member may not, however, demand that the attorney in fact inform and consult with him because he intends to overrule, exploit or unduly influence the principal.

Unless the durable power of attorney itself requires the attorney in fact to account to third parties, the attorney in fact has no duty to supply reports to family members as State of Michigan law does not require it.

The concept of requiring an attorney in fact to account to third parties is new to many people. Here are ten things that you should know about obtaining an order for an attorney in fact to account:

  1. Michigan law does not require an attorney in fact to supply annual or any other type of periodic accounts. Instead, the attorney in fact has a duty to provide an account on demand. Do not mistake failure to provide periodic accounts as a failure to properly perform fiduciary duties.
  2. Only the principal, a guardian or conservator for the principal, or the court may demand an account from the attorney in fact. Do not mistake failure to account to family members as a breach of a fiduciary duty by an attorney in fact with something to hide.
  3. The attorney in fact does not provide a comprehensive account with income, disbursements and year to year balances for all of the principal’s assets in the same manner as a conservator. Instead, he accounts for actions and transactions. MCL 700.5501(3)(f). He is required to maintain a record of his acts for the principal. If the attorney in fact has no journal of his acts, then it is a breach of a fiduciary duty but it does not signify any damages unless his failure to provide information when asked caused the principal to miss an opportunity to invest, obtain a refund, make a warranty claim, etc. Do not conclude that a ledger and box full of deposit slips, cancelled checks and receipts is a sign that the attorney in fact is not doing his job properly.
  4. After signing an acceptance, an attorney in fact has no dutyto act. If and when he acts, he has a duty to act according to   fiduciary standards. Therefore, the signing of the acceptance   does not denote a date on which the principal has a duty to   account. Do not request an account from an attorney in fact   dating back to the date he signed an Acceptance.
  5. The attorney in fact does not have the authority to deny the principal access to the principal’s assets. Even after the attorney in fact learns that malfeasance has occurred, he does not have a duty to report or intervene. Therefore, the attorney in fact is not required to keep copies of the principal’s bank statements or monitor the principal’s checkbook register. Do not demand that the attorney in fact produce bank statements dating back to the date he signed an Acceptance. He never had a duty to obtain those bank statements in the first place.
  6. An attorney in fact should not be ordered to account in a preliminary protective order. MCL 700.5407(2)(a). Preliminary protective orders are limited by statute. Id. The provisions of the statute do not include issuing an order for an attorney in fact to account to the court or anyone else.
  7. Also, an attorney in fact cannot be ordered to account in a hearing for a protective order. MCL 700.5401. The protective order statute governs, MCL 700.5408, and it does not include issuing an order for an attorney in fact to account.
  8. A probate court cannot order a fiduciary to account under MCL 700.1308(1)(d). MCL 700.1308 applies to court appointed fiduciaries with duties to heirs, devisees, beneficiaries, protected individuals and wards.
  9. When the attorney in fact provides an account pursuant to a court order, it is under MCL 700.1303(1)(j). The probate court has concurrent legal and equitable jurisdiction to require, hear, or settle an accounting of an agent under a power of attorney. The court’s authority is derived from its jurisdiction over the estate of a decedent, protected individual, ward, or trust. (See also, MCL 700.1201 for rules of construction about the purpose of the probate code). The court-appointed fiduciary for the estate demands an account from the attorney in fact.
  10. If an attorney in fact is asked to provide an account that   exceeds the scope of MCL 700.5501(f), he can object and seek   relief under MCR 2.401(A). MCR 2.401(A) provides that the   court, on its own initiative or at the request of the parties,   may hold an early scheduling conference to discuss the purpose of the petition and to set the scope of discovery. The scheduling conference and order are permissive, not mandatory. If the court elects to issue a scheduling order, it is required to include in that order a discovery cut-off date. Thus, MCR 2.401 establishes a date upon which discovery must be complete. Until or unless the court establishes such a date, discovery may continue until an order of the court. An early scheduling conference is important to establishing the timeframe and the extent to which the attorney in fact is required to supply receipts and records.

 

Published in State Bar of Michigan Probate and Estate Planning Journal, Spring 2015. Author: Constance L. Brigman.

 

1) Family members may steer the principal towards making decisions that serve the family member’s purposes over those of the principal in many settings. See, Incorporating Patient and Family Preferences into Evidence-Based Medicine, Laura A Siminoff, BMC Medical Informatics and Decision Making 13 (Suppl 3) (2013). This article is part of a supplement titled “Articles from the Eisenberg Center Conference Series 2012: Supporting informed decision making when clinical evidence and conventional wisdom collide.” The article invites the physician to understand the role that family members play in the patient’s decisions.

 

Posted On Dec 17

This Michigan case decided when a guardian may withdraw life sustaining treatment from a conscious adult patient who is neither terminally ill nor suffering.

Decided August 22, 1995.

In re Martin
, Martin v Martin 
450 Mich 204, 538 NW2d 399


Michigan Supreme Court Opinion
Opinion by Mallett, J. Brickley, C.J., and Cavanagh, Boyle, Riley, and Weaver, JJ., concurred with Mallett, J.
Dissenting opinion by Levin, J.
Calendar No. 10.
Docket No(s) 99699, 99700
Lower Court Docket No(s) 161299, 161431
Disposition: Reversed.
 Mallett, J. | Levin, J. (dissenting).

Mallett, J.
We granted leave in this case to consider whether life-sustaining treatment in the form of a gastrostomy tube that provides nutritive support should be removed from a conscious patient who is not terminally ill or in a persistent vegetative state, but who suffers from a mixture of cognitive function and communication impairments that make it impossible to evaluate the extent of his cognitive deficits. 1 The trial court determined that there was clear and convincing evidence that, before his injuries, Michael Martin “expressed [a medical] preference to decline life-sustaining medical treatment under the circumstances presented .…” 2 The Court of Appeals affirmed the trial court’s determination. 3 After painstaking review of the facts of this case, we reverse the Court of Appeals decision because we conclude that there is not clear and convincing proof that Michael made a firm and deliberative decision, while competent, to decline medical treatment in these circumstances.

[Page 208] As we begin our analysis, we are mindful that the paramount goal of our decision is to honor, respect, and fulfill the decisions of the patient, regardless of whether the patient is currently competent. The decision to accept or reject life-sustaining treatment has no equal. We enter this arena humbly acknowledging that neither law, medicine nor philosophy can provide a wholly satisfactory answer to this question.

To err either way has incalculable ramifications. To end the life of a patient who still derives meaning and enjoyment from life or to condemn persons to lives from which they cry out for release is nothing short of barbaric. If we are to err, however, we must err in preserving life.

I

A
The Court of Appeals opinion presents an accurate and thorough summary of the facts:

Petitioner and Michael Martin were married in 1972 and thereafter had three children. On January 16, 1987, Michael sustained debilitating injuries in an automobile accident, with the most serious being a closed head injury affecting the bilateral hemisphere of his brain. The injuries significantly impaired his physical and cognitive abilities, left him unable to walk or talk, and rendered him dependent on a colostomy for defecation and a gastrostomy tube for nutrition. Petitioner was appointed Michael’s legal guardian and conservator. Michael resided at different nursing homes for the first few years after the accident until July 1990, when he was transferred to the New Medico Neurological Center (NMNC) in Howell, Michigan, where he was still residing at the time of the hearing.

On January 9, 1992, while Michael was being [Page 209] treated at Butterworth Hospital for an obstructed bowel, petitioner contacted the hospital’s bioethics committee for the purpose of determining whether Michael’s life-sustaining medical treatment should be withdrawn. On January 15, 1992, after consulting with petitioner, a family friend, a social worker, Michael’s treating physician, and nurses at Butterworth Hospital, the committee issued a report stating that withdrawal of Michael’s nutritive support was both medically and ethically appropriate, but that court authorization would be required before the hospital would assist in the procedure. None of the personnel at the NMNC and no other members of Michael’s family were consulted or notified by the committee.

On March 19, 1992, petitioner filed a petition in the probate court, requesting authorization to withdraw Michael’s nutritive support. Respondents Leeta Martin and Patricia Major, who are Michael’s mother and sister respectively, opposed the petition and also filed a petition of their own asking that Mary Martin be removed as Michael’s guardian and conservator. An evidentiary hearing was held from October 13, 1992, through October 30, 1992, regarding the petition for authority to withdraw Michael’s nutritive support.

