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Mar 2005
22
March 22, 2005

Take Control of Your Health Care Decisions to Avoid Being the Next Terri Schiavo

The case of Terri Schiavo has brought to the forefront the issue of patient rights for the incapacitated as well as the level of control (or lack thereof) that we can have over determining our own health care. In Terri's case, she did not have any written directions as to the kinds of treatment she would want, or not want, provided to her if she was in various medical conditions. Had Terri provided some direction in writing as to her wishes, some of the battles between her family members may have been avoided.

Michigan law permits individuals over the age of 18 to create a written document by which you designate the person(s) to make medical care decisions for you if you cannot communicate your own decisions. This is sometimes called a "Patient Advocate Designation" or a "Health Care Power of Attorney." This person will then act as your "patient advocate" and be responsible for consenting to, or refusing, your medical treatment. It is generally recommended that you name a backup to your initial patient advocate in case he or she cannot serve.

You can include in your written Patient Advocate Designation "living will" guidelines, or create a separate living will document. A living will is a statement as to the kinds of treatment you would, or would not, want provided to you if you are in certain medical conditions. For instance, you could provide that if your physician believes that there is no reasonable likelihood that you can be restored to a state of mental and physical health where you can interact meaningfully with other people or your surroundings, that your patient advocate may direct that treatment be withheld or withdrawn.

In Michigan, living will guidelines are very important to include if you would like your patient advocate to have the discretion to terminate, or withhold, treatment, especially if it is life-sustaining treatment such as artificial feeding or water. If you do not indicate in writing that your patient advocate has the power to terminate or withhold life-sustaining treatment, it may be necessary for your patient advocate to petition the probate court for an order permitting the treatment to be withheld or withdrawn. The court will require evidence as to your desires, and without any direction in writing from you, the court will rely on statements from relatives and friends, which may or may not be an accurate recollection of your desires. Court proceedings also delay the decision.

While the courts and medical care providers do give significant deference to your written directions, there can still be room for disagreement between your loved ones and medical professionals. Creating a document in writing will not necessarily prevent battles about your health care, but it is an essential first step in taking control of your health care.

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Susan Gell Meyers is a partner with Warner Norcross & Judd LLP and she focuses her practice in estate planning and administration and closely held business law. Susan may be reached in the Grand Rapids office at 616.752.2184. Warner Norcross & Judd is a full-service law firm with offices in Grand Rapids, Metro Detroit, Holland and Muskegon. Because each business situation is different, this information is intended for general information purposes only and is not intended to provide legal advice.

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