Advice From Your Advocates

Your Healthcare, Your Terms: Take Control with Healthcare Directives

February 02, 2024 Attorney Bob Mannor / Attorney Bob Mannor Season 1 Episode 38
Advice From Your Advocates
Your Healthcare, Your Terms: Take Control with Healthcare Directives
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Unravel the complexities of healthcare directives with the expertise of Kelli King-Penner and myself, Bob Mannor, as we guide you through the legal maze of ensuring your medical wishes are respected. This enlightening conversation promises to illuminate Michigan's unique patient advocate designation and why it might be a better alternative to a living will. We don't just scratch the surface; we delve into the nuances that distinguish the healthcare power of attorney from the financial and why having clarity in your legal documents can make all the difference during a medical crisis.

When it comes to making life-and-death decisions, many are unaware of the dance between autonomy and legalities, especially in emergent situations where DNR orders may not be straightforwardly honored. Our chat explores this sensitive terrain, underscoring the need for regularly updated healthcare directives that can keep pace with the evolving nature of health conditions like dementia. With Kelli's seasoned insights, we confront the reality that what's written on paper doesn't always align with the rapid decisions made in emergency responses.

Mental health considerations in legal documentation take center stage in our discussion, addressing an element that's too often neglected yet crucial for comprehensive healthcare planning. We dissect the legal safeguards that protect your decisions, even in the face of cognitive challenges such as those caused by various forms of dementia. Kelli provides advice on the meticulous execution required for healthcare power of attorney documentation, reminding us of the priceless value of expert legal guidance. This episode is an essential listen for anyone dedicated to safeguarding their healthcare journey or the journey of a loved one in the most legally sound and personally tailored way possible.

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ABOUT US:
Mannor Law Group helps clients in all matters of estate planning and elder law including special needs planning, veterans’ benefits, Medicaid planning, estate administration, and more. We offer guidance through all stages of life.

We also help families dealing with dementia, Alzheimer’s disease, Parkinson’s disease, and other illnesses that cause memory loss. We take a comprehensive, holistic approach, called Life Care Planning. LEARN MORE...

Attorney Bob Mannor:

You're listening to advice from your advocates, a show where we provide elder law advice to professionals who work with the elderly and their families. Welcome back to advice from your advocates. I'm Bob Mannor. I'm a certified elder law attorney in the state of Michigan, and Today our guest is the director of operations at Mannor Law Group and the supervising attorney at Mannor Law Group, Kelli King Penner. Welcome, hi.

Attorney Bob Mannor:

So we're gonna talk about something that is very important to most people, and this is probably the thing that people are Most concerned about, most passionate about, really is their health care decisions. Okay, so it is often referred to as a health care power of attorney or patient advocate, and we're gonna dive into this, because a lot of people think, oh, this is a simple document, just put your name on it, you sign it, but there's some nuances that you I really hope that you pay attention to. They could make life a lot easier for your family if you ever face a medical crisis. This is different Than a durable power of attorney or a financial power of attorney. It must be a separate document. So, kelly, first let's start off with why does the Medical power of attorney or patient advocate have to be different than a durable power of attorney?

Attorney Kelli King-Penner:

Yeah, the most glaring reason is because they're actually controlled by different statutes. So the Financial power of attorney right now is a little bit in flux and we have a previous episode about that if you're interested in it. That is gonna be controlled by in long-term admission in the uniform durable power of attorney statute or it's a separate section. Right now, the finance or the health care one is controlled by the states and protected individuals code and it has certain requirements for a valid patient advocate or a health durable power of attorney for health care. It has different requirements in terms of how it is signed, so what is required by it, and it's very different from the financial power of attorney. There's some overlap which can cause confusion. But the health care one has very specific requirements that have to get met and if it's not met there's not really a good way to save it.

Attorney Bob Mannor:

So we're in Michigan and we realize that there's folks that listen to this podcast that are outside of Michigan. So a couple things we're going to be very Michigan specific about, and One of them is Is this different than a living will?

Attorney Kelli King-Penner:

Yes, michigan does not have a living will statute.

Attorney Kelli King-Penner:

A living will is basically a form of an advanced directive.

Attorney Kelli King-Penner:

So if you think about it in terms of this, a living will is you setting forth what your wishes would be under certain circumstances.

Attorney Kelli King-Penner:

So think about four corners of a document.

