April 24, 2020
As the folks here in Michigan conclude our 5th week of quarantine, I have been fortunate to learn a couple of things during our government-mandated collective period of reflection: (1) my Ph.D. neuroscientist wife is pretty good with haircuts. Her skill-set has saved me for the Zoom-based court hearings that are suddenly in vogue; (2) Adidas shorts and flip-flops are perfectly acceptable along with your jacket and tie, only as long as you remember to stay seated at those same Zoom hearings.
Historically, my profession has been criticized for being resistant to change. In my humble opinion, the criticism is fair. However, with the sudden growing pains that Covid-19 forced upon us, I believe the practice of law will evolve quickly, and perhaps for the better. As we lawyers continue the transition to on-line consultations and meetings, video hearings and virtual estate plan signings, the “new normal” is slowly but steadily becoming less “new” and more “normal.” The days of the 1:30 cattle-call on motion day is potentially becoming a thing of the past, and that will be a good thing for lawyers and their clients. As I transition my own practice to the quasi-virtual, some folks have recently reached out with questions about medical and financial powers of attorney. They are, frankly, good things to ask about.
For my estate planning clients who have met with me in person in the past, you have likely heard me argue at my conference table that powers of attorney are the foundation of any solid estate plan. Powers of Attorney are, figuratively speaking, the hammer and the saw in your toolbox. This post will concern Health Care Powers of Attorney, as they are definitely the more relevant of the two these days.
So, with that said, what is a Health Care POA? What does it do? And, why do I even need one?
In plain English, a health care power of attorney allows someone to designate a third-party to make medical and other relevant decisions on their behalf, in situations when the person making the designation is not able make those important decisions on their own. For example, the person might have been in an accident, are in a coma and need ongoing care. Or, perhaps they need emergency or life-saving (yet risky) surgery and they cannot make the decision to do so on their own. In another unfortunate – yet common – situation, they might be suffering from dementia and do not possess the cognitive ability to make sound decisions for their own care. A health care advocate might even be given the right to decide if life support should be continued or not.
A well-drafted medical power of attorney can be limited in scope or it can be a broad as the client wishes. It can even be specifically tailored to fit a client’s personal or religious beliefs. Borrowing a term from the garment industry, it is a “bespoke” document. Another advantage is that the existence of medical power of attorney often alleviates the need to seek a guardianship in court. This can ultimately save time and thousands of dollars in legal fees. For many clients this document is deeply personal, and it should be.
The legal requirements for a valid health care power of attorney are found in MCL 700.5506 and are: the individual and the named advocate have to be 18; the document must be in writing; it must be dated; it must be signed voluntarily; it must include a statement that the named advocate can only act when the patient is unable to participate in medical or mental health treatment decisions; when dealing with anatomical gifts, it must include a statement that such power remains exercisable after the patient’s death; it must be witnessed. Additionally, the person signing must be of sound mind and cannot be doing so under duress, fraud or undue influence.
When it comes to estate planning, a health care power of attorney might not seem as exotic as a trust, but there is a lot of power contained within those pages. It is the one document that – literally – deals with life and death decisions. It should not be overlooked in any estate plan and the decision to sign such a document should not be considered lightly.
Be good and stay safe everyone!