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An adult of sound mind may, in writing, designate another adult to make medical treatment and personal care decisions for him or her in the event he or she becomes unable to participate in such decisions. The adult designated is known as a patient advocate.
A health care proxy is also known as a patient advocate designation and durable power of attorney for health care.
What if I discover the individual has a patient advocate?
Bring the health care proxy document to the attention of the probate court. If the patient advocate is still available and willing to serve, state law provides the patient advocate and not the guardian has priority in making health care decisions.
What is a living will?
A living will is a document in which a person expresses his or her wishes about medical treatment, in the event he or she should become terminally ill or permanently unconscious, and unable to participate in treatment decisions.
Are living wills binding in Michigan?
There is no state statute. But recent court decisions are consistent with the validity of living wills.
Whether binding or not, these documents may provide strong evidence of an individual's wishes.
In general, what powers does a guardian have?
A guardian has the right to authorize or refuse procedures for the diagnosis and treatment of injury or illness. This includes physical examinations, tests, inoculations, dental work, non-surgical treatment and surgery.
What should I do upon being appointed guardian?
If the individual has a personal physician, let her or him know you have been appointed guardian. Find out whether the individual is undergoing any treatment, including taking prescription medication. Ask how often the doctor wants to see the individual.
If the individual doesn't have a doctor, may I choose one?
Yes. The individual should then undergo a comprehensive examination.
Do I have the right to change doctors?
Yes. Certainly if you feel the doctor is not competent, you have an obligation. In other circumstances, consider how the change will effect the individual. If you do change, make sure the new doctor gets all current medical records.
What should I do next?
One important issue is to discern whether the individual needs any adaptive devices: a new prescription for eyeglasses, a hearing aid, a wheelchair.
What steps should I take in making a treatment decisions?
Speak with the doctor about treatment options, side effects, and prognosis. Elicit the doctor's recommendation. Get a second opinion if this is a major decision.
Consult the individual. Try to follow his or her present or prior wishes, if known. If unknown, act in what you perceive to be the individual’s best interest, considering the information available to you.
How do I determine the individual’s wishes?
In making major decisions, if communication is possible, the law requires you consult the individual. Try to talk with the individual in any circumstances. Review any living will or do-not-resuscitate declaration. Contact close friends and relatives about previous statements the individual may have made.
Make sure the doctor knows the wishes of the individual.
Should I speak with family members before making a major treatment decision?
Yes. But the ultimate decision is yours.
Do I have access to medical records?
Yes. You may review the individual's medical records, whether they be in the doctor's office, a nursing home or the hospital. Medical records can be quite difficult to understand; ask for help if you need it.
May I take the individual to medical appointments?
Yes. You should do this if the individual has no other transportation.
May I authorize transportation by ambulance if necessary?
Yes. Have an emergency plan ready before an emergency occurs.
Do I have power to authorize mental health treatment?
A guardian may arrange for outpatient counseling or therapy, and consent to psychotropic medication. A guardian can not authorize inpatient treatment if the individual objects, but must instead seek a commitment order through the probate court.
What type of counseling might the individual need?
An individual might need treatment for depression or affective disorder, counseling for grief or substance abuse.
If the individual has been committed to inpatient treatment by the court, may I move him or her elsewhere?
No. If you feel the individual would be better served in community treatment, or in another facility, first call the community mental health agency. If still dissatisfied, you can seek a hearing before the probate court.
May I authorize an organ transplant to the individual?
Yes.
May I consent to experimental treatment?
It is the best course to seek court approval.
What is life-sustaining treatment?
This inexact term can apply to any medical intervention, such as a respirator, without which a person will die. The term usually applies in situations of terminal illness or permanent unconsciousness.
Do I have the right to order the withholding or withdrawal of life sustaining treatment?
In some circumstances, you would have such power.
Would this include the withdrawal of nutrition and hydration provided through tubes?
Yes.
What is a do-not-resuscitate order?
A do-not-resuscitate order is a note written in a person's hospital or nursing home medical chart. If the individual’s heart beat or breathing stops, no effort is made to revive him or her. Such order is also known as a "no code".
Do I have the power to authorize a do-not-resuscitate order?
You can authorize an order in a hospital setting. You do not have authority to sign a do-not-resuscitate declaration applicable in a home setting.
How do I make decisions about life-sustaining treatment or do-not-resuscitate orders?
First, learn all you can about the individual's medical condition, treatment and prognosis.
Second, review any living will or other advance directive the individual signed, to see whether it applies to the present situation.
Third, attempt to communicate with the individual about the decision to be made. Give him or her an opportunity to express any current wishes. You may abide by expressed wishes if you feel the individual understands the situation. But let family members know of any decision before acting.
What if the individual is unable to express any wishes?
If there is clear and convincing evidence of the individual's wishes expressed previously, follow those wishes. You might find such evidence in a document such as a living will, or from conversations the individual had with friends or family.
What if there less than clear and convincing evidence?
For usual decisions, consider any evidence available. If the decision concerns withholding or withdrawing life-sustaining treatment, you can petition the court for direction.
How do I weigh evidence?
Consider how long ago the wishes were expressed, how thoughtful and consistent they seem, and how specific they were.
What if there is no evidence of previously expressed wishes?
You must act on what you perceive to be the best interests of the individual. If the issue is life-sustaining treatment, petition the court. The court might be interested in the following factors relating to the individual:
- Present level of awareness and functioningMay I approach a medical ethics committee in a hospital for their input?- Amount of pain from the condition, the treatment and from withdrawal of treatment
- Loss of dignity from the condition
- Life expectancy with and without treatment
- Risks and side effects of treatment
Yes.
What if an individual is at home and a decision has been reached not to resuscitate?