Attorney Kelli King-Penner:

So if we have a piece of paper, that piece of paper is going to highlight different things that we want or we don't want.

Attorney Kelli King-Penner:

That piece of paper is then supposed to speak for us, or supposed to be a directive for us to say, hey, in these circumstances, I want this kind of medical treatment or I don't want this kind of medical treatment. Where Michigan's approach differs in any state that has a patient advocate in mind is that they still have the four corners of the document, but in terms of the person who advocates or who speaks for you, that is a person, that is someone else who you have appointed because you love and trust that person to make decisions for you with regard to your medical decisions or your health care decisions that will take direction from that document, but then they are your advocate for your best interest. So it's actually a person that is speaking for you rather than a piece of paper, and there's some really significant pros to that over a living will situation, because a document doesn't do a great job of speaking for you or it can be misinterpreted.

Attorney Kelli King-Penner:

We know that words sometimes can be not interpreted the same way. If you've ever read an email from a coworker and you're like, wow, this person seems really angry today you're reading a tone into that.

Attorney Kelli King-Penner:

that may not exist, and the same thing I think we see with the living will, especially in a health care scenario. I don't think health care, much like law, is black and white. I think there's a lot of shades of gray. There are certain circumstances where you would want medical treatment that you would not want under other circumstances and that's where I really think that the advocate is a better approach for handling those types of decisions.

Attorney Bob Mannor:

I agree with you on that, and that actually goes to a deeper sort of philosophy that we have with all of the legal documents, and so sometimes I see some of these documents that are really harsh in the if things change, you still got to follow the way that we set it out in the will or the way that we set it out in the trust. What we encourage people to do, and how we almost always draft our documents, is to build in flexibility, because if we know nothing from the last few years, we know that the world will change, your life will change, your family will change. We don't know what the world looks like in 10 years or 20 years or even next year. The people that you appoint might not be alive, they might not be healthy, they may have moved to Alaska, the laws may have changed. So what we try to do is make sure that we're writing these documents to be flexible, to be able to adapt to the things that we now know.

Attorney Bob Mannor:

You can't know if you've never had cancer. You can't know how you'd want to face that cancer because you haven't had it. It's not an experience that you had. Once that's there, you have a better chance of analyzing the information. Well, what if you have incapacity? That's going to change the fact. You might say, well, I would want to fight that cancer till the end, but what if you also have severe Alzheimer's? Would we still be treating that cancer? I mean, things change. That's why we want to build flexibility and that's why I, like the patient, advocate better, because you're appointing somebody you love and trust to help articulate what you want based on the new information that came in. 10 years from now, 20 years from now.

Attorney Kelli King-Penner:

The conversation that you had at Christmas. How is that impacted by that? I routinely counsel our clients on not only appointing those people but having frank conversations with them about what kind of treatment you want or do not want. And especially, I can say you know the plan that I thought in my 20s when I was like enroll in a role right, you're never going to die. It's very different. I have a different approach. The more I see family members go through illness, the more I experience in my own life. So that's definitely something you want to update and change from a philosophy standpoint, and that's why I'm just a huge fan of the advocate, because I just feel like that is a much more personal relationship for something that is a relatively very personal decision.

Attorney Bob Mannor:

Exactly so. I'm going to talk about something that seems like it's a different one. It is, but we want to make sure it's incorporated, so tell us what the HIPAA law is and tell us whether or not this document should be HIPAA compliant.

Attorney Kelli King-Penner:

Right, so HIPAA is a federal statute and what is and I there's, so I could do a whole like episode on what HIPAA is and what HIPAA isn't. The important things to understand about HIPAA is it is a privacy protection law. What it is designed to do is that people that we entrust with our medical information protect and hold that information at the most level of security. That is what it is designed to do is that we don't share our personal health information with people that we do not need to share. To share our protected health information with HIPAA is not in itself, a patient advocate designation. It is not allowing someone to make medical decisions for you. How I always explain HIPAA is it is flow of information. So it is saying what information we are allowing our health providers to share with other people that otherwise would not be entitled to that information. So it's a privacy law.

