Advance Care Planning During COVID and the Future of Will Formalities in Michigan

Alex Paris, Articles Editor (‘21)

I. Background

As COVID-19 tore through America this past year, many families reconsidered their estate plans. Faced with haunting news images of patients on ventilators, folks in the “vulnerable” category considered whether they wanted such aggressive medical interventions.[1] Indeed, families began to share their end-of-life goals and wishes with each other. Words like “health care proxies” and “surrogate decision makers” left the sterile confines of hospital wards and became part of a broader national conversation about end-of-life care.[2] At the same time, governors and state legislators across the country sought to make advance care planning easier for those who either did not have a plan in place or wanted to update their wishes. Although estate planning is typically a stodgy, rigid field of law, the pandemic has given way to both urgency and new opportunities for real innovation and digitization—particularly with advance care planning documents.

Broadly, there are two types of advance directives: (1) a living will, and (2) a durable power of attorney for healthcare (DPOAH).  Both forms of advance directives must follow strict legal formalities, which vary from state to state.

Living wills are legal documents that specify a patient’s healthcare desires, should the patient become incompetent and unable to express his or her own wishes.[3] Living wills are generally narrower in scope than DPOAHs and clarify the baseline question of whether a patient would want life-sustaining treatment in the event of terminal illness or a persistent vegetative state. Although forty-seven states have passed laws recognizing the legitimacy of living wills, Michigan’s acceptance of this document comes from common law precedent, rather than any statutory provision.[4] Notwithstanding living will codification, the right to choose and refuse treatment is a constitutional freedom recognized by the Supreme Court in Cruzan.[5]

Durable powers of attorney for healthcare, on the other hand, designate a surrogate decision maker who may act on the patient’s behalf should the patient become incompetent. Whereas living wills typically apply to end-of-life treatment decisions, DPOAHs empower a surrogate to make healthcare decisions that do not necessarily implicate end-of-life treatment courses. The distinction between living wills and DPOAHs breaks down, however, when surrogate decision makers choose to withdraw or even refuse life-sustaining treatment. State law governs when and how such crucial decisions are carried out by individuals other than the patient. In Michigan, such surrogate decision makers are called patient advocates.[6] To designate a patient advocate, one must be at least eighteen years of age and competent at the time of the patient advocate designation.[7] The question of assessing competency is a legal, rather than medical, inquiry and turns on whether the patient appreciates the significance and consequences of appointing a surrogate.[8] Additionally, the patient advocate designation form must specify that surrogate actions only occur when the patient cannot independently make decisions.[9]

In addition to state law governing end-of-life planning, the Patient Self-Determination Act of 1990 mandates that any healthcare facility enrolled in Medicare or Medicaid must, at the time of admission, inform the patient about his or her rights to create a legally recognized advance directive.[10] The Patient Self-Determination Act covers not only hospitals and home health agencies, but also health maintenance organizations (HMOs). Specifically, HMOs are required to inform their subscribers about advance directives upon enrollment.

II. Michigan’s Legal Formalities for Patient Advocate Designation Forms

In order for a patient advocate form to be valid in Michigan, the document must be dated, signed by the patient, and witnessed by two individuals without familial or financial ties to the patient. Additionally, the witnesses must be in the presence of the patient.[11] Although presence has never been defined, most practitioners in this field typically recommend witnesses to sign in the same physical room as the patient. The pandemic, however, gave way to a flurry of legislative and executive orders around the country that were meant to decrease the likelihood of infection. Remote witnessing—and even remote notarization in lieu of witnessing—began to take hold across estate practices.[12]

In Michigan, for example, Governor Gretchen Whitmer issued an Executive Order on April 8, 2020 permitting electronic signatures and remote notarization for certain real estate transactions and estate planning documents.[13] By their very nature, executive orders are only temporary, so Governor Whitmer revised and amended these executive orders several times from May through September 2020. In October, the Michigan Supreme Court ruled that the state’s executive branch did not have the authority to unilaterally extend the state of emergency past April 30—all of Governor Whitmer’s prior executive orders were thus invalidated.[14] In response, the Michigan Legislature passed HB 6294, allowing for remote notarization of estate planning documents, including trusts.[15] The provisions of this new law permit both remote witnessing and remote notarization of estate planning documents. Additionally, advance directives and health care power of attorney forms are contemplated by the bill.

