Michigan Q and A

Ten commonly asked questions about PAD’s for Michigan

Please note: the following 10 FAQs are designed to provide a quick and accessible guide to what your state’s statutes say – or do not say – about PADs.  The FAQs do not attempt to provide a complete picture of the law in your state, nor can they take the place of legal advice.  These answers are accurate as of September 2019.

1.  Can I write a legally-binding psychiatric advance directive (PAD)?  

Yes, by appointing an agent, called a patient advocate.  Michigan’s Durable Power of Attorney and Designation of Patient Advocate statute  allows you to appoint a patient advocate to make mental health care decisions for you if you become incompetent to make those decisions yourself.  You may also state your wishes regarding mental health treatment.  In Michigan, a PAD is known as an “Advance Directive for Mental Health Care”.  The Michigan Bar Association has published a helpful pamphlet and forms, available here.

2.  Can I write advance instructions regarding psychiatric medications and/or hospitalization?

Yes, but to do this you must also have appointed a patient advocate.  It is not currently possible to write binding, freestanding mental health instructions.

3.  Does anyone have to approve my advance instructions at the time I make them?

No.  However, your form must be signed by two witnesses, who must declare that you were of “sound mind” and not under duress when you created the document.  Your spouse, parent, child, grandchild, sibling or heir cannot act as witness, nor can the patient advocate him or herself.  Further, an employee of your health care, community mental health or residential care provider cannot act as a witness.

4.  Can I appoint an agent to make mental health decisions for me if I become  incompetent?

Yes, as outlined above.

5.  If I become incompetent, can my agent make decisions for me about medications, and/or hospitalization?

Yes.  If you become incompetent, your patient advocate has the same power over your mental health treatment and care that you would have had if competent.  This includes the power in principle to admit you into a hospital or allow forced treatment, although your patient advocate can only exercise this power if there is clear evidence that it was what you wanted, before becoming incompetent.  It is a good idea to address this question on your form so that your wishes are clear to your patient advocate and clinicians.

6.  Does my agent have to make decisions as he/she thinks I would make them (known as “substituted judgment”), or does he/she have to make them in my “best interests”? 

The statute says that your patient advocate must act in your best interests, but also states that wishes of yours within the patient advocate’s knowledge are by definition in your best interests.  Therefore, your patient advocate must act as you would act as far as possible.

7.  Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?

Yes.  As explained above, it is not possible to write advance instructions only.  To create an Advance Directive for Mental Health Care, you must appoint a patient advocate, but the extent to which you also document your decisions is up to you.

8.  Before following my PAD, would my mental health care providers need a court to determine I am not competent to make a certain decision?

Not usually.  The statute states that the patient advocate’s authority begins when your attending physician, plus another physician or psychologist, determine that you are “unable to participate in medical treatment decisions” and put that decision in writing.  If that determination is disputed, the matter may be put before a court.

9.  Does the statute say anything about when my mental health providers may decline to follow my PAD?

Yes.  Your providers may decline to follow your patient advocate’s instructions, or your written instructions, if (1) they are inconsistent with “generally accepted community practice standards of treatment”; (2) any requested treatment is not available; (3) complying would be inconsistent with law, or court-ordered treatment; (4) otherwise, there is an emergency situation endangering your life.

10.  How long does my PAD remain valid?

Your Power of Attorney is valid until revoked.  You may revoke it at any time, orally or in writing.  If you appoint your spouse as your agent and subsequently become divorced, you must amend your document to make it clear who should serve as your agent.