Petitioner said that Michael was a private but active person before the accident. She claimed that he was always bothered by, and intolerant of, people who were disabled or dependent on others and often stated that he would rather die than be dependent on people and machines. According to petitioner, Michael would not want to be kept alive in his present condition. Two co-workers of Michael each testified that he had remarked to them before the accident that he would not want to continue living in a vegetative state. The remark was made to one of the co-workers during a casual conversation around the lunch table and to the other while discussing someone else who had been severely injured. Both co-workers testified that Michael’s present condition is not the type Michael was referring to in the conversations [Page 210] before his accident. Respondent Patricia Major admitted that Michael once told her that he would not want to be kept alive by a respirator if he were in a coma.

Conflicting testimony was presented regarding Michael’s current level of physical, sensory, emotional, and cognitive functioning. At one extreme, Dr. Joseph Fischhoff, who is head of the Department of Psychiatry at Wayne State University and the chairman of the bioethics committee at Children’s Hospital in Detroit, testified that Michael has no voluntary control over any of his limbs, or any ability to function on a voluntary level, and therefore lacks any meaningful interaction with his environment. However, Dr. Robert Kreitsch, who is the director of the Brain Injury Rehabilitation Program at the Mary Free Bed Rehabilitation Center, testified that Michael demonstrated an ability to carry out some voluntary motor commands on his right side, including the ability to pinch and grasp, as well as the ability to recognize faces, respond emotionally, and communicate with others with head nods. According to Dr. Kreitsch, Michael seemed content with his environment and indicated “no” with a head nod when asked whether he has been in any pain or discomfort, and also when asked if there were ever any times when he felt that he did not want to go on living. Other medical experts also presented differing opinions regarding Michael’s level of functioning, but generally described it as falling somewhere between that described by Drs. Fischhoff and Kreitsch. All medical experts agreed that Michael was not in a persistent vegetative state or terminally ill.

Petitioner, several therapists from the NMNC, and several lay witnesses all described an apparent limited ability by Michael to interact with others and to respond to simple yes or no questions with head nods; their testimony varied, however, with respect to the consistency and appropriateness of the perceived interaction and responses. The trial judge personally visited and questioned [Page 211] Michael at the NMNC on October 14, 1992. The judge explained on the record how Michael had moved both his right arm and right leg on command, and how he had responded with appropriate head nods to a series of yes or no questions. Witnesses also testified that there are times when Michael becomes completely withdrawn and does not respond to any stimuli.

In a decision delivered from the bench on October 30, 1992, the trial court ruled that clear and convincing evidence had been presented that Michael did not want to be “kept a dependent person” and that his present condition “falls within what Michael did not want to be.” Nonetheless, the court held that Michael’s intentions could not be considered because they were not expressed in writing. The trial court further ruled that withdrawal of nutritive support was in Michael’s best interests, but that, absent being terminally ill, a best interests standard could not be applied as a matter of law. Accordingly, the trial court denied the petition for authority to withdraw Michael’s nutritive support. The trial court then proceeded to also deny respondents’ petition for removal of Mary Martin as Michael’s guardian and conservator. The court concluded that her “decision-making process” relative to the decision to withdraw life-sustaining medical treatment was not inappropriate. Motions for reconsideration brought by both sides, including a request by respondents for specific factual findings, were thereafter denied. [200 Mich App 703, 706-710; 504 NW2d 917 (1993).]

The Court of Appeals remanded the case “for further and more specific findings of fact and conclusions of law regarding Michael’s decision-making capacity … [,] present condition or his present level of physical, sensory, emotional, and cognitive functioning.” Id. at 717-718.

On remand, additional evidence and medical testimony were presented to the trial court. The [Page 212] Court of Appeals aptly summarized the hearing testimony as follows:

According to Dr. William Vandenberg, a physical medicine and rehabilitation specialist who works extensively with head-injured patients, Michael can understand only very short and very simple questions and cannot accurately comprehend questions that are lengthy, verbose, or that require the retention of multiple thoughts. Similar testimony was provided by Dr. Donald Rutherford, who is the medical director at the Glenwood Christian Nursing Home where Michael resides. Dr. Robert Kreitsch, who was one of respondents’ main experts, likewise described Michael’s levels of cognition and comprehension as being limited to “very, very simple terms” and “some simple short phrases.” According to Dr. Kreitsch, given Michael’s memory deficiencies and inability to retain information, Michael is incapable of processing the necessary information to fully understand his condition. Drs. Vandenberg, Rutherford, and Kreitsch uniformly agreed that Michael does not possess the requisite capacity to satisfy the four-part test for evaluating decision-making capacity.

This same conclusion was also reached by Dr. Ronald Cranford, a neurologist, whose testimony was accorded significant weight by the trial court. Dr. Cranford provided detailed testimony describing not only Michael’s condition and level of functioning from a medical standpoint, but also the process involved in assessing Michael’s cognitive capabilities during a recent evaluation. Dr. Cranford’s evaluation demonstrated that, consistent with the testimony of the other medical experts, Michael possesses an ability to understand some simple questions concerning basic and familiar items, although even then his responses are not always consistent, but that he lacks an understanding of more complex items, including his physical capabilities and medical condition.

Although one of respondents’ experts, Dr. Walter Zetusky, a neuropsychologist, testified that he [Page 213] evaluated Michael in 1990 and determined that he had an intelligence quotient of sixty-three, thus placing him at a higher level of cognitive functioning than that described by the other medical experts, the trial court accorded little probative value to the IQ testing. Significantly, the trial court noted that other medical experts questioned the validity of any IQ testing of Michael, and, further, that another expert, Dr. David Winstrom, in fact attempted to perform similar testing on Michael in April 1993, but was unable to do so, given Michael’s inability to respond at a sufficient level to permit testing. More importantly, the trial court observed that not even Dr. Zetusky was able to provide unqualified testimony indicating that Michael has sufficient capacity to satisfy the four-part test for evaluating decision-making capacity.

Finally, it was the general consensus among the medical experts that Michael’s condition and cognitive level of functioning will not improve in the future.
* * *
Testimony was received from respondent Major as well as two of Michael’s former co-workers describing statements made by Michael before his accident wherein he expressed a preference not to be maintained in a coma or in a vegetative state. The trial court found … that Michael’s present circumstances do not conform to those described by Michael when making those prior statements. However, testimony was also received from petitioner, who described numerous statements that were made to her by Michael before his accident, on different occasions and in different settings and contexts, all expressing a preference not to be maintained under various described circumstances. According to petitioner, Michael was adamant and made it very clear that he did not want to be kept alive in the circumstances described. The trial court found that the statements were sufficient in detail to establish Michael’s previously expressed preference to decline life-sustaining medical treatment under the present circumstances. …

[Page 214] Prevalent throughout Michael’s statements is the preference not to be maintained in a condition where he was incapable of performing basic functions such as walking, talking, dressing, bathing, or eating, and, instead, was dependent upon others or machines for his basic needs. …

Michael’s discussions also reveal an express preference not to be maintained by machines in order to be kept alive. [205 Mich App 96, 100-104; 517 NW2d 749 (1994).]

On remand, after evaluating the evidence, the trial court found that the petitioner had demonstrated by clear and convincing evidence that, before his injuries, Mr. Martin expressed a medical preference to decline life-sustaining medical treatment under the circumstances presented. 4 The Court of Appeals concluded that, before his injuries, Mr. Martin specifically described circumstances under which he would decline life-sustaining medical treatment. 5 It stated that Mr. Martin’s present condition fit squarely within the parameters that Mr. Martin specifically described. 6 Therefore, it held that the trial court’s determination was not clearly erroneous. 7

B
Although this case essentially concerns whether the appropriate evidentiary burden of proof has been met to support the lower courts’ findings, the evidentiary issue may not be reached without first ascertaining whether the patient has a right to refuse life-sustaining medical treatment, and, if so, [Page 215] whether a surrogate decisionmaker may exercise that right for a patient who is no longer able to do so for himself. After determining the extent of the right to decline life-sustaining medical treatment, we must decide how the surrogate is to effectuate the incompetent patient’s decision, discern the appropriate evidentiary standard of proof, and determine whether the evidentiary standard has been satisfied in this case.

II
A
The right to decline life-sustaining treatment has been based on constitutional, common-law, and statutory sources. The Court of Appeals in In re Rosebush , 195 Mich App 675, 680; 491 NW2d 633 (1992), delineated the three sources of the right as follows:

(1) the common-law right to freedom from unwanted interference with bodily integrity,
(2) the constitutional right to privacy or liberty, or
(3) statute.

