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Spotlight. The Schiavo case has focused the nation’s attention on end-of-life decisions (or lack thereof). On
the television and in the newspapers there has been a great deal of discussion about Living Wills. Even an
attorney representing the American Bar Association, who appeared on Jim Lehrer’s news program, blurred
the distinctions between a Living Will and a Medical Power of Attorney. You could perform a service as a
professional advisor, by making sure that your clients have made some provision for end of life decisions.
The purpose of this newsletter will be explain, simply I hope, the differences between and Living Will and a
Medical Power of Attorney.
Living Will. A Living Will is merely a written expression of individual intentions and wishes concerning end-of-
life decisions. Typically, the document recites that the individual does not want to be kept alive artificially if the
medical prediction is that there is little or no hope of recovery. If Terri Schiavo had executed a Living Will, there
would have been no dispute about her intentions concerning the tubes that had kept her alive for 15 years. If
she had executed a Living Will prior to her brain damaging incident, her husband as Guardian - formally or
informally, under Florida law - would or could have used the Living Will in getting a Court Order approving the
disconnection of her life support.
The Living Will, however, has no legal force outside of Court. It does not authorize medical professionals,
doctors, nurses or hospitals, to take action in accordance with a patient’s wishes. The legally binding
document in Michigan and most other states is a Medical Power of Attorney.
Medical Power of Attorney. In Michigan, a Medical Power of Attorney is a document executed in accordance
with specific Michigan statutes, which appoints a Patient Advocate who has authority to make medical
decisions. This authority commences when two doctors have determined that a patient is no longer capable
of making medical decisions, whether for physical or mental reasons. When a determination of such inability
is made, the Patient Advocate is then authorized to make medical decisions in accordance with a patient’s
wishes (if those wishes have been expressed) and health care professionals are expressly authorized by
statute to follow those directions, even if such directions result in termination of life.
The key to withholding medical treatment or a medical procedure is the legal protection for the health care
professional who withholds or withdraws such treatment. Otherwise, there are always those who would
assert that the duty of health care professionals is to preserve and extend life in any and all circumstances.
We all know that these professionals are trained in life saving and extending procedures. It can always be
asserted that they have a duty to use these procedures, unless there is specific authorization by a patient to
withhold or withdraw a particular treatment or procedure. Michigan statutes provide the mechanism through a
Medical Power of Attorney, sometimes referred to as a Health Care Power of Attorney. The forms provided by
attorneys, hospitals and doctors generally paraphrase the Michigan statute with whatever additions and
embellishments the drafter finds desirable.
Gray Area. Of course, the devil is in the details. There can be many gradations of incapacity and physical or
mental disablement. The existence of a vegetative state, which is diagnosed to be permanent, is probably the
extreme case that we all think about. Most clients do not want to be kept alive artificially under those
circumstances. However, there are many possible invasive medical procedures that might be prescribed in
less extreme cases where opinions may differ and decisions become more difficult. For example, kidney
dialysis, artificial breathing, or invasive surgery, may be prescribed to extend life. The difficult decision then
becomes when to withhold these treatments. Withdrawing feeding tubes is another extreme decision, where
reasonable people can differ in their desires for themselves and probably for loved ones. An individual’s
religious convictions certainly enter into this process.
Individuals may want to be definitive in their choices where there are many possible variables, or on the other
extreme, they may wish to leave decisions about individual procedures up to their Patient Advocate with only
general directions about not wanting to be kept alive artificially if there is no hope of recovery. There are a lot of
variables in between these extremes that can be made part of a Medical Power of Attorney.
Some clients want to be quite detailed in their instructions to their Patient Advocate. Others prefer to be more
general, or to discuss the matter with their Patient Advocate so that they are satisfied that the Patient Advocate
understands their personal views and directions.
The Bottom Line. The bottom line to this discussion is that everyone should have a Medical Power of Attorney,
whether it is a form from an attorney or the form provided by their local hospital or physician. These latter
printed forms tend not to have very much room for expression about various procedures and gray areas.
However, these directions are valid and provide a basis for avoiding a court proceeding with all of the
difficulties that the husband and parents of Terri Schiavo went through in their battle about extending her life.
The Medical Power of Attorney can have as much written direction about the patient’s wishes as the patient
may choose. In that case, the Living Will in effect is an evidence of such directions. We recommend that these
directions be made part of the Medical Power of Attorney, but some clients feel better about having a
document entitled "Living Will". The Medical Power of Attorney, with or without specific directions, is an
standard part of all estate planning services. If, in counseling your clients on financial or tax matters, you have
an opportunity to find out whether your clients have current Medical Powers of Attorney in force, you will be
doing them a service to emphasize the need to make sure that these clients have a Medical Power of Attorney
which meets their needs and objections, and a Living Will, if they want it.
We counsel clients on more than just tax matters and would look forward working with any of your clients who
need experienced counsel. Please contact Jim Modrall at 231-941-9660.
©BRANDT, FISHER, ALWARD & ROY, P.C.
This newsletter is provided for informational purposes and should not be acted upon without professional
advice.
the television and in the newspapers there has been a great deal of discussion about Living Wills. Even an
attorney representing the American Bar Association, who appeared on Jim Lehrer’s news program, blurred
the distinctions between a Living Will and a Medical Power of Attorney. You could perform a service as a
professional advisor, by making sure that your clients have made some provision for end of life decisions.
