The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)
STATE OF MICHIGAN
JENNIFER M. GRANHOLM, ATTORNEY GENERAL
ADVANCE DIRECTIVES:
GUARDIAN AND WARD:
HEALTH CARE:
MENTAL HEALTH:
DO-NOT-RESUSCITATE ORDER:
PATIENT ADVOCATE:
Authority of guardian to sign patient advocate designation on behalf of ward
Authority of guardian to sign do-not-resuscitate order on behalf of ward
A guardian of a developmentally disabled adult who is not of sound mind lacks authority under the Patient Advocate Act to sign a designation of patient advocate on behalf of the ward.
A guardian of a developmentally disabled adult who is not of sound mind lacks authority under the Michigan Do-Not-Resuscitate Procedure Act to sign a do-not-resuscitate order on behalf of the ward.
Opinion No. 7056
June 20, 2000
Honorable Charles LaSata
State Representative
The Capitol
Lansing, MI
You have asked two questions regarding the authority of a court-appointed guardian of a developmentally disabled ward to sign advance directives on behalf of the ward. Information supplied by your office indicates that your questions relate specifically to adult wards who are determined by the court to be persons not of sound mind. Answering your questions requires an examination of the Patient Advocate Act, the Michigan Do-Not-Resuscitate Procedure Act, and the Mental Health Code.
When important medical decisions must be made, the patient is consulted and his or her preferences are generally followed. When a patient is incapacitated by illness or injury, however, others must make the medical decisions. To address situations where a patient may become unable to communicate medical decisions, the Legislature has authorized adults to sign two types of advance directive. The Patient Advocate Act, 1998 PA 386, Part 5 of the Estates and Protected Individuals Code (EPIC)1, MCL 700.1101 et seq; MSA 27.11101 et seq, permits an adult to designate a patient advocate to make medical treatment decisions when the patient is unable to participate in such decisions. The Michigan Do-Not-Resuscitate Procedure Act (MDNRPA), 1996 PA 193, MCL 333.1051 et seq; MSA 14.15(1051) et seq, permits an adult to sign a do-not-resuscitate order under certain circumstances, and provides an exemption from criminal and civil liability for withholding medical treatment. Both of those acts explicitly require that an adult must be "of sound mind" in order to sign an advance directive.
The Mental Health Code, 1974 PA 258, MCL 330.1001 et seq; MSA 14.800(1) et seq, authorizes a probate court to appoint a guardian for a developmentally disabled person. Section 618. A guardian fulfills a different and broader role than a patient advocate. A patient advocate can only authorize certain medical decisions. A guardian can act for his or her ward in a variety of situations, not just medical ones. To the extent ordered by the court, a guardian who acts in good faith may authorize routine or emergency medical treatment or surgery or extraordinary procedures and shall not be liable for civil damages for any injury the ward may sustain. Section 629(1). The powers of a guardian who has been given power over routine medical procedures, however, do not extend to the authorization of any "extraordinary" medical procedure, which "includes, but is not limited to, sterilization, including vasectomy, abortion, organ transplants from the ward to another person, and experimental treatment." Section 629(3). Article V, Part 3 of the EPIC addresses the powers of a guardian of an incapacitated person. Except as modified by court order, a guardian may give the consent necessary to enable the ward to receive medical or other professional treatment. Section 5314(c). A guardian may authorize removal of life-extending care, if there is clear and convincing evidence of the ward's expressed, or previously expressed, desires regarding life support under the given circumstances. In re Martin, 450 Mich 204, 227; 538 NW2d 399 (1995). "[I]n general, judicial involvement in the decision to withhold or withdraw life-sustaining treatment on behalf of a minor or other incompetent patient need occur only when the parties directly concerned disagree about treatment, or other appropriate reasons are established for the court's involvement." In re Rosebush, 195 Mich App, 675, 687; 491 NW2d 633 (1992).
Your first question asks whether a guardian of a developmentally disabled adult who is not of sound mind has authority under the Patient Advocate Act to sign a designation of patient advocate on behalf of the ward.
The Patient Advocate Act authorizes a person to designate another adult as a patient advocate.2 The patient advocate may exercise powers concerning the care, custody, and medical treatment decisions for the person making the designation (the "patient"), when the patient is unable to participate in medical treatment decisions. Section 5506 of this Act, which delineates the procedures for signing a patient advocate designation, provides that:
(1) An individual 18 years of age or older who is of sound mind at the time the designation is made may designate in writing another individual who is 18 years of age or older to exercise powers concerning care, custody, and medical treatment decisions for the individual making the designation. . . .
(2) A designation under this section must be in writing, signed, witnessed as provided in subsection (3), dated, executed voluntarily, and, before its implementation . . . .