By deciding that Michigan recognizes “a right to withhold or withdraw life-sustaining medical treatment as an aspect of the common-law doctrine of informed consent,” the Rosebush Court found it “unnecessary to decide the validity of the constitutional or statutory bases in Michigan.” Id. at 680, n 1. As a prominent commentator in this area has noted, “the legal basis for the right to die is not important because courts have not made the scope of the right depend on whether or not the source is common-law[, statutory,] or constitutional.” [Page 216] Meisel, The Right to Die, § 3.4, p 50. 8 Because the evidentiary and decision-making standards appropriate in a given case do not depend on the source of the right, we need only ground the right in one source.

We agree with the Rosebush Court that a necessary corollary of the common-law right to informed consent is the right not to consent. 9 See Cruzan v Director, Missouri Dep’t of Health, 497 US 261, 270; 110 S Ct 2841; 111 L Ed 2d 224 (1990); Werth v Taylor, 190 Mich App 141; 475 NW2d 426 (1991); In re Conroy, 98 NJ 321, 346-348; 486 A2d 1209 (1985); Meisel, supra, § 3.3, p 47, n 20. As noted by the Arizona Supreme Court:

The purpose underlying the doctrine of informed consent is defeated somewhat if, after receiving all information necessary to make an informed decision, the patient is forced to choose only from alternative methods of treatment and precluded from foregoing all treatment whatsoever. [ Rasmussen v Fleming, 154 Ariz 207, 216; 741 P2d 667 (1987).]

[Page 217] Thus, because we find that the common-law doctrine of informed consent allows a person to refuse life-sustaining treatment, we also decline the invitation to reach the propriety of the constitutional and statutory issues in this case.

Given that a competent patient may decide to refuse medical treatment, the next inquiry is whether a decision to refuse medical treatment under the particular circumstances, made while competent, should be honored when the patient is incompetent. 10 Other jurisdictions that have addressed this question have unanimously concluded that a decision to refuse medical treatment in future situations, made while competent, is not lost because of incompetency or the inability to communicate. See Rasmussen, supra at 219; In re Eichner v Dillon, 73 AD2d 431, 470; 426 NYS2d 517 (1980) (“To deny the exercise because the patient is unconscious is to deny the right”); Conroy, supra at 359-361. We wish to make clear that we are deciding only that to the extent the right to refuse medical treatment “refers to decisions already made and communicated by the patient before losing the capacity to make further choices, … it is true that the patient’s interest in having those choices honored must survive incapacity.” Bopp & Avila, Perspectives on Cruzan: [Page 218] The sirens’ lure of invented consent: A critique of autonomy-based surrogate decisionmaking for legally-incapacitated older persons, 42 Hastings L J 779, 806 (1991).

A third person must implement an incompetent patient’s previously expressed decisions. Michigan’s patient advocate act, MCL 700.496; MSA 27.5496, supports allowing a third person to execute the decisions of patients who are no longer able to effectuate those decisions for themselves. Pursuant to the patient advocacy act, 11 a currently competent person designates a surrogate, the patient advocate, to make treatment decisions in the event the patient is incapacitated. A proper designation allows a third person to execute the patient’s treatment decisions, even if the decision will result in death, provided the patient is in the condition delineated in the patient advocate designation. [emphasis added by Connie]

III
Having concluded that a person’s right to refuse life-sustaining medical treatment survives incompetency and may be discharged by a surrogate decisionmaker, we now address how the surrogate effectuates the incompetent patient’s decision.

While the facts of this case present an issue of first impression in Michigan, we find guidance in the decisions of our sister states that have addressed the possible surrogate decision-making standards.

Courts have created “two traditional [decision-making] standards for guiding guardians in carry- [Page 219] ing out their responsibilities: the best interests standard and the substituted judgment standard.” Meisel, supra, § 9.6, p 264. 12

The best interest standard 13 is an objective analysis under which the benefits and burdens to the patient of treatment are assessed by the surrogate in conjunction with any statements made by the patient if such statements are available. Conroy, supra at 360-368. The best interest analysis is generally invoked, if at all, only as a secondary approach when subjective evidence of a particular patient’s decision is lacking because it involves a qualitative assessment of the patient’s condition, a decision the state may legitimately decline to make. Cruzan, supra at 282.

The substituted judgment standard has subjec- [Page 220] tive and objective components. Through this standard, the surrogate attempts to ascertain, with as much specificity as possible, the decision the incompetent patient would make if he were competent to do so. The surrogate first determines whether the patient, while competent, explicitly stated his intent regarding the type of medical treatment in question. In re Westchester Co Medical Center, 72 NY2d 517; 534 NYS2d 886; 531 NE2d 607 (1988). Where there is no explicit evidence of what the patient would choose, the surrogate may still decide to terminate treatment on the basis of evidence of the patient’s “value system.” In re Longeway Estate, 133 Ill 2d 33, 49; 549 NE2d 292 (1989). The surrogate should determine the patient’s “value system” through an assessment of the patient’s behavior during the time he was competent

“including his or her philosophical, religious and moral views, life goals, values about the purpose of life and the way it should be lived, and attitudes toward sickness, medical procedures, suffering and death .…” [ In re Jobes, 108 NJ 394, 415; 529 A2d 434 (1987), quoting Newman, Treatment refusals for the critically ill: Proposed rules for the family, the physician and the state, III NY L S Human Rights Annual 45-46 (1985).]

Courts have generally acknowledged that the substituted judgment standard entails some level of objective analysis. Conroy, supra at 363-364. For this reason, commentators, as well as many judges, have forcefully assailed the substituted judgment standard as a legal fiction that in reality substitutes the surrogate’s decision to withdraw treatment for that of the patient. See Bopp & Avila, supra; Cruzan, supra at 285; DeGrella v Elston, 858 SW2d 698, 710-711 (Ky, 1993) (Lambert, J., [Page 221] concurring); In re Longeway Estate, supra at 55 (Ward, J., dissenting) at 65 (Clark, J., dissenting).

Rather than choose between the best interest standard and the substituted judgment standard, the New Jersey Supreme Court attempted to synthesize these two standards by creating an hierarchical decision-making continuum. Conroy, supra. The starting point on the continuum is anchored by a purely subjective analysis, an approach that requires more definitive evidence of what the patient would choose than the substituted judgment standard. The other end of the continuum is anchored by a purely objective analysis, which is, in essence, a best interest standard.

We find that a purely subjective analysis is the most appropriate standard to apply under the circumstances of this case. The pure subjective standard allows the surrogate to withhold life-sustaining treatment from an incompetent patient “when it is clear that the particular patient would have refused the treatment under the circumstances involved.” Conroy, supra at 360. Given that the right the surrogate is seeking to effectuate is the incompetent patient’s right to control his own life, “[t]he question is not what a reasonable or average person would have chosen to do under the circumstances but what the particular patient would have done if able to choose for himself.” Id. at 360-361. The patient’s statements, made while competent, must illustrate “a firm and settled commitment to the termination of life supports under the circumstances like those presented.” In re Westchester, supra at 531.

The subjective and objective standards involve conceptually different bases for allowing the surrogate to make treatment decisions. The subjective standard is based on a patient’s right to self-determination, while the objective standard is grounded [Page 222] in the state’s parens patriae power. Conroy, supra, Cruzan v Harmon, 760 SW2d 408 (Mo, 1988). An objective, best interest, standard cannot be grounded in the common-law right of informed consent because the right and the decision-making standard inherently conflict. The Illinois Supreme Court recently explained this conflict:

The problem with the best-interests test is that it lets another make a determination of a patient’s quality of life, thereby undermining the foundation of self-determination and inviolability of the person upon which the right to refuse medical treatment stands. [ In re Longeway Estate, supra at 49.] 14

Thus, while the facts of the present case do not require that we decide whether the state’s parens patriae authority may be expansive enough to encompass a best interest analysis, we do note that such an analysis cannot be based on the common-law right of informed consent.

Although respondent accurately notes that the Florida Supreme Court in In re Guardianship of Browning, 568 So 2d 4, 13 (Fla, 1990), believed that the common-law right of self-determination “cannot be qualified by the condition of the patient,” any move from a purely subjective standard to an analysis that encompasses objective criteria is grounded in the state’s parens patriae power, not in the common-law right of informed consent or self-determination. Thus, while the clearly expressed wishes of a patient, while competent, should be honored regardless of the patient’s condition, we find nothing that prevents the state [Page 223] from grounding any objective analysis on a threshold requirement of pain, terminal illness, foreseeable death, a persistent vegetative state, or affliction of a similar genre.