Attorney Kelli King-Penner:

So if you sign a HIPAA release and I'm sure any time that you check into any kind of medical office, when they give you either the iPad or the stack of forms that you're supposed to fill out, there is a HIPAA release every single time. That is going to be specific to that office that you're seeing. Hipaa is great to fill out in that circumstance. Absolutely fill that out. But if you're in an emergency, you may not be in that health system and that's where having kind of a generic HIPAA release as part of your state planning documents is important. But it is not a decision making tool. It is who gets access to certain kinds of information and it can be very broad, saying I don't care, they can have my records back from birth. Or it can be very specific to say this doctor can share this information within this period of time with these people. So it's really important to understand that it's an information flow law and not a decision making.

Attorney Bob Mannor:

Yeah. So I want to drill it on on two points that you just made. So I'm being a little bit repetitive, but I just want to highlight those two points. One is the document. Your patient advocate or health care power attorney must be HIPAA compliant. But we recommend you have a separate HIPAA release. That might have different people in it, but even if it's not different people, you should still have a separate HIPAA release because in order for the health care document to be active at all and wave that HIPAA, it has to be activated, and we're gonna talk in a second about what that means to be activated. But sometimes you wanna share information with people without activating that healthcare power of attorney. So it's actually a separate document, very simple, usually one page. But we recommend those two documents. What do I mean when I say activate your healthcare power of attorney?

Attorney Kelli King-Penner:

So this is an important distinction again from the financial power of attorney. You remember different rules and I mentioned that there was different execution requirements. There also can be different effective requirements and that gets really technical on the financial side. But on the healthcare side it has to be activated and in Michigan there is a very specific way that that is activated and it basically is a determination by two medical professionals. In Michigan we authorize a physician or a licensed psychologist is the one that can do an evaluation and determine whether or not you have competency to partake in your own medical decisions, meaning that you understand what is being told to you about risk, pros and cons, anything with your medical treatment. If you are no longer able to participate with that, that's when that healthcare power of attorney is triggered by those two doctors signing off to say, after an evaluation and there's no set language for this but after an evaluation this person is no longer able to participate in those types of decisions.

Attorney Bob Mannor:

And that can be ongoing, and so we often are doing some education or some training for folks in the healthcare industry nurses, medical staff, social workers, things like that and one of the questions they always ask us is if it's been activated by two doctors, is that good for the rest of their life, or how often should that be reactivated by another evaluation?

Attorney Kelli King-Penner:

A good practice is at least once a year that should be evaluated. But because it is kind of a hard field to navigate and it really is circumstance dependent, we know that and I'm sure any of you that have had loved ones with memory issues, alzheimer's, dementia you know that there are good days and bad days. It's possible for that to go in and out. So if you have a much more dynamic situation, that's something that you're probably monitoring a little bit closer, but on a very basic level that should be at least evaluated once a year, with the opportunity to maybe revisit that more often depending on the circumstances.

Attorney Bob Mannor:

So I wanna get very clear on this about the activation of the document. Another way of saying it is you always get to make your own decisions, always get to make your own healthcare decisions, even if you've signed the document. We often have the jokers. Usually it's the man telling the dad jokes and when he's ready to sign this document he'll say oh, my wife's just gonna pull the plug as soon as they have a cold. And he's joking about it, of course, but that doesn't work. Right that it has to be activated. You always get to make your own healthcare decisions unless and until you can't, because you're unconscious, like in a coma, or because you're not capable of making those decisions anymore, according to the doctors.

Attorney Kelli King-Penner:

Right, and I think most people think about. When we talk about incapacity, they're usually talking about the coma situation, right? So if I'm unconscious, I'm clearly not able to communicate. Where a lot of people don't think about it is where I'm not able to process that and understand what's being told to me, Because you do have a right to say no for medical stuff. You need to understand what they're telling you, what your pros and cons are, and that's where it can get to be a little bit more fuzzy and that's where it's a little more dynamic.

Attorney Bob Mannor:

So I've got two sort of controversial questions for you. One is and we've seen this happen many times if a person has signed a DNR and they DNR, do not resuscitate. Let's say the person themselves signed it or at least they expressed their wishes that they do not want to be resuscitated. If they code, meaning they're gonna die if you don't do some CPR or something, and they've expressed their wishes many times, but at that minute the EMT and it feels that that person is capable of making their own decisions and they say I want to live, please give me resuscitation or whatever.

Attorney Bob Mannor:

Obviously there could be other situations where you're talking to the doctor. If that person still has legal competency, they can change their mind at the last second. That says difficult for families sometimes, because it could be that dad has said for years I never want to be kept alive on machines, I never want to be kept in a state where I'm just hooked up to the hospital and yet when push comes to shove, and if dad still has that level of competency, he changes his mind in that second. What's the answer? What is the doctor supposed to do?