(3) A designation under this section must be executed in the presence of and signed by 2 witnesses. . . . A witness shall not sign the designation unless the patient appears to be of sound mind . . . .
(Emphasis added.)
The designated patient advocate may exercise only those powers of medical treatment decisions that "the patient could have exercised on his or her own behalf." Section 5507(1) of EPIC. A patient advocate may "withhold or withdraw treatment that would allow a patient to die only if that patient has expressed in a clear and convincing manner that the patient advocate is authorized to make such a decision, and that the patient acknowledges that such a decision could or would allow the patient's death." Section 5507(4) of EPIC. (Emphasis added.)
When read together, these provisions of the Patient Advocate Act demonstrate the Legislature's clear intent that a person must be of sound mind in order to sign a patient advocate designation and that the requisite witnesses shall not sign the designation unless the patient appears to be of sound mind. This legislative intent must be carried out "according to its plain meaning." Dean v Dep't of Corrections, 453 Mich 448, 454; 556 NW2d 458 (1996). Under the facts posed in your question, the person is not of sound mind and, therefore, may not personally sign a patient advocate designation. Moreover, nothing contained in the Patient Advocate Act authorizes a guardian to sign a patient advocate designation on behalf of his or her ward. While the guardian of a developmentally disabled ward is authorized by the Mental Health Code to make medical decisions for the ward, the guardian is not empowered to delegate that authority to any other person by signing a patient advocate designation. Thus, a guardian's designation of a patient advocate for his or her ward who is not of sound mind is not authorized by the Legislature.
It is my opinion, therefore, in answer to your first question, that a guardian of a developmentally disabled adult who is not of sound mind lacks authority under the Patient Advocate Act to sign a designation of patient advocate on behalf of the ward.
Your second question asks whether a guardian of a developmentally disabled adult who is not of sound mind has authority under the Michigan Do-Not-Resuscitate Procedure Act to sign a do-not-resuscitate order on behalf of the ward.
The MDNRPA authorizes a person to sign a do-not-resuscitate (D-N-R) order under certain circumstances, forbids certain persons from attempting to resuscitate the declarant, and provides an exemption from criminal and civil liability for withholding medical treatment. Section 3 of the MDNRPA, which delineates the procedures for signing a D-N-R order, provides that:
(1) Subject to section 5,3 an individual who is 18 years of age or older and of sound mind may execute a do-not-resuscitate order on his or her own behalf. A patient advocate of an individual who is 18 years of age or older may execute a do-not-resuscitate order on behalf of that individual.
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(3) The names of the declarant, the attending physician, and each witness shall be printed or typed below the corresponding signatures. A witness shall not sign an order unless the declarant appears to the witness to be of sound mind and under no duress, fraud, or undue influence.
(Emphasis added.)
The MDNRPA specifies the form of a D-N-R order. The declarant signing the D-N-R order must be of sound mind. The two attesting witnesses shall not sign the order unless the declarant appears to be of sound mind. Health professionals at locations "outside of a hospital, a nursing home, or a mental health facility owned or operated by the department of community health" who determine that a declarant who signed a D-N-R order has no vital life signs, "shall not attempt to resuscitate" the declarant. Section 11.
Reading these provisions of the MDNRPA together, the Legislature's intent is clear. Only adults of sound mind may execute a D-N-R order and may do so only on their own behalf. If an adult of sound mind has previously designated a patient advocate to make medical decisions for him or her, the patient advocate may sign a D-N-R order on behalf of that person. The Legislature has not authorized adults who are not of sound mind to sign a D-N-R order. Likewise, the Legislature has not authorized a guardian to sign a D-N-R order on behalf of his or her ward. Had the Legislature intended the MDNRPA to be applicable to a ward who is not of sound mind, or to the guardian of such a ward, "it would have so stated." OAG, 1999-2000, No 7009, p 10 (March 2, 1999). (Concluding that the MDNRPA does not authorize a do-not-resuscitate order to be executed by a person under age of 18 years or a patient advocate for such person.)
It is my opinion, therefore, in answer to your second question, that a guardian of a developmentally disabled adult who is not of sound mind lacks authority under the Michigan Do-Not-Resuscitate Procedure Act to sign a do-not-resuscitate order on behalf of the ward.
JENNIFER M. GRANHOLM
Attorney General
1 Effective April 1, 2000, the Revised Probate Code was repealed and supplanted by the Estates and Protected Individuals Code (EPIC).
2 The EPIC authorizes designation of a patient advocate under provisions "that are virtually unchanged from the [Revised Probate Code] provisions." Senate Legislative Analysis, SB 209, January 8, 1999.
3 The reference to section 5 relates to persons who, because of religious beliefs, adhere to spiritual means for healing.