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.”

General Rule
A health care representative may make a health care decision for an individual who is at least 18 years of age or who is an emancipated minor, so long as the individual’s attending physician has determined that he or she is unable to make health care decisions; the individual does not have a patient advocate designation; and, the individual does not have a guardian with the power to make health care decisions.
* Regarding emancipated minors: MCL 722.4e(1)(g) which provides that an emancipated minor has “the right to authorize his or her own preventive health care, medical care, dental care, and mental health care, without parental knowledge or liability.” An emancipated minor is at least 16 years of age and a resident of Michigan, who has petitioned for an obtained an emancipation order from the court after an examination and finding that the minor has demonstrated the ability to manage his or her financial affairs, possesses the ability to manage his or her personal and social affairs, and that emancipation would be in the minor’s best interest. MCL 722.4a. An emancipated minor is treated as an adult but he or she is not an adult.

Application
A health care representative may make medical treatment or care decisions for the individual.
* This applied to medical decisions and not to mental health decisions. We could have written this in for emphasis and perhaps we should also say that the representative cannot make mental health decisions for the individual.

Limitations
Extent of authority of health care representative:
End of Life Care
A health care representative is not authorized to withdraw [or withhold] life-sustaining treatment on behalf of an individual.
* The representative cannot withdraw life-sustaining treatment. We may also include a limit on withholdingmedical treatment. This topic is still under discussion. Personally, I favor allowing a representative to consent to a Do-Not-Resuscitate order (DNR). My reasoning is that an individual who dies a natural death, and his or her attending physician recommends against cardiopulmonary resuscitation (CPR), it is generally better for the individual to remain dead rather than be artificially resuscitated. There are many reasons why this may be true. For example, CPR is not generally recommended for medically frail individuals for whom CPR will not be effective and it will be very painful to endure.

Apply fiduciary standards
A health care representative shall act in accordance with the standards of care applicable to fiduciaries when making health care decisions for an individual.
* Health care facilities have a fundamentally good grasp of fiduciary law, because they already apply it to guardians and patient advocates. Likewise, prosecutors understand fiduciary law. A fiduciary stands in a position of trust and loyalty.

Suicide. Homicide. 
A health care representative shall not exercise a power concerning the individual’s health care if the individual could not have exercised the power on his or her own behalf.
* This limitation is derived from the patient advocate designation statute.

Does not remove rights
A health care representative’s authority under this act is suspended whenever the individual regains the ability to participate in his or her own healthcare decisions.
We will add to this language how to determine that the individual has regained their ability to make their own decisions. Also, we need to consider “participate” versus “ability to make” their own healthcare decision.

Limited to kin
Who may act as health care representative:
In the interests of simplicity, the priority list includes only family members.

Adults
Any adult member of the following classes, in descending order of priority, may act as health care representative:
* Self-explanatory. Legal competence is defined in

Spouse
The spouse, unless legally separated or an action for divorce, annulment, legal separation or for separate maintenance is pending.
* The audience asked about estranged spouses. An estranged spouse is probably no longer “estranged” if they are present to give consent. Perhaps the question was presented because under the Social Welfare Act contributions from an “estranged” spouse are considered when determining whether a patient is eligible for medical assistance. MCL 400.107. Is a spouse is in fact “estranged” if they are making contributions to the other spouse?

Child.
A child.
Any of the adult children may be the representative. We do not require all of the members of the class to agree, nor do we require majority agreement.

Parent
 A parent whose right to legal custody of the individual was never terminated by a court order.
* This section is up for revisions and discussion based on the wise feedback of the audience. Only an adult child may have a healthcare representative, so we do not need to specify that only a parent who currently has the legal authority to make healthcare decisions for a child may serve as a healthcare representative.

 Sibling
A brother or sister
The requirement is any adult brother or sister. Not all members of the class. Not the majority of the members of the class.