Attorney Kelli King-Penner:

The doctor's supposed to look to dad for directions. I mean, when it comes to your personal medical decisions, you're allowed to change your mind about what you want, and I think you had mentioned this earlier in terms of the worldwide pandemic that we went through. There were so many people I would talk to that they would say I would never want to be on a ventilator for any period of time. Well, we knew that going through that that was sometimes your best case scenario for it, and we have to be able to adapt to those circumstances.

Attorney Kelli King-Penner:

with that change in feeling, I feel like a lot of times we can sit up on the mountain and like philosophize about what we want but when push comes to shove, you are entitled to change your mind on that, and when it's your healthcare decision making, you should have the ability to change your mind on that, as long as you are able to articulate that.

Attorney Bob Mannor:

So my next question is something that also people don't like. The answer to it and it's not always consistent, but we're telling you is what the law says about this. So in your particular circumstances, the people that were there may have acted differently, but if you're at home and you're dying and you have every document out there and you have them stapled to your sleeve, so it's right there, they can see it says I have a patient advocate who can say that I don't want treatment. I have a DNR. Maybe even if you call the police or the paramedic and they show up your house and you're dying, are they going to resuscitate? Even if they see that paperwork right in front of you, maybe laying on your chest, are they going to resuscitate?

Attorney Kelli King-Penner:

Most of the time, yes, I would say almost all the time that they're going to do that.

Attorney Bob Mannor:

So now here's a reason why. So a lot of people say that's outrageous. I've expressed my intentions. I'm not capable of saying what I want anymore. There's the person there saying, articulating what I want. That's tattooed on my chest.

Attorney Bob Mannor:

Whatever it is, how dare they resuscitate me when I've made it very clear and there's a simple answer it's the logistics, it's the practicalities of it. If the police are called, they're supposed to do their job. If the EMT is called, they're supposed to do their job. They're not going to stop and call their lawyer. They're not going to stop and get a legal determination as to whether or not this is a legal document or not. So it's certain that there are times where this happens and you've got the paperwork out there and the EMT says okay, we'll honor those wishes. But it wouldn't be against the law for them to say I'm going to resuscitate, you called the police.

Attorney Bob Mannor:

To the extent that we've advised families sometimes that if mom or dad is dying at home and you expect that that's the plan, we know they're dying and we're expecting them to die at home and we don't want to go to the hospital. The answer is wait a while after they die before you call the police. So a lot of times for the funeral, even if you call the funeral home, they'll say, hey, we need. You know, we did this with my parents. We called the funeral home. The funeral home said you've got to call the police. We got to have that report, you know. But we waited a few hours because we didn't want them to try to do a resuscitation or, you know, take them to the hospital or things like that. We knew they were dying and we wanted to make sure that there was no pain or suffering associated with resuscitation. So sometimes, if that's the plan, we advise families okay, once you believe that the person has passed, if that's their plan is to die at home and not die in the hospital, we don't call the police, we don't call the paramedic, we wait a few hours and then we call and then you know they're not going to try to resuscitate somebody who's already deceased, and, you know, not recently. So, okay, so those are a little controversial, those aren't fun to talk about, but you need to know these types of things.

Attorney Bob Mannor:

I want to talk about something else that shouldn't be controversial but maybe is, and that is provisions that we put in our documents that I hardly ever see. Many. I have some of my friends. Kelly teases me that I tend to be very chummy with a lot of the older attorneys, the older generation attorneys that have gone before us. They're more likely to include this kind of language in there and it's just frequently not in there. And it's called. It's actually part of the mental health code. I think it might be part of the epic too. It must be part of epic too.

Attorney Kelli King-Penner:

It's part of epic and the fact that it has to explicitly authorize it.

Attorney Bob Mannor:

But it's called mental health decisions and that's, of course, important if the person you're working with has any mental health issues like bipolar or depression or those types of things. But the reason why we put it in there isn't for bipolar or depression or things like that. We put it in there because of dementia.