If you are present at the individual's death, do not call the police or 9-1-1, as that will trigger the emergency medical system.
Contact the doctor, or if the individual is a hospice patient, the hospice nurse. Either a doctor or a registered nurse can pronounce death.
What if I am unsure whether I have the power to make a medical or other decision?
You can consult a lawyer for advice. If you are still unsure, you can petition the court for instructions.
To petition, request a hearing date from the court, and send a notice of hearing and a copy of the petition to interested persons. Notice should be sent to interested persons at least 14 days before the hearing, and personally delivered to the individual at least 7 days before the hearing.
PC 586 Petition and OrderWho are interested persons?PC 562 Notice of Hearing
- The individualWhat do I do after delivering the copies?- The individual’s spouse and adult children
- If no living spouse, child or parent, the nearest relatives
- If no known relatives, the state Attorney General
File a proof of service with the court.
PC 564 Proof of Service
Courts once held an individual with a guardian could not get married. The statute upon which courts relied has recently been repealed. It is best to petition the court for authority when the issue of the marriage of the individual occurs.
What are my powers to pursue divorce on behalf of the individual?
The court can grant you power to pursue divorce.
The number of times you should visit the individual is dependent on the needs of the individual. Factors include whether the guardianship is limited, the living situation of the individual, his or her health, the effectiveness of telephone contact, and the incidence of visits by others the individual knows.
For some individuals, one visit each week would be appropriate; for others, once a month might suffice.
Is there a minimum number of visits required by the court?
Yes. You must visit within three months of your appointment, and then within three months of each previous visit. In each year, therefore, you must visit a minimum of four times.
How long should each visit last?
Again, this depends on the needs of the individual. Some individuals may prefer shorter visits, occurring more often. Others may need time to emerge from a withdrawn state.
What are some purposes of visits?
One purpose is to ensure the daily needs of the individual are met. This is important both for individuals living in their own homes and for those in nursing homes or adult foster care homes. Staff may be more attentive to the needs of an individual who has visitors.
During the visit, you can observe the physical appearance and frame of mind of the individual, listen for any complaints from the individual, check on his or her possessions, and consult with staff.
Visits are also a means to develop a relationship of trust and to learn more of about the wishes of the individual.
Finally, a visit is social contact for the individual. For some, a guardian will be the only visitor he or she has, the only link to the community.
May I take the individual on outings?
Yes, although this is not a requirement. As guardian, you should be aware of what you must do and what you can do. Without efforts by the guardian, the individual may be unable to enjoy a ride in the sunshine, a restaurant meal, a trip to the movies, an opportunity to shop.
Should I arrange visits in advance?
You should honor the wishes of the individual in this regard.
Need I inform a nursing home in advance of a visit?
No. Indeed, for purposes of judging the care an individual is receiving, it is better if the nursing home does not know of a visit in advance.
Can a nursing home restrict my access to the individual?
No.
Should I keep a record of visits?
Yes. Note in a diary the date of a visit, the amount of time spent, any contacts aside from the individual, and your observations.
A guardian must file a written report annually on a court form.
PC 634 Annual Report of GuardianWhen is my first annual report due?
The annual report is due within 56 days of the anniversary of your appointment. The due date for the report is important - write it down on your calendar each year.
What does the report include?
In the report, you must inform the court of the individual's:
- Living arrangementHow might I make it easier to complete the report?- Physical and mental health
- Medical treatment
- Social activities
- Visits
- Need for continued guardianship
One good idea is to keep an informal diary, including dates of your visits, doctor appointments, services obtained and significant occurrences. You can then use information from the diary in completing your report. A sample blank diary is included later in this booklet. (Web master note: The sample blank diary is not available in this online version)
Although not required as part of the report, it may be helpful to keep a record of the time you spend on guardianship matters, broken down into visits, appointments, errands and paperwork.
Is there a court fee for submitting the annual report?
No.
To whom must I send a copy of the report?
You must send a copy to each interested person. You should deliver a copy to the individual in person.
Need my report include an account?
The court might require you to attach an account to your report if you control any of the individual's finances.
PC 583 Account of FiduciaryWhat is an account?
An account shows all money and property received during the year, and all expenses. Both receipts and expenses can be listed by category. For example, the total amount of Social Security checks received during the year, or the total amount paid for nursing home expenses can be listed on a single line.
An account also shows the value of all property left at the end of the account period.
What if the individual receives benefits from the Veterans Administration?
If you control a benefit the individual receives from the Veterans Administration, send a certified copy of the account to the VA regional office.
What if there are other things I want to inform the court about?
You can include any information you feel would be helpful to the court on a separate piece of paper and attach it to the report.
What happens if I can't get my report in on time?
You may request an extension. If you fail to file a report, you can be suspended or removed as guardian.
What are purposes of the annual report?
The report provides feedback to the court and to interested persons on the condition of the individual and the performance of the guardian. As guardian, use the report as an opportunity to reassess your role.
Is there court oversight aside from the annual report?
Yes, one year after appointment of a guardian, and every three years thereafter, the court will appoint a visitor to speak with the individual, to speak with the guardian, and to report back to the court.
How should I deal with the visitor?
You should cooperate. Share any concerns you have. See this as an opportunity to get another perspective, and to get recognition for a job well done.
Who will get a copy of the visitor's report?
Both you and the individual will receive a copy of the report.
PC 636 Report on Review of GuardianshipTop of PagePC 637 Order Following Review of Guardianship
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Last Updated 12-12-02
Send your comments, questions and suggestions to Phil Harter at 161
E Michigan Avenue, Battle Creek, Michigan 49014 or
e mail to pharter@calhouncountymi.gov