The purpose of this newsletter will be explain, simply I hope, the differences between and Living Will and a
Medical Power of Attorney.
Living Will. A Living Will is merely a written expression of individual intentions and wishes concerning end-of-
life decisions. Typically, the document recites that the individual does not want to be kept alive artificially if the
medical prediction is that there is little or no hope of recovery. If Terri Schiavo had executed a Living Will, there
would have been no dispute about her intentions concerning the tubes that had kept her alive for 15 years. If
she had executed a Living Will prior to her brain damaging incident, her husband as Guardian - formally or
informally, under Florida law - would or could have used the Living Will in getting a Court Order approving the
disconnection of her life support.
The Living Will, however, has no legal force outside of Court. It does not authorize medical professionals,
doctors, nurses or hospitals, to take action in accordance with a patient’s wishes. The legally binding
document in Michigan and most other states is a Medical Power of Attorney.
Medical Power of Attorney. In Michigan, a Medical Power of Attorney is a document executed in accordance
with specific Michigan statutes, which appoints a Patient Advocate who has authority to make medical
decisions. This authority commences when two doctors have determined that a patient is no longer capable
of making medical decisions, whether for physical or mental reasons. When a determination of such inability
is made, the Patient Advocate is then authorized to make medical decisions in accordance with a patient’s
wishes (if those wishes have been expressed) and health care professionals are expressly authorized by
statute to follow those directions, even if such directions result in termination of life.
The key to withholding medical treatment or a medical procedure is the legal protection for the health care
professional who withholds or withdraws such treatment. Otherwise, there are always those who would
assert that the duty of health care professionals is to preserve and extend life in any and all circumstances.
We all know that these professionals are trained in life saving and extending procedures. It can always be
asserted that they have a duty to use these procedures, unless there is specific authorization by a patient to
withhold or withdraw a particular treatment or procedure. Michigan statutes provide the mechanism through a
Medical Power of Attorney, sometimes referred to as a Health Care Power of Attorney. The forms provided by
attorneys, hospitals and doctors generally paraphrase the Michigan statute with whatever additions and
embellishments the drafter finds desirable.
Gray Area. Of course, the devil is in the details. There can be many gradations of incapacity and physical or
mental disablement. The existence of a vegetative state, which is diagnosed to be permanent, is probably the
extreme case that we all think about. Most clients do not want to be kept alive artificially under those
circumstances. However, there are many possible invasive medical procedures that might be prescribed in
less extreme cases where opinions may differ and decisions become more difficult. For example, kidney
dialysis, artificial breathing, or invasive surgery, may be prescribed to extend life. The difficult decision then
becomes when to withhold these treatments. Withdrawing feeding tubes is another extreme decision, where
reasonable people can differ in their desires for themselves and probably for loved ones. An individual’s
religious convictions certainly enter into this process.
Individuals may want to be definitive in their choices where there are many possible variables, or on the other
extreme, they may wish to leave decisions about individual procedures up to their Patient Advocate with only
general directions about not wanting to be kept alive artificially if there is no hope of recovery. There are a lot of
variables in between these extremes that can be made part of a Medical Power of Attorney.
Some clients want to be quite detailed in their instructions to their Patient Advocate. Others prefer to be more
general, or to discuss the matter with their Patient Advocate so that they are satisfied that the Patient Advocate
understands their personal views and directions.
The Bottom Line. The bottom line to this discussion is that everyone should have a Medical Power of Attorney,
whether it is a form from an attorney or the form provided by their local hospital or physician. These latter
printed forms tend not to have very much room for expression about various procedures and gray areas.
However, these directions are valid and provide a basis for avoiding a court proceeding with all of the
difficulties that the husband and parents of Terri Schiavo went through in their battle about extending her life.
The Medical Power of Attorney can have as much written direction about the patient’s wishes as the patient
may choose. In that case, the Living Will in effect is an evidence of such directions. We recommend that these
directions be made part of the Medical Power of Attorney, but some clients feel better about having a
document entitled "Living Will". The Medical Power of Attorney, with or without specific directions, is an
standard part of all estate planning services. If, in counseling your clients on financial or tax matters, you have
an opportunity to find out whether your clients have current Medical Powers of Attorney in force, you will be
doing them a service to emphasize the need to make sure that these clients have a Medical Power of Attorney
which meets their needs and objections, and a Living Will, if they want it.
We counsel clients on more than just tax matters and would look forward working with any of your clients who
need experienced counsel. Please contact Jim Modrall at 231-941-9660.
©BRANDT, FISHER, ALWARD & ROY, P.C.
This newsletter is provided for informational purposes and should not be acted upon without professional
advice.
| WEALTH CONSERVATION: PROFESSIONAL ALERT Brandt, Fisher, Alward & Roy, P.C. |
| If you would like to receive future editions of the monthly Wealth Conservation Newsletter directly to your e-mail account, please e-mail our office using the following link: Estate Planning Newsletter |
| Brandt, Fisher, Alward & Roy, P.C. Attorneys at Law |
| April 2005 SCHIAVO REVISITED by James R. Modrall III, J.D., C.P.A., David R. Appleford, J.D., L.L.M. (Taxation) |