While the circumstances of some cases have led courts to progress along the decision-making continuum and apply tests that encompass more objective criteria, see Conroy and Rosebush, supra, the facts of this case do not present us with that situation. In the cases that have applied a more objective test or suggested that an objective test would be proper, the patient generally has been comatose or in a persistent vegetative state, In re Jobes, supra; In re Torres, 357 NW2d 332 (Minn, 1984) (terminally ill); In re Guardianship of Barry, 445 So 2d 365 (Fla App, 1984) (experiencing great pain); Conroy, supra at 365 (very limited life expectancy); In re Rosebush, supra (never been competent or able to express her wishes or desires). 15 In this case, Michael’s life and health are not threatened by infirmities of this nature. Because he was competent and able to express his wishes and desires, we decline to move along the continuum from the subjective standard. 16

[Page 224] In all cases where the courts have been persuaded that the patient, while competent, made clear and convincing statements that he would reject treatment under the circumstances at issue, the patient’s decision has been honored, regardless of whether the patient is currently competent. The Kentucky Supreme Court recently noted that all but Missouri 17 and New York 18 would allow treatment to be withdrawn under a substituted judgment standard even where the express wishes of the patient are unclear. DeGrella, supra.19 Missouri and New York only allow treatment to be withheld when it is clear that the particular patient, while competent, expressly decided to reject treatment in the circumstances presented. In re Westchester, supra at 531-532; Cruzan v Harmon, 760 SW2d 426.

The subjective standard has been attacked as possibly creating too stringent a standard, inhu- [Page 225] manely condemning a patient to a “prolonged and painful death,” Conroy, supra at 364, however, the facts of this case do not dictate that we progress beyond a purely subjective standard, and we refuse to do so. We cannot stress too strongly that the complexity and ramifications of any decision in this area caution against moving too swiftly or adopting controversial decision-making standards in cases that do not present facts compelling such decision. The right of informed consent extends only to the decisions this particular patient has made. Any objective analysis is not encompassed within the right of informed consent. As we noted at the outset, if we are to err, we must err in preserving life. Our first step in this area must be a careful one.

IV
Having concluded that a surrogate may make treatment decisions for a patient who is unable to do so on the basis of that specific patient’s statements made while competent, we must now decide the evidentiary standard of proof those statements must meet before the surrogate is allowed to effectuate them.

Proof may be required by a preponderance of the evidence, by clear and convincing evidence, or beyond a reasonable doubt. The predominant evidentiary standard chosen by the courts that have addressed this question, however, is clear and convincing evidence. Meisel, supra, § 8.38, p 254. In affirming the Missouri Supreme Court’s choice of the clear and convincing evidence standard, the United States Supreme Court explained why the clear and convincing evidence standard should be chosen over the preponderance standard.

[Page 226] We think it self-evident that the interests at stake in the instant proceedings are more substantial, both on an individual and societal level, than those involved in a run-of-the-mine civil dispute. [ Cruzan, 497 US 283.]

Because the party who bears the more stringent burden of proof also bears a greater risk of an adverse decision, the Court found it proper to place an increased risk of an erroneous decision on those seeking to terminate an incompetent individual’s life-sustaining treatment. An erroneous decision not to terminate results in a maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient’s intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw life-sustaining treatment, however, is not susceptible of correction. [ Id.]

Litigants also have argued for adoption of the “beyond-a-reasonable-doubt standard,”20 although no court has embraced this stringent of a standard. Meisel, supra, § 8.38, p 254. Generally, “the ‘beyond a reasonable doubt’ standard historically has been reserved for criminal cases,” and the Supreme Court has cautioned against “apply[ing] it too broadly or casually in noncriminal cases.”Addington v Texas, 441 US 418, 428; 99 S Ct 1804; 60 L Ed 2d 323 (1979). Because the decision to refuse life-sustaining treatment is not a punitive exercise of the state’s authority, we agree that the [Page 227] criminal standard “is inappropriate in cases where the purpose of granting the relief is to give effect to an individual’s right by carrying out his stated intentions.” In re Storar, 52 NY2d 363, 379; 420 NE2d 64 (1981).

We agree that the clear and convincing evidence standard, the most demanding standard applied in civil cases, 21 is the proper evidentiary standard for assessing whether a patient’s statements, made while competent, indicate a desire to have treatment withheld. 22 Evidence is clear and convincing when it “produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.”… Evidence may be uncontroverted, and yet not be “clear and convincing.”… Conversely, evidence may be “clear and convincing” despite the fact that it has been contradicted. [ In re Jobes, supra at 407-408.]

Among the factors identified as important in defining clear and convincing evidence, see In re Westchester, supra; Eichner, supra, the predomi- [Page 228] nant factor is “a prior directive in which the patient addresses the situations in which the patient would prefer that medical intervention cease.” Cantor, Legal Frontiers of Death and Dying, ch 3, p 64. Optimally, the prior directive would be expressed in a living will, patient advocate designation, or durable power of attorney. While a written directive would provide the most concrete evidence of the patient’s decisions, and we strongly urge all persons to create such a directive, we do not preclude consideration of oral statements, made under the proper circumstances. [emphasis added by Connie]

The amount of weight accorded prior oral statements depends on the remoteness, consistency, specificity, and solemnity of the prior statement. Conroy, supra at 362. The decisionmaker should examine the statement to determine whether it was a well thought out, deliberate pronouncement or a casual remark made in reaction to the plight of another. In re Westchester, supra at 529. Statements made in response to seeing or hearing about another’s prolonged death do not fulfill the clear and convincing standard.

If such statements were routinely held to be clear and convincing proof of a general intent to decline all medical treatment once incompetency sets in, few nursing home patients would ever receive life-sustaining medical treatment in the future. The aged and infirm would be placed at grave risk if the law uniformly but unrealistically treated the expression of such sentiments as a calm and deliberative resolve to decline all life-sustaining medical assistance once the speaker is silenced by mental disability. [ Id. at 532.]

While the degree of similarity between the physical conditions contemplated in the patient’s prior statement and the patient’s current physical situa- [Page 229] tion also partakes of the fiction of substituted judgment, we do not exclude it as a factor to be considered in assessing the probative value of the prior statement. Only when the patient’s prior statements clearly illustrate a serious, well thought out, consistent decision to refuse treatment under these exact circumstances, or circumstances highly similar to the current situation, should treatment be refused or withdrawn. In all events, the proofs in sum must meet the exacting standard of clear and convincing evidence.

V
In the present case, appellants claim that Mr. Martin expressed a preaccident statement that he did not want to live like a vegetable. However, our review of the record reveals that virtually all the witnesses agreed that Mr. Martin is not in a vegetative state and is not suffering from the type of incapacitation referenced in his expression of a desire not to continue life-sustaining medical treatment.

Appellants argue that Mary Martin’s uncorroborated affidavit and trial testimony do not constitute clear and convincing evidence of Mr. Martin’s preinjury desire to refuse hydration and nutritive support. Appellants argue that, assuming Mary Martin’s statements are truthful representations of statements made by Mr. Martin, the remarks,

if truly made to the Guardian, were remote in time and place from his present circumstances. At the time the remarks were supposedly made, Michael was young and healthy. The remarks were general, vague and casual, because Mr. Martin was not presently experiencing and likely never had experienced the form of “helplessness” he supposedly disliked, and thus, he could not bring [Page 230] to bear his specific views about specific circumstances of which he was intimately knowledgeable. Not being informed by his actual experience, Michael’s purported remarks thus were “no different than those that many of us might make after witnessing an agonizing death of another.” [Citation omitted.]

Appellee responds that there was no evidence that Mr. Martin’s decision regarding prolonged existence on artificial life support has ever changed. Thus, appellee argues that a competent person’s strongly held and well thought out decisions about treatment, if proven by clear and convincing evidence, should not be superseded without equally clear and convincing evidence that the person, now incompetent, understands his condition and has changed his mind about previously expressed treatment desires.

