Advance directive registries: A policy opportunity

September 30, 2011

A person in a suit writes an advance directive.The most critical health care decisions facing patients and families are often made under the most difficult of circumstances—in emergencies, or when patients are not able to speak for themselves. When patients are unable to communicate their own wishes for treatment, and have not made them known to family or physicians in advance with an advance directive, it is up to family and physicians to make and carry out medical decisions on their behalf. These decisions may or may not comport with the patient’s own wishes.

Advance directives offer a solution for these situations by providing family members with a better understanding of the patient’s preferences for treatment—and/or appointing someone familiar with their preferences to make decisions on their behalf. But in order for advance directives to be effective, health care providers need to know they exist and have ready access to them. One way to accomplish this is through statewide electronic registries of advance directives.

This paper discusses advance directives available under Michigan law, models for state and regional advance directive registries, and approaches for encouraging their use.

Current Michigan Law

In Michigan there are four major instruments patients can use to express their wishes for medical decision-making in the event of an emergency or incapacitation: durable power of attorney, living will, do-not-resuscitate declaration, and request for organ donation. Because organ donation is the only advance directive recorded in a Michigan statewide registry, the task of informing physicians and hospitals of other directives falls to patients and their advocates.

  1. Durable Power of Attorney for Health Care: In a durable power of attorney for health care, the patient appoints a proxy, or “patient advocate,” who is empowered to make health care decisions in the event the patient is incapacitated. When signing the power of attorney, patients are allowed, but not required, to list their preferences to instruct the patient advocate. When signed, the power of attorney is legally binding but can be revoked by the patient at any time.
  2. Living Will: A living will is a statement describing the medical decisions the patient wants made on his or her behalf. It differs from the durable power of attorney because it does not require a proxy. Living wills are not binding under Michigan law and may not ensure the patient’s preferences are met.
  3. Do-Not-Resuscitate Declaration (DNR): A DNR is a request that a patient not be resuscitated if breathing or heartbeat ceases. It is legally binding and can be made by the patient or by a patient advocate holding the patient’s durable power of attorney.
  4. Organ Donation: Patients can express their desires regarding organ donation in statements of durable power of attorney, living wills, or by adding their names to the Michigan Organ Donor Registry. If a patient enrolls in the Michigan Organ Donor Registry, no family or patient advocate consent is required unless specifically requested by the patient. The registry is maintained by Gift of Life Michigan in conjunction with the Michigan Secretary of State.

For more detailed information on advance directive options available in Michigan, visit the State Bar of Michigan website.