Designating someone who can make medical decisions on your behalf if you become incapacitated is an important part of the estate planning process. This is often known as a “medical power of attorney.” Michigan law calls it a “designation of patient advocate.” The person who makes the appointment is known as the patient, and the person they appoint to represent them is the patient advocate. The ongoing global coronavirus pandemic presents significant challenges to patient advocates in Michigan, given the limitations on various activities that are currently in place. The need for quarantine or isolation of a patient could make a patient advocate’s job even more difficult. Michigan law defines the obligations of a patient advocate. These obligations apply regardless of the larger public health context. If you are a patient advocate during these unusual times, you should be aware of your duties under state law.
A patient advocate has the authority “to exercise powers concerning care, custody, and medical or mental health treatment decisions” for the patient. The patient must designate their patient advocate in writing, in a form supplied by state law. When designating a patient advocate, a patient may include a statement with specific wishes regarding their treatment, including when, if ever, they want life-saving treatment to be withheld. The patient advocate may only act for the patient once the patient’s doctor and another doctor agree that “the patient is unable to participate in medical treatment decisions.”
Both state and federal public health laws encourage quarantine and isolation in certain circumstances during an outbreak of a contagious illness. “Quarantine” refers to the separation of a person from others when they have been exposed to an illness. “Isolation” involves keeping a person who has contracted the illness separate from others.
The decision to go into quarantine or isolation is usually left to individuals and families. Public health officials have the authority, however, to require quarantine and isolation in some situations. The federal Centers for Disease Control and Prevention (CDC), for example, can order the quarantine of individuals arriving in the United States or traveling across state lines if they believe the person poses a public health risk.
Michigan officials have the authority to order quarantine at some times as well, but generally prefer to seek voluntary compliance. The Michigan Department of Health and Human Services began requesting the quarantine of individuals who had recently traveled abroad in February.
The governor of Michigan has issued multiple executive orders (EOs) regarding the outbreak of SARS-CoV-2, commonly known as the coronavirus, and the disease it causes, COVID-19. These orders could impact patient advocates’ ability to perform their duties when their patient is in the hospital or at a long-term care facility. The state’s restrictions on travel make exceptions for people who are caring for family members or exercising their duties as patient advocates.
Since March 24, 2020, Michigan residents have been ordered to remain at home and follow “social distancing” procedures. Businesses deemed “non-essential” have been ordered closed. The governor extended this to April 30, and then to May 15, and now May 28, 2020. The current stay-at-home order allows people to travel outside the home for certain activities, including:
Since the coronavirus appears to pose a greater risk of complications and death to elderly people and people with various underlying health conditions, the governor has also issued an executive order that limits entry into healthcare facilities. This order currently lasts until May 31. It makes an exception when entering the facility is “necessary for...the exercise of power of attorney...for an individual under the facility’s care.”
The duties of a patient advocate during a pandemic-related quarantine period are essentially the same as their duties at any other time. The patient advocate owes a fiduciary duty to the patient to represent their wishes. This is the highest duty of care a person can owe to someone else under the law. It means that the patient advocate must act in good faith to represent the patient’s interests, and must put the patient’s interests above their own when making medical decisions for the patient.
The main difference presented by stay-at-home orders and quarantine is logistical. A patient advocate might not be able to travel outside their home to handle the patient’s affairs, especially when the patient or the patient advocate — or both — must remain quarantined or isolated. Remaining in contact with the patient’s doctors and other healthcare providers is essential for making informed decisions. Much of this can be accomplished via telephone or videoconferencing.
Perhaps the biggest problem that could occur in the present crisis would involve the patient advocate also becoming incapacitated. State law does not allow a patient advocate to “delegate his or her powers to another individual,” unless the patient has consented to the delegation in advance. A patient can, however, designate a “successor individual” who may act if the original patient advocate “is incapacitated” or is otherwise unable to act. This should be included in the designation of patient advocate long before it becomes necessary.
Elder law attorney Rebecca J. Braun practices in Southeast Michigan with Mobile Legal Services, PLLC. She is available to assist you with matters involving Medicaid eligibility, estate planning, and related legal issues. She will travel, free of charge, to clients located in Oakland, Washtenaw, Wayne, Livingston, and Southern Macomb Counties. To schedule a free and confidential initial assessment, please contact us today through our website or call us at (734) 407-7657.