2 generations down or up
A grandchild or grandparent.
* This is the last rung of the priority list. Any grandchild or grandparent or grandchild who is an adult. The issue of persons who are alleged to lack the mental capacity to make a decision for another will arise. This is an issue that we need to address. The last rung is not a friend of the individual because that asks the healthcare facility to determine who is legitimately a friend and who is not legitimately a friend.

Cooperation
An individual with a higher priority who is willing to act as a health care representative may assume the authority to act even though another individual has previously assumed that authority.
* The example that I provided was that of a spouse in the Bahamas who could not be reached. If she returned from her vacation to find her husband at the hospital, then whoever was acting in her absence must step down when she arrives.

Liability of Provider
A health care provider acting in accordance with the standards of care applicable to the provider’s scope of practice shall not be liable for reliance upon representations made by an individual regarding his or her priority to act as health care representative as defined in this Act.
* The liability protection is the carrot that encourages a provider to make an attempt to apply this statute rather than insist that family obtain letters of authority for guardianship.

There are two parts to this section. First, the provider may rely on the representations of a family member that they have priority. Second, the only liability protection we give in this statue relates to acceptance of who has priority. The healthcare provider is still bound by sound medical practice. The same applies to the Patient Advocate Designation statute. A doctor who accepts a patient advocate’s instruction to commit malpractice may still be sued for the malpractice.
Also, I clarified that any person giving instructions to a physician is merely consenting to treatment. That person, whether a guardian, patient advocate or representative, is not elevated to the status of a doctor just because they are acting on behalf of the patient. For example, I cannot tell my doctor to write me a prescription against my doctor’s better judgment. Likewise, anyone making medical decisions for me cannot tell my doctor to write me a prescription against my doctor’s better judgment.
A Probate Council member explained the concept as follows: A doctor does not run into the hallway and say to the family, “Your dad is having a stroke what should I do?” That is ridiculous. Families are not doctors. The doctor decides what should be done to save the patient and explains the risks for each option. The representative chooses and consents.

Dispute
If a dispute arises under this act, a petition requesting the court’s determination may be filed with the probate court in the county in which the patient resides or is located.
* This section is also under construction. We can limit the petition to asking a probate court to interpret the statute and apply it. Alternatively, we can specify that if a dispute arises the probate court may require a petition for guardianship.  The answer probably lies more with the facts than with a rule since the court can decide whether this is a one-time dispute or an issue that will be ongoing.

Preemption
This act does not abrogate any rights granted by a constitution, common law, treaty, statute or any other legally recognized basis.
The preemption section got lengthier as we considered the possibilities of where the individual’s right to consent to medical care is found in the law. It could be a right to privacy, a liberty interest from the 14th Amendment, or a common law doctrine, depending which court is writing the opinion.

End of Proposed Family Consent Statute
 Discussion:
Can a State require a surrogate to produce clear and convincing evidence of the patient’s wishes?

Yes.   Cruzan:“An incompetent person is not able to make an informed and voluntary choice to exercise a hypothetical right to refuse treatment or any other right. Such a “right” must be exercised for her, if at all, by some sort of surrogate. Here, Missouri has in effect recognized that under certain circumstances a surrogate may act for the patient in electing to have hydration and nutrition withdrawn in such a way as to cause death, but it has established a procedural safeguard to assure that the action of the surrogate conforms as best it may to the wishes expressed by the patient while competent. Missouri requires that evidence of the incompetent’s wishes as to the withdrawal of treatment be proved by clear and convincing evidence. The question, then, is whether the United States Constitution forbids the establishment of this procedural requirement by the State. We hold that it does not.”
* The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” In Cruzan, the Court balanced the individual’s right to their life against that same individual’s right to the liberty to refuse unwanted medical treatment. Both rights are found in the 14thAmendment Due Process clause. Because a Constitutional interest is at stake, a heightened evidentiary standard may be applied. “The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of fact finding, is to “instruct the fact finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” Cruzan quoting Addington v. Texas. “This Court has mandated an intermediate standard of proof — ‘clear and convincing evidence’ — when the individual interests at stake in a state proceeding are both ‘particularly important’ and ‘more substantial than mere loss of money.’” Cruzan quoting Santosky v. Kramer.