Our review of the lower court records reveals that, in determining whether clear and convincing evidence was presented to establish that Mr. Martin had previously expressed a preference to decline life-sustaining medical treatment under the present circumstances, the trial court relied on petitioner’s testimony and supporting affidavit in which she stated:

Discussions between Mike and me regarding what our wishes would be if either of us was ever involved in a serious accident, had a disabling or terminal illness or was dying of old age, began approximately eight years ago. These discussions occurred on many different occasions. As I indicate below, several were triggered by movies which we saw together. Mike’s position was always the same: he did not want to be kept alive on machines and he made me promise that I would never permit it.

Some of the conversations that we had about [Page 231] medical care in this context occurred after we watched movies about people who no longer were mentally competent either due to illness, accident, or old age; others involved people who could no longer do anything for themselves, such as persons who lived in a nursing home and could no longer feed or dress themselves and needed to wear diapers or have other measures taken to continue existing. Mike stated to me on several occasions: “That’s bullshit, I would never want to live like that.” He also said to me, “Please don’t ever let me exist that way because those people don’t even have their dignity.” I always agreed with Mike because I felt the same way.

One movie that always triggered such discussions was “Brian’s Song” which, I recall, is a movie about a football player with a terminal illness. Mike said to me after we saw it together: “If I ever get sick don’t put me on any machines to keep me going if there is no hope of getting better.” He also said that if I ever put him on machines to keep him alive: “I’ll always haunt you, Mary.” Then he would say, “Do you understand?” I always said “Yes.” We watched this movie at least two or three times and had virtually the same discussion each time.

Some movies that triggered our discussions were about accidents—car accidents, hunting accidents or other accidents near home or in water. Mike was an avid hunter and frequently expressed concerned [sic] about a hunting accident. Mike frequently told me that if he ever had an accident from which he would “not recover” and “could not be the same person,” he did “not want to live that way.” He would say, “Mary, promise me you wouldn’t let me live like that if I can’t be the person I am right now, because if you do, believe me I’ll haunt you every day of your life.” I stated my promise to him and made him promise me the same.

Mike also made a lot of comments to me about never wanting to live “like a vegetable.” He said that if anyone had to live like a vegetable, [Page 232] “their families and doctors should be shot for forcing someone to live like that.” He would say, “I’d be pissed if I had to live that way.” He also told me that he believed it was unfair to the person who had to be kept alive on machines because that person would always be in pain. He told me that “no one should have to be kept alive if they would never get well again.”

December 1986 was the last time that I remember discussing this subject with Mike. I was having surgery on New Years’ Eve Day and we discussed our wishes if either of us was severely incapacitated. The impending surgery prompted me to tell Mike of my wishes not to be maintained artificially. Mike then told me that he would respect my wishes and he expected the same in return if anything ever happened to him.

I am certain that were Mike able to speak today, he would direct that the artificial life support and antibiotic treatments be withdrawn so that he might die in a dignified manner consistent with his explicit wishes expressed to me prior to the accident. It is time that my husband be freed from the ghastly, demeaning existence which he so strongly opposed.

I know that Mike spoke with some of his co-workers about his disdain for being maintained by artificial means of life support. One of those co-workers, Warren Hawley, specifically discussed this with me at the time Mike was admitted to the Grand Valley Nursing Home.

This testimony and affidavit cannot be viewed in a vacuum. There was also testimony from two of Mr. Martin’s co-workers, stating that Mr. Martin’s present condition is not the type referred to in conversations with them before his injury. Dr. Kreitsch testified that Mr. Martin seemed content with his environment. Dr. Kreitsch, several therapists, and several lay witnesses testified that Mr. Martin could respond to simple yes or no questions by nodding his head. They also testified that he [Page 233] indicated a no response when asked if he ever felt that he did not want to continue living.

We do not believe that the testimony and affidavit of Mary Martin, Mr. Martin’s wife and guardian, constitute clear and convincing evidence of Mr. Martin’s preinjury statement of his desire to refuse life-sustaining medical treatment under these specific circumstances. We are not satisfied that the evidence is “so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” Cruzan, 497 US 285, n 11. Thus, the clear and convincing evidence standard has not been satisfied. 23

In the absence of clear and convincing evidence of Mr. Martin’s preinjury statement expressing his decision to refuse life-sustaining medical treatment under the present circumstances, we will not authorize the removal of life-sustaining medical treatment. Our determination is consistent with the furtherance of this state’s interest in preserving the sanctity of life and does not abridge Mr. Martin’s right to refuse life-sustaining medical treatment.

CONCLUSION

We hold that, once it is determined that the individual is conscious and was competent at some [Page 234] time before his present injuries were sustained, a surrogate decisionmaker cannot make a decision for or in place of a conscious incapacitated individual regarding his decision to waive the right to continue life-sustaining medical treatment. However, where the surrogate decisionmaker can establish by clear and convincing evidence that the conscious incapacitated individual, while competent, made a statement of his desire to refuse life-sustaining medical treatment under these circumstances, then the surrogate must be allowed to effectuate the incapacitated individual’s expressed preference. In the absence of clear and convincing evidence of the conscious incapacitated individual’s preinjury statement expressing his decision to refuse life-sustaining medical treatment under the present circumstances, courts will not authorize the removal of life-sustaining medical treatment.

Accordingly, we reverse the Court of Appeals determination because petitioner’s testimony and affidavit do not constitute clear and convincing evidence of Mr. Martin’s preinjury decision to decline life-sustaining medical treatment in the form of a gastrostomy tube that provides hydration and nutritive support.

We do not retain jurisdiction.

Brickley, C.J., and Cavanagh, Boyle, Riley, and Weaver, JJ., concurred with Mallett, J.

FOOTNOTES
1 447 Mich 980 (1994).
2 205 Mich App 96, 98-99; 517 NW2d 749 (1994).
3 Id. at 112.
4 205 Mich App 98-99.
5 Id. at 104.
6 Id.
7 Id. at 102, 105-106.
8 Whether a patient’s prerogative to spurn life-preserving treatment is grounded on constitutional privacy or on the common law doctrine of informed consent, the object remains to honor individual dignity by promoting self-determination and choice. [Cantor, Legal Frontiers of Death and Dying, ch 3, p 63.]
9 While the patient’s right to refuse life-sustaining medical treatment is not absolute and must be balanced against the countervailing interests of the state, see Meisel, supra, 1993 cum supp, § 3.2, p 24; Cruzan v Director, Missouri Dep’t of Health, 497 US 261, 280-281, 283; 110 S Ct 2841; 111 L Ed 2d 224 (1990), by concluding that clear and convincing evidence is necessary to establish what the patient did decide, and finding such evidence lacking in this case, we need not address the interaction between the state’s interest and a patient’s decision to forgo treatment.
The state’s interest is in the preservation of life. Given the absence of clear and convincing evidence about what Michael would do in this case, the state’s interests and Michael’s interest are not in conflict, and therefore no balancing is necessary.
10 While both the petitioner and the respondent urge us to decide whether Michael’s current actions express a present desire to accept treatment to the extent that he has repudiated any previous decision, we need not reach this question because we find that Michael’s previous statements do not clearly and expressly demonstrate that he would want treatment withheld under these circumstances. Although we question the standard the Court of Appeals applied to determine that Michael was unable to express a current desire to accept treatment, for purposes of this case we accept the lower courts’ determinations that Michael is incompetent to make medical treatment decisions. The standard created by the Court of Appeals, in application, is equivalent to a general competency standard, a standard that has generally been rejected. See Meisel, supra, § 2.17, pp 31-32.
11 We are careful to note that Michael did not designate a patient advocate pursuant to the act because his injury occurred nearly four years before this legislation was enacted. We express no opinion about how the act and its provisions should be interpreted because that question is not before us.
12 Contrary to a growing misconception, see DeGrella v Elston, 858 SW2d 698 (Ky, 1993); In re Rosebush, supra at 688, n 7; In re Fiori, 438 Pa Super 610, 651; 652 A2d 1350 (1995); Meisel, supra, 1993 cum supp, § 10A.2, p 284, we view the clear and convincing standard not as a decision-making standard, but as an evidentiary standard of proof that applies to all decisions regarding termination of treatment, regardless of the decision-making standard employed. In right to die cases, if intent to withdraw life prolonging medical procedures is determinative of the case, then there must be “clear and convincing evidence” of that intent. If “best interests” of the patient is determinative of the case, then there must be “clear and convincing evidence” that discontinuance of medical procedures best serves the interests of the patient. [Gorby, Admissibility and weighing evidence of intent in right to die cases, 6 Issues in Law & Medicine 33, 43 (1990).]
13 The Conroy court separated the best interest standard into two separate strands: the “limited objective” standard and the “pure objective” standard. The limited objective standard first examines any statements made by the patient that do not amount to clear and convincing evidence, as required by the pure subjective standard, and incorporates an objective assessment of the benefits and burdens to the patient of continued treatment. Id. at 365-366. Under the pure objective standard, treatment may be withdrawn where the burdens of treatment clearly outweigh any benefits to the patient. Id. Given that both these standards employ objective criteria, factors we decline to address under the facts of this case, the differences between these two standards are not relevant.
14 See also Conroy, supra at 364, in which the court stated that “in the absence of adequate proof of the patient’s wishes, it is naive to pretend that the right to self-determination serves as the basis for substituted decision-making.”
15 We express no opinion about the proper decision-making standard for patients who have never been competent, patients existing in a persistent vegetative state, patients who are experiencing great pain, or patients who are terminally ill. If a patient has any of these conditions, or ailments of a similar nature, a more objective approach may be necessary and appropriate. The facts of each case present unique circumstances, and it would be unrealistic for us to attempt to establish a rigid set of guidelines to be used in all cases requiring an evaluation of a now-incompetent patient’s previously expressed wishes. The number and variety of situations in which the problem of terminating artificial life supports arises preclude any attempt to anticipate all of the possible permutations. [ In re Westchester, supra at 529-530.]
16 Even if a test involving objective criteria were applicable in this case, the objective criteria would only strengthen our decision that nutrition and hydration should continue to be provided. As the court in Conroy, supra, noted the burdens to the patient could only outweigh the benefits of continued treatment if the patient is suffering, and will continue to suffer throughout the expected duration of his life, unavoidable pain, and that the net burdens of his prolonged life (the pain and suffering of his life with the treatment less the amount and duration of pain that the patient would likely experience if the treatment were withdrawn) markedly outweigh any physical pleasure, emotional enjoyment, or intellectual satisfaction that the patient may still be able to derive from life. [ Id. at 365.] By all accounts, Michael is not experiencing any type of pain that would outweigh any enjoyment or pleasure he is experiencing.