In order to create compliant estate planning documents, several key provisions must be adhered to: (1) the witness, notary, and signer must be able to communicate through real-time audiovisual technology; (2) the interaction between all relevant parties must be recorded and preserved by the signer for at least three years; and (3) all parties must sign the documents in such a way that any change or modification to the document will be readily apparent. 

Although the new rules are a departure from strict will formalities, there are many more steps the Michigan legislature can take to allow for greater access and utilization of advance care planning. For example, Arizona, Florida, Indiana, and Nevada have already passed legislation explicitly permitting digital wills.[16]

To maximize the benefits of digital advance directives while simultaneously limiting the potential for fraud and abuse, targeted legislation must clearly define which software programs or platforms are capable of capturing digital signatures. As states embrace registries for living wills, partnering with secure platforms will give patients and their loved ones peace of mind that end-of-life wishes will be honored.

Overhauling an estate planning system rooted in ancient English common law may seem like an overwhelming task, but if the changes are limited only to advance directives and end-of-life planning, the goal is quite attainable. For example, the Uniform Law Commission (ULC) drafted a template bill, known as the Uniform Electronic Wills Act, in 2019.[17] States are free to adopt ULC language into their own statutes.

The stated goal of the ULC drafting body—composed of academics and practitioners—was to create a less burdensome execution scheme that would nevertheless result in valid estate planning documents. Embracing the reforms proposed by the ULC and applying them to advance care planning would propel states into the new digital age. As 2020 comes to a close, additional legislation—informed by the model Uniform Electronic Wills Act— must be passed if electronic signatures and remote witnessing are to become permanent features of advance care planning in Michigan.

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[1] See Elizabeth P. Clayborne, ER Doctor: Your End-of-Life Care Plan Can Help Save Time and Lives Amid Coronavirus, USA Today (Apr. 9, 2020, 9:30 AM), https://www.usatoday.com/story/opinion/2020/04/09/coronavirus-crisis-plan-end-life-care-help-yourself-others-column/2973529001/.

[2] See Jessica Zitter, COVID or No COVID, It’s Important to Plan, N.Y. Times (Apr. 16, 2020), https://www.nytimes.com/2020/04/16/well/live/coronavirus-planning-documents-advance-directives.html.

[3] See Preston Holmes, Commission on Law & Aging Research: A Tour of State Advance Directive Registries, 37 Bifocal 122, 122 (2016).

[4] See generally In re Estate of Horton, 925 N.W.2d 207 (Mich. Ct. App. 2018).

[5] See generally Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261 (1990).

[6] See Mich. Comp. Laws § 700.5506(1) (2020).

[7] See id. § 700.5506(2).

[8] See Persinger v. Holst, 639 N.W.2d 594, 598 (Mich. Ct. App. 2001).

[9] See Mich. Comp. Laws § 700.5506(1).

[10] See 42 U.S.C. § 1395cc.

[11] See Mich. Comp. Laws § 700.5506(3).

[12] See Susan B. Garland, What to Know About Making a Will in the Age of Coronavirus, N.Y. Times (Mar. 30, 2020), https://www.nytimes.com/article/what-is-a-will-and-how-to-make-one.html.

[13] See Mich. Exec. Order No. 2020-74 (June 30, 2020). 

[14] See Jennifer Henderson & Steve Almasy, Michigan Supreme Court Rules Against Governor Again, Ending COVID-19 Executive Orders, CNN (Oct. 12, 2020, 8:57 PM), https://www.cnn.com/2020/10/12/politics/michigan-supreme-court-whitmer-covid-emergency/index.html.

[15] See Mich. Comp. Laws § 700.1202. Additionally, the Legislature passed HB 6297, which permits online notarization, as well as HB 6296, which requires registers of deeds and financial institutions to accept notarized electronic documents.

[16] See Ariz. Rev. Stat. Ann. § 14-2518 (2019); Fla. Stat. Ann. § 732.522 (West 2019); Ind. Code § 29-1-21-4 (2019); Nev. Rev. Stat. § 133.085 (2017).

[17] See Unif. Prob. Code § 2-503 (amended 2020).