Health Care Law Blog

While guardians previously had no explicit authority to sign a DNR Order under the Act, the issue of whether guardians had implicit authority to act created confusion and uncertainty for health care providers, patients and their families, and probate courts. The confusion stemmed from language in the Act itself, other statutes, and case law interpreting the rights of guardians in various circumstances concerning the health, well-being and provision of medical treatment for their wards. In addition, probate judges throughout the state differed in their interpretations of this issue.

For example, while the Act did not explicitly authorize a guardian to execute a DNR, it contained a savings clause that stated that "The provisions of this act are cumulative and do not impair or supersede a legal right that a … guardian … may have to consent to or refuse medical treatment." Further, the Michigan Estates and Protected Individuals Code (“EPIC”) provides that "A guardian may give the consent or approval that is necessary to enable the ward to receive medical or other professional care, counsel, treatment, or service." It has been argued that the use of the word "may" implies that guardians are empowered to consent to, or decline, medical treatment. Finally, the Michigan Dignified Death Act, although arguably a notice statute, references the authority of guardians to withhold certain medical treatment (although it does not address DNR Orders). Michigan courts have also analyzed these issues in cases including Martin v Martin (In re Martin), 450 Mich 204, 538 NW2d 399 (1995), cert denied 516 US 1113 (1996), and In re Rosebush, 195 Mich App 675, 491 NW2d 633 (1992).

Because of the confusion and uncertainty relating to these laws, many health care providers were hesitant to rely on a guardian’s authority to terminate or withdraw treatment or authorize a “DNR-like Order” without a court order. The revisions to the Act by the new legislation are intended to resolve questions related to a guardian's authority to sign a DNR Order. The new legislation includes a number of changes, such as:

• Providing explicit authority allowing a court-appointed guardian to execute or revoke a DNR Order;
• Revising the definition of a DNR Order so that it applies in an individual’s place of residence and other settings outside of a hospital;
• Revising requirements for information that must be included in a DNR Order; and
• Implementing requirements to revoke or void a DNR Order.

Changes were also made to the Michigan guardianship statute (EPIC) and to the Adult Foster Care Facility Licensing Act. Amendments to EPIC include:

• Imposing a requirement on the guardian to visit the ward within 14 days prior to executing the DNR Order and communicate with him or her, if possible, about executing the DNR Order (the guardian must also consult with the ward’s attending physician prior to executing the DNR Order);
• Imposing certain duties on a guardian ad litem to notify individuals for whom a petition of incapacity has been filed of the powers a guardian could have, if appointed, to execute a DNR Order on the individual’s behalf, and ascertaining, if possible, whether the individual would object to having a DNR Order executed on his or her behalf; and
• Imposing certain reporting requirements on guardians and guardians ad litem.

The revised Act gives greater certainty to health care providers, including nursing homes and hospices, in that a guardian's power to act is more explicitly defined. Disability advocates and others have raised concerns about the scope of the new legislation, and whether the powers granted to guardians under the revised Act are too broad.

Health care providers should review and update their policies and procedures in light of these changes, including policies relating to do-not-resuscitate, informed consent, patients’ rights to withdraw or refuse treatment, and patients’ representatives.

If you have questions about the revised Act, please contact Jennifer B. Van Regenmorter at 616-796-2502.