17 Cruzan v Harmon, supra.

18 In re Storar, 52 NY2d 363; 420 NE2d 64 (1981); In re Westchester, supra.
19 It is unclear whether Kentucky adopted the substituted judgment standard in DeGrella. Justice Lambert, concurring, highlighted the inconsistency in the majority’s discussion of this issue and explained that because there was clear and convincing evidence of what Ms. DeGrella would choose, it was not necessary for the majority to adopt the substituted judgment standard in that case. Id. at 711.
20 See Eichner, supra at 472; Leach v Akron General Medical Center, 68 Ohio Misc 1; 426 NE2d 809 (1980).
21 [I]n civil cases, the clear and convincing evidence standard is typically thought to be the highest level that can be required. Thus, where the threat of deprivation of a fundamental right will trigger proof beyond a reasonable doubt in criminal cases, it would only call for the clear and convincing standard in civil cases. [Forte, The role of the clear and convincing evidence standard of proof in right to die cases, 8 Issues in Law & Medicine 183, 188-189 (1992).]
22 Our conclusion that clear and convincing evidence is the proper standard is in harmony with the patient advocate act, which also requires clear and convincing evidence that the patient would allow treatment to be withheld if such a decision would lead to the patient’s death. MCL 700.496(6); MSA 27.5496(6).
23 The dissent argues that an appellate court may only reverse trial court findings of fact if they are clearly erroneous. The majority is accused of disrespecting the trial court’s role as factfinder and engaging in a de novo review of the facts. Nothing could be further from the truth. The majority’s careful review of the entire record created below did not involve a search for new facts as the dissent suggests. Instead, it was a search designed to answer a singularly important question of law: Do the facts presented below provide a sufficient evidentiary basis for the trial court’s determination that the rigorous demands of the clear and convincing standard were met? The majority’s respect for the careful work of our colleagues below will not excuse an abdication of responsibility.

Levin, J. ( dissenting).

Two issues are presented. The first is whether the trial court clearly erred in finding by clear and convincing evidence that before his injuries, Michael Martin expressed a medical “preference to decline life-sustaining medical treatment under the circumstances presented.”1

[Page 235] The second asks what showing, if any, justifies the withdrawal of life-sustaining medical treatment in the absence of clear and convincing evidence of such preinjury wishes.

I dissent from the majority’s holdings on both issues. On the second issue, I do not agree with the majority that, on the facts of this case, life-sustaining medical treatment can only be removed with clear and convincing evidence of the patient’s expressed preinjury wishes. I would not reach the question what showing, other than clear and convincing evidence, would justify withdrawal of life-sustaining medical treatment, because the trial court did not clearly err in finding that clear and convincing evidence was presented that Michael Martin, before his injury, did not want to be kept alive in his current condition.

I
The Court of Appeals began by noting that a competent adult has a right to refuse life-sustaining medical treatment, and that an incompetent patient, while not losing this right, must have it exercised by a surrogate decisionmaker. 2 The Court explained that if a patient has the capacity to decide whether to accept life-sustaining medical treatment, it is his decision to make. Before the choice can be made by anyone other than the patient, there must be clear and convincing evidence that the patient lacks this capacity and will not regain it in the future. If such evidence is shown, a decisionmaker should then ask whether there is clear and convincing evidence of the patient’s previously expressed desires regarding life support under the conditions in which the court [Page 236] finds the patient to be. If so, those desires must be effectuated. 3 This is a purely subjective inquiry into the patient’s prior wishes. 4

Up to this point, the majority and the Court of Appeals would apply a similar analysis. 5 The majority does not dispute the trial and appellate courts’ conclusion that Michael Martin permanently lacks the capacity to exercise his right to have life-sustaining medical treatment removed. 6 The majority disagrees with the finding that clear and convincing evidence has been presented of Michael Martin’s preinjury wishes. 7

II
In ruling that clear and convincing evidence has not been presented, the majority becomes the first disinterested body to examine Michael Martin’s case without being convinced by the ample evidence of his prior wishes.

The bioethics committee of the hospital caring for Michael concluded that the request to remove life-sustaining medical treatment “was in accord with Mr. Martin’s wishes as expressed … prior to his injury.” The court-appointed guardian ad litem—whose role is to represent Michael’s best interests—also recommended the withdrawal of life support. The trial court and Court of Appeals [Page 237] agreed that Michael “clearly and convincingly reveal[ed] his expressed preference to decline life-sustaining medical treatment under the circumstances presented.”8

Evidence is “clear and convincing” when it

“produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.”9

The probative value of a once-competent patient’s past statements about life-sustaining medical treatment varies, “depending on the[ir] remoteness, consistency, and thoughtfulness,” as well as their specificity and the maturity of the person making the statement. 10

An appellate court may only reverse a trial court’s findings of fact if they are clearly erroneous. 11 Instead of respecting the trial court’s role as factfinder, the majority has engaged in a de novo review of the facts. It ignores the admonition that in cases like this an appellate court “must also be cognizant of the profound responsibility which has been vested in the trial court and should not substitute its judgment for that of a trial court.”12

The evidence adduced at trial demonstrated Michael’s deeply felt, consistent, and long-term desire not to be maintained artificially in a helpless condition. Michael’s sister Patricia Major—one of [Page 238] the appellants seeking to keep him alive—testified that even as a teenager Michael told her seriously that he did not want to be maintained on a respirator while unconscious. He later told friends and co-workers that “if he ever was in a [sic] accident & was in a vegetable [sic] state, he hoped someone pulled the plug.”

The majority dismisses these statements because they referred to a persistent vegetative state, rather than Michael’s current condition. 13 But the bioethics committee concluded that

the persistence of [Mr. Martin’s] condition and the level of functioning were equivalent to a persistent vegetative state for purposes of considering the removal of nutrition support .…

While not vegetative, Michael has minimal cognition and essentially no ability to communicate. Additionally, as one physician testified, when lay-persons express a desire not to be a “vegetable,” they usually are not referring strictly to a persistent vegetative state. Rather, the popular understanding involves a “spectrum of things, but the commonality of that is, independence of life … things in terms of basic needs of [the] human body,—bathing, eating and able to void.”

Moreover, Michael did not refer only to life as a “vegetable.” These statements must be viewed in combination with the testimony of Mary Martin. Mary testified about a series of conversations with Michael over a period of years, in which he expressed his desire not to be kept alive artificially if “he had to be dependent on people and machines …” She testified that his concern was not with being unconscious, but with being dependent on others for the most basic bodily functions.