Secondly, can a State require a patient’s wishes to be stated in a Living Will?

Yes. Cruzan: “It is also worth noting that most, if not all, States simply forbid oral testimony entirely in determining the wishes of parties in transactions which, while important, simply do not have the consequences that a decision to terminate a person’s life does. At common law and by statute in most States, the parol evidence rule prevents the variations of the terms of a written contract by oral testimony. The statute of frauds makes unenforceable oral contracts to leave property by will, and statutes regulating the making of wills universally require that those instruments be in writing. There is no doubt that statutes requiring wills to be in writing, and statutes of frauds which require that a contract to make a will be in writing, on occasion frustrate the effectuation of the intent of a particular decedent, just as Missouri’s requirement of proof in this case may have frustrated the effectuation of the not-fully-expressed desires of Nancy Cruzan. But the Constitution does not require general rules to work faultlessly; no general rule can.”
* Missouri rejected the argument that Cruzan’s parents were entitled to order the termination of her medical treatment, concluding that no person can assume that choice for an incompetent (1) in the absence of the formalities required by the Missouri Living Will statute or (2) in the absence of clear and convincing evidence of the patient’s wishes.

The quote above is concerned with whether a state may refuse to recognize statements not contained in a Living Will. The Court held that Missouri is allowed to make such a refusal.

Alternatively, if there is insufficient evidence of the patient’s wishes can a State choose to not accept the decision of a family member?

Yes. “Petitioners alternatively contend that Missouri must accept the “substituted judgment” of close family members even in the absence of substantial proof that their views reflect the views of the patient. They rely primarily upon our decisions in Michael H. v. Gerald D., and Parham v. J. R.  But we do not think these cases support their claim. In Michael H., we upheld the constitutionality of California’s favored treatment of traditional family relationships; such a holding may not be turned around into a constitutional requirement that a State must recognize the primacy of those relationships in a situation like this. And in Parham, where the patient was a minor, we also upheld the constitutionality of a state scheme in which parents made certain decisions for mentally ill minors. Here again petitioners would seek to turn a decision, which allowed a State to rely on family decision-making into a constitutional requirement that the State recognize such decision-making. But constitutional law does not work that way.”
* It is acceptable for a state to refuse to accept family consent. The only Constitutional liberty interest at stake here is the right that belongs to the patient. The patient’s family has no Constitutional right to make a decision on behalf of the patient.

Rationale for refusing family consent
No doubt is engendered by anything in this record but that Nancy Cruzan’s mother and father are loving and caring parents. If the State were required by the United States Constitution to repose a right of “substituted judgment” with anyone, the Cruzans would surely qualify. But we do not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself. Close family members may have a strong feeling — a feeling not at all ignoble or unworthy, but not entirely disinterested, either — that they do not wish to witness the continuation of the life of a loved one which they regard as hopeless, meaningless, and even degradingBut there is no automatic assurance that the view of close family members will necessarily be the same as the patient’s would have been had she been confronted with the prospect of her situation while competentAll 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. 
* The Court’s decision is based on Constitutional law.

Patient Advocate
We are not faced in this case with the question whether a State might be required to defer to the decision of a surrogate if competent and probative evidence established that the patient herself had expressed a desire that the decision to terminate life-sustaining treatment be made for her by that individual
* The Court distinguished its holding. If Nancy’s parents had clear and convincing evidence that Nancy herself wanted to refuse treatment, then Missouri would have to honor those wishes.

States that have family consent laws to withdraw medical treatment
Arizona. Arkansas. Washington D.C., Florida. Iowa.Lousiana. Maine. Montana. New Mexico. North Carolina. South Carolina. Texas. Utah. Virginia.
* Not every state has a family consent law. Remember that a family consent law authorizes a family member to make a healthcare decision based on familial relationship alone.  Based on a 2004 list, these states allow a family member to withdraw medical treatment.

