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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.

Guardianship End of Life Authority Clarified

The debate is over. Guardians of adults (but not guardians appointed for persons with developmental disabilities), have authority to sign “do not resuscitate orders” (often called “DNR” orders). The purpose of a DNR order is to preclude medical efforts to resuscitate an individual who is actively dying.

The phrase “do not resuscitate order” is used in at least two settings: in institutions (such as hospitals) and in non-institutional settings (for instance for someone who is ill but being cared for at home). DNR orders in these two settings are distinct in the law – but are both addressed in the new legislation. For some time there has been a divergence of opinions among probate judges in Michigan as to whether or not the guardians they appoint have the authority to sign DNR orders on behalf of their wards. At times this has resulted in unfortunate outcomes.

As a result of Public Acts 155 and 157 of 2013, the conflict has been resolved, and guardians are now authorized to sign off on such orders (which always also require a physician’s concurrence).

The new law took effect February 4, 2014.

The End of Life Tar Pit

I had the most amazing client interview the other day.  A retired attorney in a lockdown unit at an assisted living facility, placed there by his family and against his will.  Perfectly lucid, but deemed to be “unable to make informed decisions” by his doctors – not because he couldn’t understand and articulate his desires, but because the desires he expressed were unacceptable to the listeners: suicide. 

He could explain why he wanted to take his life, and it made sense:  his age, physical limitations, and bleak prospects for quality of life in the future.  I was particularly moved by one of his reasons: having been predeceased by his wife and other family members, he spoke of the possibility – as he said, the “outside chance”  – that he may be reunited with them at death. 

As an estate planner, it is hard not to get trapped in a fascination with the issue of end of life planning.   It is a new concept in the law, and clearly evolving.  Currently only a few states allow assisted suicide. Others states stumble through, as Michigan does, with surrogate decision making laws and guardianships.

Perhaps it is out of our own individual concerns about mortality, and having worked with the aged and infirm long enough to be particularly sensitive to the unpleasantries that often accompany the final phase of life, that estate planners can get so lost in the mire of this area of the law.

At times I think of the role of lawyers in society in terms of a metaphor.  There is a house that humanity resides in.  The dwellers allow only the scientists to go outside and look around, but demand that they come back in and explain that they see the hand of God in nature.  They allow only the lawyers to go into the basement, to inspect and maintain the foundation and utilities.  They demand that the lawyers are able to explain what they see in terms of justice and truth.  The people in the house don’t want to believe that the placement of rocks on which the house was built are the product of randomness – and so the lawyers do their part in keeping the house standing without offending those who dwell there. 

In looking at the way the law handles end of life, I feel this calling most acutely.  Society is faced with an unprecedented issue – we are living longer, but for many, the final years are without quality.  We have a hard time thinking about and talking about quality versus quantity in the context of human life.  So the lawyers struggle with how to explain the rules for ending life, when those rules must supposedly stand on the rocks of justice and truth.

Yes – I am trapped.  But please, don’t pull me out just yet. 

Time To Make Your Death Wish?

Current law provides that we have a constitutional right not to be kept alive if we don’t want to be.  That is, if we are being kept alive artificially, we can have the plug pulled, the feeding tube removed, or our pacemaker turned off, as they case may be.  And, if we are unable to make that decision for ourselves, an agent we appointed while we were competent can make that decision for us.  This is the basis for those legal documents we create now: patient advocate designations (aka durable medical power of attorney) and in some states: a living will.

But that is a different issue: if I am alive and my body is going to keep going, but I don’t want to live anymore, can I have a doctor assist me to die?

Here’s what I see:  The number of people who I talk to who think the time for legalizing assisted suicide has gone is up – way up.  Already legalized in three states (Washington, Oregon and Montana), the genie is out of the bottle – and like legalized marijuana and gay marriages, I figure it’s just a matter of time before it becomes accepted everywhere.

So, for people planning now, and anticipating this coming change, my question is: Should you include a written expression about the circumstances under which you would want your life terminated – a “death wish” as it were?

Put another way, what indignities would you be willing to suffer before you would want to die?  Some common triggers might be:

•  When I don’t know who my children are.

•  When I don’t know who I am.

•  When someone else has to clean me (ie, wipe my butt).

•  When I have to be fed by someone else (because of cognitive impairments, not physical).

•  When I have no meaningful human connections (ie, when no one cares about me or visits me).

• If I am going to die anyhow, that is, the decision has been made to pull my feeding tube, I would rather be assisted along rather than starved to death.

I think a lot of people might decide today that if they met one or more of these standards that they would rather be put to death in a dignified manner than continue to live until their body shuts down “naturally.”  Of course, for some people that is not true.  There are many people who, for instance, don’t particularly care for human connections.  So the drafting of these “death wishes” would have to be tailored to the individual.

I understand this is a sensitive issue.  It involves valuing life.  I understand it could become an avenue to financially driven decisions by insurance companies and greedy kids. But if you have worked with families, as I have, where loving people agree that the subject of our discussion has no quality of life and would never have wanted to live this way, you might appreciate that there must be a way to balance those concerns to allow a self-directed decision on this topic to be enforced in appropriate situations.

Just a thought.