Attorney Kelli King-Penner:

Right, Alzheimer's, dementia. How I always explain this is you got to think about your mental health and mental illness. People tend to love mental health with mental illness. Mental illness is the smaller part of a larger pond Anything with our mental health. So we have our physical health right. So I have my ability to, you know, move my body, to sign my name, to do things like that. My mental health is my processing ability, my ability to make reasonable logical decisions and to understand what I'm doing. So when we talk mental health, yes, we're of course always talking about mental illnesses and that part of it, but what I'm more so talking about is your ability to reason and to understand certain things because of how that document is triggered. So I mentioned it's an exam by a doctor that says you know, you cannot participate, and we've already kind of talked about your physical incapacitation versus your mental incapacitation. So when we talk about making mental health treatment decisions, sometimes it's not going to be due to mental illness.

Attorney Kelli King-Penner:

It's going to be because of your inability to logically reason and connect those dots anymore. Where you need somebody to help you, you need someone to stand in your shoes, to be your advocate and to look out for your best interest. And with mental health portions of that, I mean we've seen this in our office somebody can come in in peak physical condition but they've got progressive Alzheimer's to the point where they can't remember how they're, how they got here. They can't necessarily remember to do any of that stuff, let alone make high functioning decisions when it comes to that. So having that mental health language in your health care power of attorney is very, very important because it may not manifest as a physical symptom.

Attorney Kelli King-Penner:

I think that's what we all tend to think is that it's going to manifest as a physical thing I'm not going to physically be able to get to the bank or I'm not going to physically be able to communicate with the doctors, and really when you're doing that, you're missing out on a very large portion of what could happen. So incorporating that mental health is very important and I rarely see it in documents, so it's a common conversation I'm having.

Attorney Bob Mannor:

So, to be clear, what that provision which is not in most people's documents says is that if you are declared that you don't have capacity to make your own decisions anymore you don't have competency to make your own decisions anymore with regard to your health care that you cannot revoke the document, at least for 30 days, you can still revoke it. Even if you're incompetent, you can still revoke it. But with this language in there, you get a 30 day cooling off period. Oddly enough, you would think that if you're incompetent, you can't revoke your legal document this particular document, you can. What the law made clear is that even if you're incompetent, you can tear up or revoke that document.

Attorney Kelli King-Penner:

I don't want this person making decisions for me.

Attorney Bob Mannor:

And so the language we include is to say okay, if you've been declared incompetent, you can still revoke it, even if the doctors say that you're not really capable of making that decision, you can still revoke it, but the revocation doesn't become effective for 30 days. That way, then, the doctors and hospital can still treat you for 30 days and hopefully the crisis has passed or we find other ways to make sure that you're safe.

Attorney Kelli King-Penner:

And it very well could be a temporary issue. I think that's sometimes that people aren't aware of. So if you've got even kind of a mild memory issue, maybe we've accidentally taken too much of our medication because we thought we took it and we didn't. Medication and medication combinations can have effects on our ability to logically reason urinary tract infections.

Attorney Kelli King-Penner:

I don't know, I think this is becoming more common, but I don't think that everybody is aware that when you have, like, any kind of infection in your body that can actually affect your ability to understand what's going on and make decisions, to the point where it's sometimes referred to as a sudden onset of dementia, usually is some kind of temporary or pseudo dementia or delirium or something that can be treated.

Attorney Kelli King-Penner:

It might be a temporary issue, but it needs active treatment for that. So it might be on kind of a crisis scenario. But just because it is a temporary thing doesn't mean it's a longstanding thing.

Attorney Bob Mannor:

One of the things to remember in this regard is dementia is a classification of diseases. It's not just Alzheimer's. We tend to associate Alzheimer's with dementia, but there's a forms of dementia where it's really sometimes difficult to see the person has dementia, so there's something called frontal temporal dementia. That actor, bruce Willis, has been diagnosed with this frontal temporal dementia. It basically shuts down your executive decision making. The ability to rationalize and make good decisions shuts down that part of your brain so that person can make very bad decisions and very be have no impulse control, for example. Another type that sometimes is somewhat hidden and hard to diagnose is Lewy body dementia. They tell us that the actor Robin Williams had Lewy body dementia, and so Lewy body is you know it's often you see hallucinations and things like that, and so those are the types of things that if it was there, we need this legal document to say, hey, if I've been declared incompetent, I can't revoke it because I'm in an altered state, or things like that, and so that's real important to have, that. We're gonna close. I'll give you an example of where this would have been nice to have that language in there.