States that have family consent laws – consent only
Mississippi. Missouri. North Dakota.

These states allow family members to consent to treatment only.
Mississippi

SEC. 41-41-3. Who may consent to surgical or medical treatment or procedures.
It is hereby recognized and established that, in addition to such other persons as may be so authorized and empowered, any one of the following persons is authorized and empowered to consent, either orally or otherwise, to any surgical or medical treatment or procedures not prohibited by law which may be suggested, recommended, prescribed or directed by a duly licensed physician:

(a) Any adult, for himself. For purposes of this section, the term “adult” shall mean any person who is eighteen (18) years of age or older.
(b) Any parent, whether an adult or a minor, for his minor child or for his adult child of unsound mind; however, the father of an illegitimate child cannot consent for said child solely on the basis of parenthood.
(c) Any married person, whether an adult or a minor, for himself, and, where his joinder in the consent of his spouse may be desired or required, with his spouse.
(d) Any married person, whether an adult or a minor, for his spouse of unsound mind.
(e) Any person standing in loco parentis, whether formally serving or not, and any guardian, conservator or custodian, for his ward or other charge under disability.
(f) Any adult for his father or mother of unsound mind; however, an illegitimate child cannot consent for his natural father solely on the basis of the latter’s parenthood.
(g) Any emancipated minor, for himself.
(h) Any unemancipated minor of sufficient intelligence to understand and appreciate the consequences of the proposed surgical or medical treatment or procedures, for himself.
(i) Any female, regardless of age or marital status, for herself when given in connection with pregnancy or childbirth.
(j) Any adult, for his minor brother or sister or for his adult brother or sister of unsound mind.
(k) During the absence of a parent so authorized and empowered, any maternal grandparent and, if the father be so authorized and empowered and be of legitimate birth, any paternal grandparent, for his minor grandchild or for his adult grandchild of unsound mind.
* Mississippi’s consent law clearly is an attempt to give a healthcare provider a list of people from whom it would be okay to ask for consent. There is no priority ranking for this list. And the authority of these persons is limited to authorizing a treatment suggested by the healthcare provider.

However, no person so authorized and empowered may arbitrarily, obstinately or without reasonable medical justification withhold or refuse his consent. However, nothing contained herein shall be construed to abridge any right of an adult who is not of unsound mind, who is not pregnant, whose wife is not pregnant, and who is not the parent of a minor living child, to refuse such consent as to his own person.

In addition to its usual definitions, the phrase “unsound mind” shall also mean and include, for the purposes of sections 41-41-3 through 41-41-11, a state of mind during which the person affected is unable to understand and appreciate the consequences of the proposed surgical or medical treatment or procedures so as to intelligently determine whether or not to consent to the same, regardless of whether such state of mind is only temporary or has existed for an extended period of time or occurs or has occurred only intermittently and whether or not it is due to natural state, age, shock or anxiety, illness, injury, drugs or sedation, intoxication or other cause of whatever nature.
* To drive home the point that the statute is empowering healthcare providers and not family members, Mississippi prohibits family from obstinately refusing to give consent.

Missouri
Consent to surgical or medical treatment, who may give, when.
431.061. 1. In addition to such other persons as may be so authorized and empowered, any one of the following persons if otherwise competent to contract, is authorized and empowered to consent, either orally or otherwise, to any surgical, medical, or other treatment or procedures not prohibited by law:

(1) Any adult eighteen years of age or older for himself;
(2) Any parent for his minor child in his legal custody;
(3) Any minor who has been lawfully married and any minor parent or legal custodian of a child for himself, his child and any child in his legal custody;
(4) Any minor for himself in case of:
(a) Pregnancy, but excluding abortions;
(b) Venereal disease;
(c) Drug or substance abuse including those referred to in chapter 195;
(5) Any adult standing in loco parentis, whether serving formally or not, for his minor charge in case of emergency as defined in section 431.063;
(6) Any guardian of the person for his ward;
(7) During the absence of a parent so authorized and empowered, any adult for his minor brother or sister;
(8) During the absence of a parent so authorized and empowered, any grandparent for his minor grandchild;
(9) “Absence” as used in (7) and (8) above shall mean absent at a time when further delay occasioned by an attempt to obtain a consent may jeopardize the life, health or limb of the person affected, or may result in disfigurement or impairment of faculties.

