If you are permanently mentally incapacitated and are on life support, would you like your loved ones to be able to make decisions for you? Would you like to have your loved ones to be able to withhold and withdraw life support treatment to allow you to die with dignity and let God’s will be done? Would you like to avoid a public proceeding in probate court which would make medical and mental healthcare decisions for you?
If the answer to any of these questions is yes, you should have a durable power of attorney for health care, which is also called a designation of patient advocate. This is the most important estate planning document necessary to avoid probate court involvement with your medical and mental healthcare decisions when, as a former senior partner of mine used to say, you are old and funny. With this document, you choose who is going to make your medical and mental healthcare decisions when you are unable and you specify the guidelines for them to use in making those decisions.
One major medical decision is when to pull the plug. In Michigan, you can avoid probate court involvement in such situations. However, you must specifically express in a clear and convincing manner in your durable power of attorney for health care that your patient advocate can make decisions to withhold or withdraw treatment that could or would lead to your death.
These instructions are called living will provisions. However, they are known by other different names such as medical directives, advance directives or advance medical directives. Most states are living will states in which these provisions are included in a separate document called a living will. Since Michigan is not a living will state, these living will provisions should be included in your durable power of attorney for health care. However, you may still want to also include these instructions in a separate living will to have with you when you are travelling in living will states such as Florida or Arizona.
Without written directives that you put in place, multiple family members may end up petitioning the probate court to make your medical and mental healthcare decisions. Oftentimes, these parties do not agree. Do you remember the Terry Schiavo case in Florida several years ago in which the family battled for some fifteen years over the decision to pull the plug? Would you like that to be you and your family? Whatever your position on the use of life support, now, while you are alive and well, is the time to say what you want.
There is a wide spectrum of directives that you can have regarding end-of-life treatment. On one end of the spectrum, you could say: Keep me alive no matter what, even if I am a complete vegetable. I have had only three persons in 26 years request to be kept alive under any and all circumstances.
On the other end of the spectrum, would be the no code or do not resuscitate (“DNR”) request. With a DNR, you request that you do not want to have any type of resuscitation under any circumstances. Even if you have a minor heart attack and/or you stop breathing, you want no resuscitation. Usually the persons who request a do not resuscitate order already have some debilitating or terminal illness or disease or are at an advanced age such as 85 or above.
Most people are in the middle of the road and only want artificial means of life support to be withheld or withdrawn if they are in an irreversible coma, persistent vegetative state, are terminally ill and artificial means only prolong the dying process or where the burdens of treatment outweigh the benefits.
You can have almost unlimited variations. Some people may not want life support removed unless they have been in one of the above situations more than six months.
Whatever your wishes, as long as they are set forth in a clear and convincing manner, you could put down just about anything that you want. I have had dialysis patients who have requested that upon their permanent mental disability, that dialysis be discontinued, knowing full well that without dialysis, their body would not last but a few days.
I have had cancer survivors who have indicated that in the event of a cancer reoccurrence during their mental disability, they do not want their body to be put through chemotherapy again. It’s all up to you. You have the right to determine your own fate.
You also should indicate what you consider “artificial” means. Is receiving food and water through tubes or breathing with the aid of a machine considered artificial to you? What about cardio pulmonary resuscitation? You decide.
I have many people ask me how they can be assured that their wishes are going to be followed by the hospital or other medical care providers. Fortunately, in Michigan, the courts have made decisions that raise the comfort level that your final wishes are going to be followed. The possibility of a multi-million dollar verdict against a hospital which keeps you alive contrary to your written wishes is a strong incentive to follow your final directives.
So if you want your wishes to be followed by your loved ones without the need of a probate court proceeding, write it down.
By: Matthew M. Wallace, CPA, JD
Published edited April 22, 2012 in The Times Herald newspaper, Port Huron, Michigan as: When to pull the plug