POST Set to Join Michigan’s Medical Directive Stew

When it comes to medical care advance directives, we Michiganders have patient advocate designations, advance directives, and do not resuscitate orders. Soon, it appears, we will also have POST forms.  Laws requiring the development of, and allowing for the use of, POST (or Physician’s Order for Scope of Treatment) forms in Michigan have now been passed by both houses and are awaiting the anticipated signature of Governor Snyder.  UPDATE:  The Governor has approved these bills.  The law has an effective date of February 6, 2018.

A POST form is a document that would be signed by a patient and their doctor which would provide direction for the treatment of a specific condition, which direction could include end-of-life choices. The expressions in the form would continue to have effect even if the patient subsequently becomes unable to make their own medical decisions.

A POST form differs significantly from a patient advocate designation or advance directive in that a person may not unilaterally create them. They are created by the patient in consultation with their medical care provider.

Waiting for It. Once these new bills are signed into law, State agencies will initiate a process to develop a standardized form. The use of POST forms will be delayed until that process is complete.  This process could take years.

Let’s look at the soon-to-be new law:

  • A guardian and a patient advocate will have authority to create a POST form for a person who is unable to make their own healthcare choices.
  • A POST form remains revocable by the patient or their representative (PAD or Guardian). A patient may revoke a POST form orally or in writing.
  • If a patient has a pre-existing patient advocate designation that includes an advance directive regarding end-of-life care that is inconsistent with the expression in a POST form, the POST form will take precedence, being treated as a more current expression. Likewise, to the extent inconsistent, a POST form would trump a previously executed do-not-resuscitate order.
  • A POST form expires in one year from the date of creation, or sooner if there is an “unexpected change” in the patient’s medical condition, if the patient moves to a new facility or to a new care level, and if the patient gets a new attending health professional. They may be continued beyond one year upon agreement of the patient or their representative (PAD or Guardian) and the attending medical provider.
  • POST forms would be controlling in institutional care settings, including adult foster care homes; and in the case of an EMS event, outside of institutional care.
  • The probate court has jurisdiction to determine the validity of a POST form. The basis for challenging a POST form would be that the POST form expressions are contrary to the patient’s wishes or best interests.

To read the law, you will want to look at the four House Bills that make up the package of legislation. Most of the law is in House Bill 4070.  Additional changes are in House Bills 4171, 4173 and 4174.  Click on the numbers to read the bills.  What you will see is that the law is mainly in the public health code, with a few conforming changes to EPIC and the Adult Foster Care Licensing Act.

POST forms have been used in some parts of Michigan (without legal authority) for many years. For the record, Jackson County seems to have been the first to implement their usage some 15 years ago.  Other counties have used them for the past few years as part of a pilot program.

POST forms, sometimes referred to as POLST forms (Physician’s Order of Life Sustaining Treatment), are currently in use in several other states. For a good discussion of POST/POLST forms, go to the National POLST Paradigm website by clicking on the name.

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Lay Witness Testimony Regarding Cognitive Impairment

In the recently unpublished Court of Appeals case of Rebecca L. Clemence Revocable Trust (click on name to read the case), the trial judge essentially granted summary disposition in a trust contest case, without summary disposition even having been requested. In doing so, the trial judge expressed frustration that the matter had continued for so long and that, in the judge’s opinion, inadequate evidence of wrongdoing had been discovered.

The Court of Appeals reversed and remanded.

What I find helpful about the case is the COA’s discussion of lay witness testimony as evidence regarding incapacity. We have discussed before the growing inclination of court’s to look for medical evidence as the last word on incapacity and vulnerability.  One of the challenges of handling capacity and undue influence cases is that very few people happened to have medical evaluations done contemporaneously with the event in question.

The portion of this case which I will keep in my notes, provides authority for the proposition that the observations of lay witnesses are admissible evidence of incapacity and, if sufficient, can preclude summary disposition. Specifically, this portion of the opinion is on point:

Certainly it would be easier to prove whether Rebecca possessed testamentary capacity or was vulnerable to undue influence if the probate court could review medical records contemporaneous with her estate plan amendment. But such records are not the only method of proof. A lay witness may place his or her opinions into evidence as long as they “are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” MRE 701. And our Supreme Court has specifically found lay opinion testimony admissible to establish a decedent’s testamentary capacity. See In re Moxon’s Estate, 234 Mich 170, 173-173; 207 NW 924 (1926) (holding that a lay witness “who [has] had the opportunity to observe and talk to [the decedent]” may form “impressions” of the decedent’s testamentary capacity and may cite examples for the factfinder’s consideration);

Proving that an older person suffered from cognitive impairments at that time they executed a document being contested is central to nearly every will and trust contest or case of financial exploitation. Lack of Capacity and Undue Influence remain the most common theories of probate and elder law litigation.  These are often fact-rich cases and discovery is frequently extensive.  Trial judges may have limited patience and are under pressure to close cases expeditiously.  Many trial judges also have a strong inclination to require medical evidence in cases where cognitive impairment is a factor, but such evidence is not always available.  As a result, introducing lay testimony to establish cognitive decline is necessary, and often the best evidence available.  In those cases, it is not unusual when presenting such lay witnesses, for the opposing counsel to assert that the lay witness has no medical training and therefore their testimony should not be allowed.  This case supports the proposition that such objections should not prevail.  Lay people can observe behavior in older adults that suggests impairment, and those observations can be admitted and relied upon by a fact-finder.

 

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