[Page 239] As the Court of Appeals stated:

Prevalent throughout Michael’s statements is the preference not to be maintained in a condition where he was incapable of performing basic functions such as walking, talking, dressing, bathing, or eating, and, instead, was dependent upon others or machines for his basic needs. This is exactly the condition in which Michael now finds himself. 14

The conversations between Michael and Mary were not merely idle talk or emotional reactions to watching other persons suffer. 15 Mary testified that the last conversation occurred as she was awaiting surgery for internal hemorrhaging. Michael and Mary each promised not to leave the other dependent on artificial life support, should such a tragedy occur. Mary’s affidavit reported that Michael told her on one occasion that if she left him dependent on machines, “I’ll always haunt you, Mary.”

Not even the two appellants seeking to keep Michael alive offer any basis for questioning the veracity of this testimony. Michael’s sister, Patricia Major, conceded she had no reason to doubt that these conversations had occurred. 16 His mother, Leeta Martin, also testified that before the accident, Michael “would not have wanted to be helpless and dependent on others.”17

Other courts have found clear and convincing evidence of prior expressed wishes from similar or less compelling testimony than that in this case. [Page 240] See, e.g., In re Swan, 569 A2d 1202, 1205 (Me, 1990), affirming a finding of clear and convincing evidence of a prior expressed decision where a seventeen-year-old patient, after seeing or hearing of others receiving life-sustaining medical treatment, had twice expressed orally a desire not to be maintained artificially, Elbaum v Grace Plaza of Great Neck, 148 AD2d 244, 249-254; 544 NYS2d 840 (1989), ruling that oral statements to family members made over a period of years, most of which were in response to observing others receiving life-sustaining medical treatment, constituted clear and convincing evidence of the patient’s prior wishes. 18

The majority insists that a person’s wishes are not clearly known unless the applicable medical conditions are accurately specified. 19 In effect, this requirement will force most persons to seek legal assistance to assure that their wishes will be effectuated. By referring to being “dependent” or a “vegetable,” Michael was

“express[ing] [his] wishes in the only terms familiar to [him], and … as clearly as a lay person should be asked to express them. To require more is unrealistic, and for all practical purposes, it precludes the right of patients to forego life-sustaining treatment. 20

[Page 241] The majority also states that “[s]tatements made in response to seeing or hearing about another’s prolonged death do not fulfill the clear and convincing standard.”21 This bright-line rule ignores that many persons only consider their own mortality seriously upon hearing about the end of other people’s lives. Admittedly, the emotional content of such statements must be carefully considered in weighing their probative value. But the majority’s “categorical exclusion of [this] relevant evidence dispenses with any semblance of accurate factfinding.”22

The majority’s treatment of the evidence in this case suggests that it would require a highly formal oral or written statement concerning the patient’s specific medical condition. To impose such rules would be unrealistic. 23

[Page 242]
III
Petitioner presented clear and convincing evidence of her husband’s prior wishes. As a result, I would not decide in this case whether the search for clear and convincing evidence of a patient’s previously expressed wishes needs to be followed by another subjective inquiry, an objective inquiry, or some amalgam of the two.

Although the trial court found that clear and convincing evidence had been presented, the Court of Appeals outlined additional steps for a decisionmaker to take when such evidence is lacking. It stated that in such a case, the decisionmaker should next apply a “substituted judgment” standard. This would require some trustworthy evidence of the patient’s preinjury wishes, even if less than clear and convincing evidence. In addition, if this evidence suggests the patient would want treatment withdrawn under the conditions that exist, the court must also decide that the burdens of prolonged life outweigh its benefits before allowing withdrawal. 24

Finally, if there is no evidence at all of the patient’s prior wishes, the Court of Appeals stated that a pure best interests standard should be applied. This is also referred to as an “objective” test, because it seeks to determine a patient’s [Page 243] objective best interests rather than his subjective wishes. 25 The Court of Appeals explained:

The logic of this sequential analysis is rooted in the fact that, as we progress from one step to the next, we are moving away from deferring to the wishes of the patient to the point where we allow others (fiduciaries, family members, ethics committees, and courts) to decide whether the patient will live or die without reference to the patient’s wishes. Our premise is that this should not be permitted except as a last resort, given society’s reverence for life and its acknowledgment that patients have an inherent right of self-determination. Nevertheless, we may not eliminate [the pure best interests approach] because to do so would be to hold that where the patient is incompetent, never expressed a preference, and the court cannot determine what the patient would do under existing circumstances, life support may never be withdrawn. That is not the current state of the law. 26

This approach originated with the New Jersey Supreme Court decision in In re Conroy,27 and has been praised by commentators. 28

IV
The majority would make Michigan one of a small minority of states to forbid termination of life support unless clear and convincing evidence is presented that the patient has expressly stated his wishes that it be removed under the specific [Page 244] conditions applicable. 29 Courts have attached differing meanings to terms such as “clear and convincing”30 or “substituted judgment.”31 But most courts to address this issue have permitted termination of life-sustaining medical treatment on the basis of an objective test, or at least a more lenient subjective standard than the one required by the majority. 32 These cases typically seek to respect the patient’s wishes whenever they can be determined without “foreclos[ing] the possibility of humane actions, which may involve termination of life-sustaining treatment, for persons who never [Page 245] clearly expressed their desires about life-sustaining treatment .…”33

A
The majority first chooses to apply only a purely subjective inquiry in this case. It notes that “the evidentiary and decision-making standards appropriate in a given case do not depend on the source of the right;”34 yet its analysis rests on its choice of informed consent as the sole basis for the right to refuse life-sustaining medical treatment in this case. The majority rightly points out that the substituted judgment standard, and especially the best interests standard, “entail[] some level of objective analysis.”35 But this has not constrained other courts to look solely at the patient’s prior expressed wishes. Instead, courts have employed their parens patriae authority to allow surrogate decision making with both objective and subjective inquiries. 36

But with little discussion, the majority declines to make use of its parens patriae power. 37 The majority claims that cases adopting an approach with objective elements have generally involved patients in circumstances different than Michael Martin. 38 The majority offers no convincing expla- [Page 246] nation why Michael Martin’s condition must be treated differently. 39

Implicit in the majority’s refusal to inquire into those benefits and burdens seems to be a judgment that the costs of not making that inquiry are less than for patients in other circumstances. The majority seems to assume that life in Michael Martin’s situation is somehow more tolerable for him. This suspicion is heightened by the majority’s suggestion that an objective inquiry into Michael Martin’s best interests would support maintaining him on life-sustaining medical treatment. 40 This conclusion, however, is flatly contradicted by the court-appointed guardian ad litem, who concluded that removing life-sustaining medical treatment would be in Michael’s best interests.

B
After limiting the inquiry to the patient’s prior expressed wishes, the majority compounds its error by imposing a heightened standard of proof. The majority recognizes the principle that “a decision to refuse medical treatment in future situations, made while competent, is not lost because of incompetency or the inability to communicate.”41 Yet its “clear and convincing” burden of proof will have that effect in many cases, including this one. 42

[Page 247] As one court has recently noted, the patient’s “right to self determination would not be protected, but rather, might well be negated” if life-sustaining medical treatment withdrawal were forbidden absent clear and convincing evidence of a patient’s prior expressed wishes addressed to the current condition. 43 Under the majority’s approach, courts inevitably will reject trustworthy evidence concerning a patient’s prior wishes on the ground that it fails to meet the clear and convincing evidence standard. As one commentator stated, “those few states that require a ‘clear and convincing’ standard of evidence will likely fail to honor an incompetent patient’s desires.”44

V
The majority characterizes its ruling as a cautious approach to a life-or-death decision. 45 It suggests that “‘[a]n erroneous decision not to terminate [life-sustaining medical treatment] results in a maintenance of the status quo’” and that such an error can be corrected in the future. 46 But keeping Michael Martin alive is not the neutral, safe solution. As Justice Brennan stated in Cruzan,

from the point of view of the patient, an erroneous decision in either direction is irrevocable. An erroneous decision to terminate artificial nutrition and hydration, to be sure, will lead to … complete brain death. An erroneous decision not to terminate life support, however, robs a patient of the very qualities protected by the right to avoid unwanted medical treatment. His own degraded existence is perpetuated; his family’s suffering is pro- [Page 248] tracted; the memory he leaves behind becomes more and more distorted. 47

The majority’s tightly constricted inquiry greatly increases this risk. In this case, it has sentenced Michael Martin to life in a helpless, degraded condition against his prior wishes. To quote the majority’s own opinion, “to condemn persons to lives from which they cry out for release is nothing short of barbaric.”48

Appellants also argue that even if clear and convincing evidence exists of Michael’s preaccident wishes not to continue life-sustaining medical treatment in this situation, he has since changed his mind. They claim that he has shown “a present desire to accept treatment .…” The majority does not reject this contention. Ante, p 217, n 10. The evidence, however, demonstrates that Michael lacks the ability to understand or express a decision about ending his life.