 2. For purposes of consent to hospitalization or medical, surgical or other treatment or procedures, a “minor” shall be defined as any person under eighteen years of age and an “adult” shall be defined as any person eighteen years of age or older.
 3. The provisions of sections 431.061 and 431.063 shall be liberally construed, and all relationships set forth in subsection 1 of this section shall include the adoptive and step-relationship as well as the natural relationship and the relationship by the half blood as well as by the whole blood.
 4. A consent by one person so authorized and empowered shall be sufficient notwithstanding that there are other persons so authorized and empowered or that such other persons shall refuse or decline to consent or shall protest against the proposed surgical, medical or other treatment or procedures.
 5. Any person acting in good faith and not having been put on notice to the contrary shall be justified in relying on the representations of any person purporting to give such consent, including, but not limited to, his identity, his age, his marital status, and his relationship to any other person for whom the consent is purportedly given.
* Three things to note about Missouri’s consent law:

      1. It has language to affirm partial relations should be treated as full relations.

 

      2. It allows a healthcare provider to take one consent over another family member’s refusal which is

 

      appears to be giving the decision making authority to the healthcare provider and making the

 

      family tokens who merely sign off on the healthcare provider’s decision.

 

    3. It provides liability protection for the healthcare provider.

Missouri’s family consent statute has commonalities with Mississippi’s because it does not set out a priority list.

North Dakota
 1. Informed consent for health care for a minor patient or a patient who is determined by a physician to be an incapacitated person, as defined in subsection 2 of section 30.1-26-01, and unable to consent may be obtained from a person authorized to consent on behalf of the patient. Persons in the following classes and in the following order of priority may provide informed consent to health care on behalf of the patient:
      a.    The individual, if any, to whom the patient has given a durable power of attorney that encompasses the authority to make health care decisions, unless a court of competent jurisdiction specifically authorizes a guardian to make medical decisions for the incapacitated person;
      b.    The appointed guardian or custodian of the patient, if any;
      c.    The patient’s spouse who has maintained significant contacts with the incapacitated person;
      d.    Children of the patient who are at least eighteen years of age and who have maintained significant contacts with the incapacitated person; 
      e.    Parents of the patient, including a stepparent who has maintained significant contacts with the incapacitated person;
      f.    Adult brothers and sisters of the patient who have maintained significant contacts with the incapacitated person;
      g.    Grandparents of the patient who have maintained significant contacts with the incapacitated person;
      h.    Grandchildren of the patient who are at least eighteen years of age and who have maintained significant contacts with the incapacitated person; or
       i.    A close relative or friend of the patient who is at least eighteen years of age and who has maintained significant contacts with the incapacitated person.
* North Dakota’s family consent law is markedly closer to the direction that ours has taken. Like us, North Dakota has a priority list that gives highest deference to the patient advocate or guardian, as the case may be. I also like the reference to step relations and inclusion of a close friend.

2.    A physician seeking informed consent for proposed health care for a minor patient or a patient who is an incapacitated person and is unable to consent must make reasonable efforts to locate and secure authorization for the health care from a competent person in the first or succeeding class identified in subsection 1. If the physician is unable to locate such person, authorization may be given by any person in the next class in the order of descending priority. A person identified in subsection 1 may not provide informed consent to health care if a person of higher priority has refused to give such authorization.
 * We wrestled with similar language.  The issue was whether healthcare providers would be able to devote time to locating family members. We want as much incentive as possible to go through the list to find an available family member with priority rather than simply seek guardianship.

