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The Healthcare Power of Attorney and its Importance in Estate Planning

– Authored by: Anisha D. Rutkowski

The Healthcare Power of Attorney is one of the four essential components of a comprehensive Estate Plan. But what exactly does this document do for you? And why do you really need it?

Imagine this. The beginning stages of dementia or some other mentally-limiting condition set in, and you no longer have the capacity to make decisions for your own medical care. In Michigan, the probate court must oversee such matters if a Healthcare Power of Attorney is not in place and you are deemed “incapacitated.” Remember, situations of incapacity may arise through sudden accidents or illnesses as well. Without a Healthcare Power of Attorney, a family member or a friend would have to step in and file a petition in probate court to obtain a “guardian” for you. A probate court judge would then be obligated to make a determination that you are, in fact, incapacitated and cannot make medical decisions for yourself. To make this determination, someone would have to supply the judge with information sufficient to make this finding. The judge would then be able to appoint a guardian for you. This guardian may not necessarily be a friend or relative, as the judge may choose an attorney or public administrator to serve. This process will of course take time and money but, once complete, the appointed guardian will have authority to make medical decisions on your behalf.

But instead of leaving your loved ones to navigate through probate court in the event you become incapacitated, you can use estate planning tools now, while you are of sound mind. You can appoint a “patient advocate” of your choosing who has authority to make medical decisions for you immediately upon your incapacity and without jumping through additional hoops. A designated patient advocate and Healthcare Power of Attorney is legally binding under Michigan law. Your designated patient advocate will be authorized to provide consent to health care providers for any medical procedures, treatment, or medications you may need. Your advocate will also be authorized to make decisions regarding transfers from hospitals to other facilities, such as assisted living or nursing homes.

Because of the importance of the patient advocate’s role, you should choose a trusted and competent individual to serve, and it is certainly best to speak with this individual ahead of time about your decision to name he or she as your advocate and assess their willingness to serve. You should also consider who will serve as your “back up” patient advocate in the event that your chosen advocate cannot serve. If you have specific wishes regarding medical options or procedures, such as life-sustaining treatments, you may provide your patient advocate with these instructions, including sufficient detail regarding the circumstances in which you wish the advocate to act or refrain from acting.

For more information regarding a Healthcare Power of Attorney and Patient Advocate Designation, contact our office today.

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