A full guardian of a legally incapacitated person in Michigan is responsible for the ward’s care, custody and control. This includes “[t]he power to give the consent or approval that is necessary to enable the ward to receive medical, mental health, or other professional care, counsel, treatment, or service.” MCL 700.5314. In giving proper consideration to the need to avoid unnecessary and prolonged suffering, a guardian in Michigan also has the authority to execute, reaffirm and revoke a do-not-resuscitate (DNR) order on behalf of a ward. A DNR order is a document that directs, if an individual suffers cessation of both spontaneous respiration and circulation in a setting outside of a hospital, that resuscitation efforts will not be made and the natural result will likely be death. MCL 333.1052(g). These resuscitation efforts include mouth-to-mouth resuscitation, CPR and defibrillation. Essentially, a guardian can execute a DNR order to allow the ward to pass away when bodily functions fail to avoid the risk that the ward’s life will be artificially prolonged by a machine.
The consideration of the ward’s DNR preference starts even before the guardian is appointed. Upon filing of the petition for guardianship, the court will appoint a guardian ad litem who must personally visit the allegedly incapacitated individual to explain the nature of the proceedings. One of the tasks that the guardian ad litem must do is “[i]nform the individual that if a guardian is appointed, the guardian may have the power to execute a do-not-resuscitate order on behalf of the individual and, if meaningful communication is possible, discern if the individual objects to having a do-not-resuscitate order executed on his or her behalf.” MCL 700.5305(1)(d). If the guardian ad litem believes there is some capacity to make informed decisions, then he or she should consider the appropriateness of alternatives to guardianship such as the ward executing his or her own DNR order. MCL 700.5305(1)(h)(i)(C). The court may appoint a partial guardian with limited powers that may or may not include the power to execute a DNR. If the proposed ward has a patient advocate, then “the court shall not grant a guardian any of the same powers that are held by the patient advocate.” MCL 700.5306(2). If the appointment is not a full guardianship, then the guardian needs to verify that this authority is ordered by the court.
What should guide the decision for a guardian to execute a DNR for a ward? According to the Michigan Court of Appeals, “in making decisions for… incompetent patients, surrogate decision makers should make the best approximation of the patient’s preference on the basis of available evidence; if such preference was never expressed or is otherwise unknown, the surrogate should make a decision based on the best interests of the patient.” In re Rosebush, 195 Mich App 675, 683; 491 NW2d 633 (1992). Likewise, if a ward made choices regarding resuscitation and they were “communicated by the patient before losing the capacity to make further choices, . . . it is true that the patient’s interest in having those choices honored must survive incapacity.” In re Martin, 450 Mich 204, 217; 538 NW2d 399 (1995). In sum, the ward’s previous wishes must be honored if possible, and the ward’s best interests must be consider if no preference can be obtained.
A guardian must follow certain statutory provisions to execute, reaffirm and revoke a DNR order on behalf of the ward. To execute a DNR order, the guardian must do ALL of the following:
- “Not more than 14 days before executing the do-not-resuscitate order, visits the ward and, if meaningful communication is possible, consults with the ward about executing the do-not-resuscitate order.” MCL 700.5314(d)(i).
- “Consults directly with the ward’s attending physician as to the specific medical indications that warrant the do-not-resuscitate order.” MCL 700.5314(d)(ii).
The DNR order must be dated, executed voluntarily and signed by the guardian, the ward’s attending physician and two witnesses of at least 18 years of age, each of whom is not the ward’s spouse, parent, child, grandchild, sibling or presumptive heir. MCL 333.1053a(2). “A witness shall not sign an order unless the guardian appears to the witness to be of sound mind and under no duress, fraud, or undue influence.” MCL 333.1053a(3). “At any time after an order is signed and witnessed, the guardian, the attending physician or his or her delegatee, or an individual designated by the guardian may apply an identification bracelet to the ward’s wrist.” MCL 333.1053a(4). The guardian, thereafter, must keep a copy of the order, have the order accessible within the ward’s place of residence or other setting outside of a hospital, and provide a copy to the administrator of the facility where the ward is a patient. MCL 333.1053a(5).
If a guardian executes a do-not-resuscitate order, not less than annually after the do-not-resuscitate order is first executed, the duty to do ALL of the following:
- “Visit the ward and, if meaningful communication is possible, consult with the ward about reaffirming the do-not-resuscitate order.” MCL 700.5314(e)(i).
- “Consult directly with the ward’s attending physician as to specific medical indications that may warrant reaffirming the do-not-resuscitate order. MCL 700.5314(e)(ii).
Finally, “[a]… guardian may revoke an order on behalf of a declarant at any time by issuing the revocation in writing and provide actual notice of the revocation by delivering the written revocation to the declarant’s attending physician or his or her delegatee and, if the declarant is a patient or resident of a facility…, to the administrator of the facility or school or the administrator’s designee.” MCL 333.1060(1). “Upon revocation, the…. guardian, or attending physician or his or her delegatee who has actual notice of a revocation of an order… shall [w]rite “void” on all pages of the order… [and], [i]f applicable, remove the declarant’s do-not-resuscitate identification bracelet.” Id.
“The power of a guardian to execute a do-not-resuscitate order… does not affect or limit the power of a guardian to consent to a physician’s order to withhold resuscitative measures in a hospital.” MCL 700.5314(c). However, a guardian shall not execute a physician orders for scope of treatment form unless the guardian does all of the following:
- “Not more than 14 days before executing the physician orders for scope of treatment form, visits the ward and, if meaningful communication is possible, consults with the ward about executing the physician orders for scope of treatment form.” MCL 700.5314(g)(i).
- “Consults directly with the ward’s attending physician as to the specific medical indications that warrant the physician orders for scope of treatment form.” MCL 700.5314(g)(ii).
If a guardian executes a physician orders for scope of treatment form, he or she has the duty, not less than annually after the physician orders for scope of treatment is first executed, to do all of the following:
- “Visit the ward and, if meaningful communication is possible, consult with the ward about reaffirming the physician orders for scope of treatment form.” MCL 700.5314(h)(i).
- “Consult directly with the ward’s attending physician as to specific medical indications that may warrant reaffirming the physician orders for scope of treatment form.” MCL 700.5314(h)(ii).
A guardian that does not follow these standards regarding DNR orders can be civilly liable for any harm that it causes to the ward. In addition, the guardian’s decision can be challenged in court by other interested persons who believe that the guardian breached his or her fiduciary duty to the ward. The guardian, if the probate court finds he or she violated these rules and statutes, can be removed from his or her position or even held in contempt of court. A guardian unsure of his or her rights and responsibilities can always consult a skilled probate lawyer to get proper legal advice or obtain legal representation in court when necessary.
If you have further questions about guardianships or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