3.    Before any person authorized to provide informed consent pursuant to this section exercises that authority, the person must first determine in good faith that the patient, if not incapacitated, would consent to the proposed health care. If such a determination cannot be made, the decision to consent to the proposed health care may be made only after determining that the proposed health care is in the patient’s best interests.
* This section is interesting because it blends subjective standard and substituted judgment into one statement: “The representative must determine if the patient would consent to the treatment.” If that determination cannot be made then switch to the best interest standard. I actually like the simplicity of this language because we are talking to family here, not to a public guardian. A functional family can easily interpret this instruction and follow it. “Would dad consent to this treatment” is crystal clear when you are giving it to a family member.

4.    No person authorized to provide informed consent pursuant to this section may provide consent for sterilization, abortion, or psychosurgery or for admission to a state mental health facility for a period of more than forty-five days without a mental health proceeding or other court order.
 * North Dakota is clear that family cannot use this statute to impose care that otherwise would require a court order even if the person were under guardianship. We agree and are following the same reasoning here in Michigan.

5.    If a patient who is determined by a physician to be an incapacitated person, or a person interested in the patient’s welfare, objects to a determination of incapacity made pursuant to this section, a court hearing pursuant to chapter 30.1-28 must be held to determine the issue of incapacity.
 * North Dakota includes a provision that allows the patient or an interested person to contest the physician’s determination of incapacity. I like this provision.

Pennsylvania
§ 5461.  Decisions by health care representative.
(a)  General rule.A health care representative may make a
health care decision for an individual whose attending physician
has determined that the individual is incompetent if:
(1)  the individual is at least 18 years of age, has
graduated from high school, has married or is an emancipated
minor;
(2)  (i)  the individual does not have a health care
power of attorney; or
(ii)  the individual’s health care agent is not
reasonably available or has indicated an unwillingness to
act and no alternate health care agent is reasonably
available; and
(3)  a guardian of the person to make health care
decisions has not been appointed for the individual.
* Pennsylvania’s statute is the frame on which we built ours; however, we clearly did not follow their lead on provisions such as allowing family to act if the patient advocate is unavailable.

(b)  Application.This section applies to decisions regarding treatment, care, goods or services that a caretaker is obligated to provide to a care-dependent person who has an end-stage medical condition or is permanently unconscious as permitted under 18 Pa.C.S. § 2713(e)(5) (relating to neglect of care-dependent person)
* Here again, Pennsylvania’s statute is aimed at end of life care and ours is not. Michigan is clearly behind patients exercising their right through a patient advocate. It is a big leap to write a Michigan law that authorizes a family member to make a healthcare decision for a formerly competent adult. Our objective is not to change end of life care in Michigan. Instead, our objective is to create an alternative to guardianship for persons who need medical care, do not object to it, and who otherwise would not need a guardianship. In many, many cases this is already being done without the color of the authority of law. Often the person giving consent is not the person who should have priority. The family consent statute that we are presenting provides the correct priority, holds the family member to a standard, and gives the healthcare provider liability protection. It is a marked improvement for Michigan.

(c)  Extent of authority of health care representative.
Except as set forth in section 5462(c)(1) (relating to duties of attending physician and health care provider), the authority and the decision-making process of a health care representative shall be the same as provided for a health care agent in section 5456 (relating to authority of health care agent) and 5460(c)(relating to relation of health care agent to court-appointed guardian and other agents).
* Pennsylvania’s provision here is not workable for Michigan. First, we are not addressing end of life care. Second, even if we did, Michigan’s patient advocate law prohibits a patient advocate from withholding life-sustaining tx if the patient did not explicitly authorize the patient to make decisions that could or would allow the patient to die. So, follow along with me here, if we adopted Pennsylvania’s language in hopes of empowering a family member to make end of life decisions, then we would actually achieve the opposite result. No decision about end of life care could be made absent explicit authorization and direction from the patient. Giving the Michigan family the same authority as a guardian would be pointless since a Michigan guardian with no instructions from the patient would likely ask for a court order authorizing her to make end of life care decisions using a best interest standard. So you see why I observed this Pennsylvania provision and discarded it.

