Posted On Dec 17

Elder Law Section Presentation – Proposed Family Consent Law
Bold-faced type is the captioning of the power-point slides. Commentary immediately follows each section.

Health Care Representative
A health care representative is an adult given authority under this Act to consent to medical treatment for another adult who is unable to provide consent.
* Please take note that the representative is authorized to provide consent. However, note the following concerning the doctrine of informed consent: “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. Director of Missouri Dept. Health, 497 U.S. 261, 270 (1990)Therefore, a Health Care Representative’s authority needs to be specifically defined in this statute; otherwise, a similar logic will apply to the use of the our term “consent.”

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Posted On Dec 17

A POLST is a Physician’s Order for Life Sustaining Treatment.  Take a look at this 11-minute podcast about Advance Care Planning from the New England Journal of Medicine blog.

New England Journal of Medicine podcast. Clinical Conversations.


  • They are physicians’ orders written at a time when the healthcare staff would not be surprised if the patient died within the next 12 months.
  • Others may answer the POLST questions on behalf of the patient, if the patient is unable to express his or her own wishes.
  • The question asked is simple. “What were the patient’s wishes about end of life care?”

See Erik K. Fromme, MD et al, “POLST Registry Do-Not-Resuscitate Orders and Other Patient Treatment Preferences,” JAMA, 2012:307(1).

How is that different from a Patient Advocate Designation?

  • In a Patient Advocate Designation, only an adult patient of sound mind can answer the questions and provide the instructions.
  • A patient advocate designation is not limited to patients who are at the end of life.
  • Most patients cannot give specific instructions about care they may need fifty years from now. Therefore, in a patient advocate designation, the patient names a person who will make medical decisions for them when the patient is no longer able to make those decisions.
  • A patient advocate designation provides immunity for healthcare providers for honoring the patient advocate’s authority.
  • A patient advocate designation is recognized by the court as a document to be used to provide clear and convincing evidence of the patient’s wishes.

Compare a Patient Advocate Designation to a POLST.

  • A patient advocate designation is appropriate for patients who are 18 or older and of sound mind. It applies to a much wider range of adults than a POLST does.
  • A patient advocate designation does not make advance decisions on paper and put those decisions, with a signed consent, in the patient’s medical chart. A POLST requires advance decisions to be made and an order to be put in the chart – the nurses follow the order and there is no need to call family first for a decision to be made. A patient advocate designation, on the other hand, requires contact to be made with the patient advocate any time a decision must be made that requires someone with legal authority to sign a consent form for the patient.

What might be in a POLST form?

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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).

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