The majority does not question the trial court’s ruling that “Michael does not have, nor will he regain, sufficient decision-making capacity with respect to a decision to withdraw life-sustaining medical treatment.” Martin II, n 1 supra, p 100. Several physicians testified at trial that Michael has only a very limited comprehension of his condition. Doctors testified that he lacks the capacity to “understand[] the treatment choices, []or the consequences of those.” One physician opined that Michael could comprehend a question phrased in terms of “does he want to live or die?” Another doctor disagreed, however.

Michael lacks the ability to communicate. The guardian ad litem testified that Michael “is unable to communicate on any meaningful level.” Appellants point to Michael’s head nods and constant smile as evidence of his desire to live. But the head nods given “in response” to questions are far too inconsistent to allow him to communicate with any effectiveness.

In light of Michael’s inability to express or even understand such a choice, appellants’ claim that he has changed his mind about life-sustaining medical treatment seems overly optimistic at best. Their well-intentioned hopes should not be allowed to override the wishes he clearly expressed while competent.

 

DISSENT FOOTNOTES

1 In re Martin (After Remand) , 205 Mich App 96, 99; 517 NW2d 749 (1994) ( Martin II).
2 In re Martin , 200 Mich App 703, 713; 504 NW2d 917 (1993) ( Martin I).
3 Id., p 713.
4 Meisel, The Right to Die, § 9.10, p 270.
5 As the majority notes, the requirement of clear and convincing evidence is not an entirely different standard. It is simply the burden of proof for the exercise of the substantive inquiries. Meisel, n 4 supra, 1994 cum supp, § 8.38, p 230. Some authorities, however, have used it as shorthand for a court’s refusal to allow removal of life-sustaining medical treatment absent clear and convincing evidence of a patient’s prior wishes. See, e.g., Beebe, The right to die: Who really makes the decision?, 96 Dick L R 649 (1992).
6 Ante, p 217, n 10.
7 Id., p 207.
8 Martin II, n 1 supra, p 105.
9 In re Jobes, 108 NJ 394, 407; 529 A2d 434 (1987); (quoting State v Hodge, 95 NJ 369, 376; 471 A2d 389 [1984]).
10 In re Conroy, 98 NJ 321, 362; 486 A2d 1209 (1985).
11 In re Cornet , 422 Mich 274, 277-278; 373 NW2d 536 (1985).
12 In re Fiori, 438 Pa Super 610, 637; 652 A2d 1350 (1995).
13 Ante, p 229.
14 Martin II, n 1 supra, pp 103-104.
15 Ante, pp 230-232.
16 Id., pp 229-230.
17 Leeta Martin argued that, if the court found Michael lacked the capacity to decide his own fate, his prior wishes should not control because “when the good Lord wants him, the good Lord will take him.”
18 See also In re Guardianship of Browning, 568 So 2d 4, 17 (Fla, 1990). Browning had executed a written declaration providing that life-sustaining medical treatment should be withheld if she were terminally, irreversibly ill and her death were imminent. A stroke left her in a condition similar to Michael Martin’s in which she was dependent on artificial nutrition. Despite her ability to live indefinitely on the feeding tube, the court permitted withdrawal of life-sustaining medical treatment under the dictates of her directive.
19 Ante, p 229, requiring that the prior statements describe “these exact circumstances, or circumstances highly similar” to the patient’s current condition.
20 Cruzan v Director, Missouri Dep’t of Health, 497 US 261, 324; 110 S Ct 2841; 111 L Ed 2d 224 (1990) (Brennan, J., dissenting), quoting In re Westchester Co Medical Center, 72 NY2d 517, 551; 531 NE2d 607 (1988) (Simons, J., dissenting).
21 Ante, p 228.
22 Cruzan, n 20 supra, p 321 (Brennan, J., dissenting), criticizing the Missouri court’s refusal to consider such evidence. See also Conroy, n 10 supra, p 361, noting that prior statements of intent “might take the form of reactions that the patient voiced regarding medical treatment administered to others.”
23 For various reasons, most persons neglect to formalize their wishes this way, even though they may feel strongly about them. Cruzan, n 20 supra, pp 323-324.

24 Martin I, n 2 supra, p 712.

25 Meisel, n 4 supra, § 9.16, p 278.

26 Martin I, n 2 supra, p 713.
27 Conroy, n 10 supra, pp 361-366.
28 Meisel, n 4 supra, § 9.10, p 269.
29 Only New York and Missouri courts have imposed such a rigid standard. In re Westchester, n 20 supra, pp 530-531; Cruzan v Harmon, 760 SW2d 408, 425 (Mo, 1988), aff’d Cruzan v Director, n 20 supra. See also DeGrella v Elston, stating:
In all but two states, Missouri and New York, even when the court has been unable to precisely determine the express wishes of the patient, it has allowed the patient’s family, or the patient’s guardian, to exercise substituted judgment as to what the patient would wish. [858 SW2d 698, 706 (Ky, 1993).]
30 See n 5.
31 The majority describes the “substituted judgment” standard as “entail[ing] some level of objective analysis” because it allows the decisionmaker to consider a broad range of factors, including the patient’s personal values and other behavior, to determine what the patient “would choose.” Ante, pp 219-221.
Some courts appear to have allowed the decisionmaker actually to substitute his own judgment for the wishes of the incompetent patient. See, e.g., In re Torres, 357 NW2d 332, 341 (Minn, 1984). But properly applied, the substituted judgment standard closely resembles a subjective inquiry with a burden of proof lower than “clear and convincing evidence.” It “attempt[s] to replicate what the patient would have decided if competent to do so.” Meisel, n 4 supra, § 9.10, p 270.
32 Most courts have ruled that even where a patient has not expressly stated wishes regarding life-sustaining medical treatment, a substituted judgment standard is used to determine “what decision the patient would make if he were competent to do so.” In re Longeway Estate, 133 Ill 2d 33, 49; 549 NE2d 292 (1989). See also Guardianship of Doe, 411 Mass 512, 517-518; 583 NE2d 1263 (1992); Browning, n 18 supra, p 13. A smaller number of courts have employed a pure objective “best interests” standard. See, e.g., Conroy, n 10 supra; Rasmussen v Fleming, 154 Ariz 207, 221-222; 741 P2d 674 (1987).
33 Conroy, n 10 supra, p 364.
34 Ante, p 216. See also Meisel, n 4 supra, § 3.4, p 50.
35 Ante, p 220.
36 See, e.g., Longeway, n 32 supra, pp 52-53; Conroy, n 10 supra, p 364.
37 It states simply that “we find nothing that prevents the state from grounding any objective analysis on a threshold requirement of pain, terminal illness, foreseeable death, a persistent vegetative state, or affliction of a similar genre.” Ante, pp 222-223.
38 Id. The majority, however, fails to cite any factually similar cases in which courts have refused to go beyond the subjective inquiry. In Browning, n 18 supra, p 13, the Florida Supreme Court espoused a substituted judgment standard where the patient was in a condition similar to Michael Martin’s and had executed a prior directive that only arguably addressed her current condition.
39 For example, the majority notes that courts have used objective inquiries where a patient was never competent. Ante, p 223. But as one commentator notes, “decisionmaking for never-competent patients is merely a variant of the larger problem of decisionmaking for patients whose preferences are unknown and unknowable.” Meisel, n 4 supra, § 9.14, p 275.
40 Ante, p 223, n 16.
41 Ante, p 217.
42 The majority tries to limit its ruling to the facts of this emotionally difficult case. See, e.g., id., p 223, n 15. But trial courts and the Court of Appeals will follow this Court’s lead in other cases involving very different facts.
43 Fiori, n 12 supra, p 623.
44 See Beebe, n 5 supra, p 665.
45 Ante, pp 224-225.
46 Id., p 226.
47 Cruzan v Director, n 20 supra, p 320 (Brennan, J., dissenting).
48 Ante, p 208.