(d)  Who may act as health care representative.
(1)  An individual of sound mind may, by a signed writing or by personally informing the attending physician or the health care provider, designate one or more individuals to act as health care representative. In the absence of a designation or if no designee is reasonably available, any member of the following classes, in descending order of priority, who is reasonably available may act as health care representative:

 Unlike Pennsylvania, we do not see the viability of a statement naming or disqualifying a person to serve as a health care representative. If the patient can take this step on their own behalf then a Michigan patient would be better served if they executed a patient advocate designation.  I refer you back to the discussion of the previous slide if you have any doubt to how true this would be for a Michigan patient.

 (i)  The spouse, unless an action for divorce is
            pending, and the adult children of the principal who are
            not the children of the spouse.
                (ii)  An adult child.
                (iii)  A parent.
                (iv)  An adult brother or sister.
                (v)  An adult grandchild.
                (vi)  An adult who has knowledge of the principal’s
            preferences and values, including, but not limited to,
            religious and moral beliefs, to assess how the principal
            would make health care decisions.
* Our priority list started with this Pennsylvania provision as a guide. We added legal separation and separate maintenance for the spousal provision. We did not include the language about a friend who knows the person’s religious beliefs because we are trying to keep this simple. If the situation does not fit the simple grid we provide then a guardianship is appropriate and your case does not belong here. Again, our version is an attempt to avoid unnecessary guardianships. We are not trying to replace guardianships.

(2)   An individual may by signed writing, including a health care power of attorney, provide for a different order of priority.
 * Again, we want Michiganders who can execute advance directives of any kind to execute a Michigan patient advocate designation.

(3)   An individual with a higher priority who is willing to act as a health care representative may assume the authority to act notwithstanding the fact that another individual has previously assumed that authority.
* We kept this Pennsylvania provision. If the only person available was an adult child and later the spouse flies in from Bermuda, then the spouse can assume authority even though the adult child has been acting as the patient’s representative.

(e)  Disqualification.An individual of sound mind may
     disqualify one or more individuals from acting as health care
     representative in the same manner as specified under subsection
     (d) for the designation of a health care representative. An
     individual may also disqualify one or more individuals from
     acting as health care representative by a health care power of
     attorney. Upon the petition of any member of the classes set
     forth in subsection (d), the court may disqualify for cause
     shown an individual otherwise eligible to serve as a health care
     representative.
* We did not adopt Pennsylvania’s language for disqualifying a potential representative by saying so in a patient advocate designation. A person may always over-ride a statutory hierarchy by providing a document that replaces the statutory provisions. A will replaces the hierarchy provided for intestacy, for example. A person authorized to make decisions in a patient advocate designation would be a patient advocate and not a representative. A person disqualified in a patient advocate designation would simply not be be a patient advocate. The authority of a patient advocate is greater than a representative so we chose not to adopt this provision and to encourage Michiganders to execute patient advocate designations.
(f)  Limitation on designation of health carerepresentative.Unless related by blood, marriage or adoption, a health care representative may not be the principal’s attending physician or other health care provider nor an owner, operator or employee of a health care provider in which the principal receives care.
* Since we only have representatives who are related by blood or marriage, this provision was inapplicable.