Attorney Bob Mannor:

There was a case that went all the way up to the Michigan Supreme Court. And what happened? The Supreme Court actually asked the council that I was recently chair of and you're on the board of directors, which is called the Elder Law and Disability Rights Council for the State Bar of Michigan. So Collie's currently on the board of directors I'm a former chair of it and the Supreme Court asked for our opinion on this case. So let me tell you the details of the case.

Attorney Bob Mannor:

Woman was found in her house by neighbors and she was collapsed on the floor, so they called the ambulance. They got her to the hospital. After she got done at the hospital, they sent her to a place for physical therapy and all that so she'd get stronger again. She had severe dementia. Fortunately she had gone to a lawyer and got that document that appointed in this case it was her granddaughter to be able to make medical decision if she's been declared incompetent and she was in fact declared incompetent. Well, unfortunately what I would consider maybe some rebel rosers or out of town relatives came in and they said grandma, you should never be a nursing home, I would never want my grandma a nursing home. And so she was there. It was probably gonna be very temporary, just to get stronger, to figure out what's the best next step.

Attorney Bob Mannor:

Because it really wasn't safe for her to go home by herself because she had dementia and she had physical frailty, and so when next time she saw one of the nurses or somebody, she said I wanna go home. And they said well, you're not healthy enough to go home yet. And she said I don't care, I wanna go home. And they said well, you know, you sign this legal document appointing your daughter to make decisions for you in this situation where two doctors have determined that you're not capable of making this decision yourself. And she said I don't believe. You show me where it's. So they got out a copy of it, they showed it to her and she promptly ripped it up.

Attorney Bob Mannor:

What do we do now? Well, under the law, because it didn't have that mental health provision in there, it was no longer effective. It became that was clear when, with the Supreme Court decision, it was clear that because it didn't have that language of it, doesn't the mental health language that says that it does the revocation doesn't take effect for 30 days. It was revoked immediately and it caused all kinds of problems for the family and the facility and there was a lawsuit that went on the way to Michigan Supreme Court on it. So it's, these are just nuances.

Attorney Bob Mannor:

A lot of people think legal documents are easy you just get a form, you fill it out. That's not our practice. No, I'm not. There are people that just do forms and things like that. We believe in actually doing it in a way that we're thinking about all these potential nuances or problems that could come up. So that's why, when we say, go see a qualified experienced attorney on this and don't just fill out a form, there's all these things that aren't obvious just by writing your name on a form and putting your signature on it.

Attorney Kelli King-Penner:

And there's a lot more subtlety. I think that goes into this. There are a lot of forms with estate planning that you can get online.

Attorney Kelli King-Penner:

I'm not going to negate that. If you search hard enough, you can find just about anything on the internet. But when it comes to who's gonna take care of you when you're not able to take care of yourself, I would say that that requires a little bit more guidance and advice and care that I would put into that, because you might know what you want but you may not know how to necessarily achieve it and the form, I think, is a very dangerous method to go down when you don't necessarily understand how that could potentially impact you later and I think a lot of people that do that might choose a different path if they had gotten good legal advice.

Attorney Bob Mannor:

I have a question I forgot to ask you, and this is probably one of the most important questions how do you sign a healthcare power of attorney?

Attorney Kelli King-Penner:

Yeah. So I want to be very clear when it comes to executing the healthcare power of attorney in Michigan, it specifically has to be witnessed by two independent witnesses, and when I say two independent witnesses, I don't just mean two separate witnesses. These witnesses cannot be related to you, so this cannot be your daughter, your son, your sibling, your granddaughter I wouldn't even do an in-law, so no, son-in-law, none of that. It has to be somebody unrelated to you with no interest in anything. It also cannot be an employee of a facility that you are currently residing, so it can't be a hospital employee. It can't be a nursing home employee. It shouldn't be a home care person. It shouldn't be anybody that is employed providing any kind of healthcare with you. It's got to be somewhat 18 years and older, so don't pull your grandson away from Sesame Street and have him sign off on it.

Attorney Kelli King-Penner:

It's not going to help you. It's got to be somebody who's legally 18 years or older. A notary is not sufficient under Michigan law. This is what differs from the financial power of attorney. A financial power of attorney can be notarized and be perfectly valid. A healthcare power of attorney requires two witnesses. There is no notary procedure for that.

