Issues not typically thought about or discussed are now at the forefront of many people’s minds. During Michigan’s COVID-19 Stay at Home Executive Orders, discussions about life and death are common with friends, family, and loved ones. I recently had this conversation with my husband, Jim:
Me: Do you remember that I designated you as my patient advocate?
Jim: Yes.
Me: If I get COVID-19 and need a ventilator, I want one.
Jim: Why are you telling me this?
Me: I just want you to be clear on what my Patient Advocate Designation means. It states that if there is no reasonable expectation of my recovery, then I don’t want certain things, including a ventilator.
Jim: So, you don’t want a ventilator?
Me: No, I do. Two things are important here. First, if I get COVID-19, I do want to be put on a ventilator if it will help me survive, and second, if I get COVID-19, I do have a reasonable expectation of my recovery so the statement in the Patient Advocate Designation that I don’t want a ventilator won’t even apply. I just wanted you to be very clear as to my wishes.
Jim: Ok, I get it. But to be sure my directions to doctors and hospitals are followed on this, don’t you need to redo your Patient Advocate Designation?
Me: No, the law says I can give you, as my patient advocate, both written and oral instructions, guidelines, and desires for my care, custody and healthcare treatment.
Jim: That’s surprising.
Does Your Patient Advocate Designation Reflect Your Wishes?
It’s a good time to look at your Patient Advocate Designation and be sure its terms are consistent with your current wishes. If not, it’s easy to update the document. However, if updating right now is not possible, you can instruct your patient advocate, orally, with your current instructions.
If your Patient Advocate Designation is like mine, and provides that no ventilator, or respirator, should be used if “there is no reasonable expectation of my recovery,” explain to your designated patient advocate and successors that this language does not mean you don’t want a ventilator if you get COVID-19. Inform them that you if you get COVID-19, you do expect to recover from it, as the odds of survival far surpass the chances of death, and that you want all treatment needed to enable your survival, including being placed on a ventilator.
Is the Right Person Named as Your Patient Advocate?
If the designated patient advocate and successors are not the individuals you want making your healthcare decisions, you should update the document. Changes should be made if those you previously designated have died, or are no longer in your life, or, if your children are old enough to be your patient advocate and you prefer them serving over a sibling or friend.
Talk with Your Patient Advocate About Your Wishes
Now is a good time to talk with your patient advocate and designated successors so they are aware of your current wishes. Knowing what you want will enable your patient advocate to confidently and effectively communicate your wishes to healthcare providers, family members and friends. Knowing your current wishes also reduces the emotional toll on your patient advocate as they implement your wishes.
Remote Witnessing and Signing Is Possible
Michigan Executive Order 2020-41 was very important for the execution of Patient Advocate Designations. Unlike other documents, Patient Advocate Designations must be witnessed by two individuals who are not your patient advocate, heirs, beneficiaries, or employees of a healthcare facility where you are a patient, among others. Remote signing gives you the ability to have two independent individuals as your witnesses so that your Patient Advocate Designation will be effective when needed.
Executive Order 2020-41 made remote witnessing of estate planning documents possible until 11:59 p.m. on May 6, 2020. Many effective dates in Executive Orders are being extended as “Stay at Home” orders are extended. Contact us to confirm availability of remote witnessing if needed after May 6th.
Zoom Meetings
Our office is currently conducting Zoom meetings to discuss and execute Patient Advocate Designations and other estate planning documents remotely. It’s free to use the Zoom meeting platform. Our client checklists make the process easy to understand and Zoom allows us to execute the documents without face-to-face contact.
We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.
Chair of Fraser Trebilcock’s Trusts and Estates Department and serving as Secretary/Treasurer of the firm, attorney Marlaine C. Teahan is a Fellow of the American College of Trust and Estate Counsel, and is the past Chair of the Probate and Estate Planning Section of the State Bar of Michigan. For help with your estate planning needs, contact Marlaine at 517-377-0869 or mteahan@fraserlawfirm.com.