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.
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. Some are hard to endure, selectively effective, and if one survives the treatment, the outcome might not be easy to accept.
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. Again, emergency medical treatment does not require informed consent. It requires an informed refusal.
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.
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?
An estate plan may pass property by will, deed, trust, or contract. A will is objected to in a will contest. A trust is challenged in a petition to determine the validity of a trust. A contract or deed is voided under a claim of undue influence, lack of capacity, mistake, or fraud. 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. But, the ideal is not always possible.
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
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.