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Michigan Elder Law Today

Sunday, September 8, 2013

When Should You Make a Medical Durable Power of Attorney

In my last blog post, I wrote about designating a patient advocate in Michigan with a Medical Durable Power of Attorney.  This post is about when that should be done.  All Michigan citizens should designate a patient advocate when they become adults, which in Michigan is at age 18.  The reason this should be done when one turns age 18 is that at that age, each of us obtains most of the rights of adulthood and we also lose the protections of having the legal status of being a child.  Once we turn 18, the rights we gain are that no one else can make health care, legal, or financial decisions for us unless a court first determines, after a hearing or trial, that we lack the ability to make these decisions ourselves.  Before we turn age 18, we are legally children, and one of the rights our parents have is to make medical decisions for us. 

As you might imagine, in my 16 years of practicing law, I’ve only drafted a few Medical Durable Powers of Attorney for young adults.  The reason for this is, at that age, they are certainly not motivated to do it and their parents assume they will continue to be able to make medical decisions for them if there is an accident or sever illness.  As such, most people do not designate a patient advocate until later in life.  In my experience, these are the common situations I encounter when people decide to designate a patient advocate:

  • New parents who have just had their first child and who are creating an estate plan for the protection of their baby.  While the new addition to the family is the impetus for contacting an estate planning attorney to make a Will or Trust, I discuss the importance of medical decision making as part of that process.  These clients decide to designate a patient advocate and receive a Medical Power of Attorney as part of a package of estate planning instruments I am providing.
  • People ranging in age from their early 40’s to early 70’s who never got around to making an estate plan before, but are motivated to do it now as part of their overall financial planning.
  • Individuals who have recently been diagnosed with an illness or chronic medical condition or have a surgery scheduled.  An unfortunate medical situation creates an urgency to address this issue.
  • The most unusual one, but something we see time and time again, is that people want to make a estate plan right before they go on vacation.  Apparently, with some people, the thought of going on vacation makes them think they are going to die or become incapacitated.  In reality, it’s unlikely something bad will happen while going on vacation, but since designating a patient advocate is so important, if vacation is the motivation to do it, we can work with that.

On a more serious note, the worst time to create a Medical Durable Power of Attorney is after you are incapacitated, because then you cannot.  I receive calls from time to time from the spouse of incapacitated person or their adult child.  Their loved one is in the hospital or in a care facility and never designated a patient advocate.  Now, due to their medical condition, that person is not aware of their surroundings, may be heavily sedated, or have dementia.  Their spouse or adult child needs to get medical decision making authority for them now.  However, the ill person no longer has the legal capacity to make estate planning documents.  In these situations, we have to fall back on the default probate court guardianship procedures.

I should note that just because one is hospitalized or in a care facility does not mean they cannot make legal documents.  So long as they have legal capacity, they can still make a Medical Durable Power of Attorney.  The legal capacity requirements for this in Michigan are the person must be of sound mind and under no duress, fraud, or undue influence.  To be of sound mind means the person has the ability to understand in a reasonable manner the general nature and effect of his or her act in designating a patient advocate, i.e., they understand what is contained in the legal instrument and that they are appointing someone to make medical and other care decisions for them.  The no duress and undue influence requirement means that someone else cannot be forcing the person to sign the Medical Durable Power of Attorney.  The fraud requirement means they cannot be told they are signing one document when in reality they are signing something completely else.

In conclusion, the best time to designate a patient advocate is after attaining age 18 or now if you have not already done so.


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