Attorney Bob Mannor:

And so, just to recap, it should not be witnessed by a healthcare provider, because they may be your healthcare provider in the future. So it really should be people unrelated and not a care provider, and it has to be signed in person and witnessed in person. You have to be in the same room or at least through a window In your presence.

Attorney Kelli King-Penner:

Yes, so we did a lot of the window signings during COVID, but this cannot be well, grandma had me on FaceTime and I can't do it that way. Don't do it that way. There is no procedure for that in Michigan. That's a very challenging thing and because it's so easy, you really need to follow that up, and that's where having good legal counsel will make sure your documents are executed properly and that you'll get the proper procedure for all of that in place.

Attorney Bob Mannor:

We had a temporary process in Michigan during COVID and for some time after the initial COVID rules that we were able to sign these documents remotely. That law expired and it is not currently law in Michigan. You have to be, you have to see the person sign it In person. It can't be over a video or over or something else, so it has to be witnessed in person. I mean it could be through a window or things like that. But and that is a law, another law that we're trying to get changed we would like a remote witnessing, because COVID is a perfect example of that. Sometimes we couldn't get access to people during COVID and so we're trying to get the law changed through this organization we belong to and kind of on the board of directors, to make it so that people will have more access to lawyers and legal documents so that we could do remote witnessing and remote notary. There's sometimes we can do a remote notary, but we can't do remote witnessing.

Attorney Kelli King-Penner:

Yeah, there is no remote witnessing law in the state of Michigan right now. There are some very limited applications for remote notarization and that still has to be fought. There are specific requirements for that in the state of Michigan, so I would approach that with caution as well, if that's your plan for getting something notarized. But a healthcare power of attorney cannot be notarized and be a valid one.

Attorney Bob Mannor:

All right, last question. I know I've said this three times now, but last question is should you wait till you're sick before you sign this document?

Attorney Kelli King-Penner:

No, this is one of those documents where I talk about 18 years are older. That's as soon as you are able. This is something not to get on a soapbox moment, but I think this is really important for parents out there.

Attorney Kelli King-Penner:

When your children are under the age of 18, you stand in their shoes. You are their guardian. There's actually law that has place, that you get to make medical decisions for them. Once they turn 18, you don't get to stand in their place for them anymore. They're their own independent person, and anybody that's experienced this firsthand you know how devastating this can be, because the minute that you're 18 year old I was 18 years old when I was a senior in high school, so this could have been very problematic if I had nothing in place and I'm in a car accident and my parents need to make medical decisions for me or they need to be able to act on my behalf and there's nothing in place that can be very devastating for someone.

Attorney Kelli King-Penner:

So 18 years and older, you should have that. You should revisit this often. This should be something that you look at and that you evaluate the people that you have in place. These should be the person that you have tough conversations with. This should be a living, breathing document. I keep comparing estate plans more often lately for people. As a plant, this is something we have to nurture and it should be growing with us, and we might have to make course corrections. If something fertilizer's not working or whatever, we have to adjust for this. Your estate plan is not a set and forget thing. This is something you should constantly revisit, and especially when it comes to your healthcare decision making.

Attorney Bob Mannor:

Well, thank you, Kelli. This was great information If you enjoyed this podcast. We have a lot more that we've been doing. All kinds of topics. We have some national thought leaders on different topics. We sometimes are talking about local issues, but a lot of this really applies to just about anybody, even though we were talking about some state specific laws. If you're in the United States, this is often there's gonna be similar features of the laws in other states. So thank you for listening and if you liked it, please don't forget to like it and comment. And also, if you can, what are they called? Register for Subscribe? Subscribe, thank you, and you can subscribe at any place that they offer podcasts, or you can go to YouTube or you can go to our website at mannorlawgroup. com. Thanks again, thanks for listening.

Medical Power of Attorney and HIPAA
Difference Between Healthcare Power of Attorney and Durable Power of Attorney
Advantages of Having a Patient Advocate
Flexibility in Healthcare Decisions
Incorporating HIPAA Law in Healthcare Power of Attorney
Activation of Healthcare Power of Attorney
Healthcare Decision Making and Resuscitation
Controversial Scenarios in Healthcare Decision-Making
Importance of Mental Health Decisions in Healthcare Power of Attorney
Mental Health Provisions in Legal Documents
Careful Execution in Healthcare Power of Attorney
Case Study: Importance of Mental Health Provisions

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