(g)  Decision of health care representative.
(1)  If more than one member of a class assumes authority
        to act as a health care representative, the members do not
        agree on a health care decision and the attending physician
        or health care provider is so informed, the attending
        physician or health care provider may rely on the decision of
        a majority of the members of that class who have communicated
        their views to the attending physician or health care
        provider.
* This Pennsylvania provision follows a majority rule that gives all members of the same class a vote. So the representative is not really an adult child. Rather it is all of the patient’s adult children by a majority vote. Some states require all members of the class to agree; otherwise, the decision passes to the next class. Or, the decision must be made by the probate court. In our case, we do not require a majority vote. If there is a dispute, then there is going to be a probate court order for guardianship. I do not know if we are done with this issue yet since it is not clear to me how other members of the class would have notice if their vote is not required before the consent can be given. If the decision is minor, then notice to everyone would be silly. But if the decision is of great consequence, the process should not be overly simple. Families and physicians should be able to come to this conclusion on their own, however.
(2)  If the members of the class of health care representatives are evenly divided concerning the health care decision and the attending physician or health care provider is so informed, an individual having a lower priority may not act as a health care representative. So long as the class remains evenly divided, no decision shall be deemed made until such time as the parties resolve their disagreement. Notwithstanding such disagreement, nothing in this subsection shall be construed to preclude the administration of health care treatment in accordance with accepted standards of medical practice.
* Obviously, we did not adopt this provision either since we have not given the decision making authority to an entire class.
h)  Duty of health care representative.Promptly upon assuming authority to act, a health care representative shall communicate the assumption of authority to the members of the principal’s family specified in subsection (d) who can be readily contacted.
 * Since we are not giving the representative the authority to make end of life care decisions, we chose not to adopt this Pennsylvania provision.

(i)  Countermand of health care decision.
A principal of sound mind may countermand any health
care decision made by the principal’s health care representative at any time and in any manner by personally
informing the attending physician or health care provider.
 * We did not adopt this provision from Pennsylvania’s statute. This would be considered a dispute to be settled in a probate court.

 (2)  Regardless of the principal’s mental or physical capacity, a principal may countermand a health care decision made by the principal’s health care representative that would withhold or withdraw life-sustaining treatment at any time and in any manner by personally informing the attending physician.
* End of life care is not even on our radar.

(3)  The attending physician or health care provider
shall make reasonable efforts to promptly inform the health
care representative of a countermand exercised under this section.
 (4)  A countermand exercised under this section shall not affect the authority of the health care representative to make other health care decisions.
* This is inapplicable.

 (j)  Court approval unnecessary.–A health care decision made
by a health care representative for a principal shall be
effective without court approval.
(k)  Written declaration of health care representative.–An
attending physician or health care provider may require a person
claiming the right to act as health care representative for a
principal to provide a written declaration made under penalty of
perjury stating facts and circumstances reasonably sufficient to
establish the claimed authority.
* We chose to keep our statute as simple as possible and we are giving liability protection without a penalty of perjury statement.

End of Pennsylvania statute discussion.

Pros of family decision-makers
No one cares more about the person than the family
No one knows the person’s religious beliefs and personal values better than family
Strangers with a political agenda should not be allowed to intervene
Judicial intervention is costly and intrusive

Cons to family decision-making
Dysfunctional families
Family conflicts
Family not always close
Family uncomfortable with making the decision
Family sometimes make very unreasonable decisions

Follow up on Nancy Cruzan
Two months after the High Court ruling, the Cruzans asked Judge Teel for a second hearing to present new evidence from three of their daughter’s co-workers. Miss Cruzan’s co-workers testified that they recalled her saying she would never want to live “like a vegetable.” At the same hearing, Miss Cruzan’s doctor called her existence a “living hell” and recommended removal of the tube. Her court-appointed guardian concurred. Judge Teel then ruled that there was clear evidence of Miss Cruzan’s wishes, and on Dec. 14 gave permission for the feeding tube to be removed. Doctors removed the tube and she died.  Rev. Joseph Foreman, the leader of an Atlanta anti-abortion group who was among a knot of protesters outside the hospital that housed Miss Cruzan, said “I sympathize with the hardship of caring for a helpless woman, but I have no sympathy for a family who solves their problems by starving their daughter to death when there were hundreds of bona fide offers to care for her regardless of her condition,” he said yesterday in a prepared statement. “Even a dog in Missouri can not be legally starved to death.”
Lester and Joyce Cruzan said their daughter died peacefully and apparently without pain.

The American Hospital Association has estimated that 70 percent of all hospital deaths are already negotiated in some way, with the concerned parties privately agreeing not to start, or to withdraw, some form of life-support technology or treatment.

“Nancy Cruzan Dies, Outlived by a Debate Over the Right to Die”
By TAMAR LEWIN
Published: December 27, 1990
New York Times