SB-0715, As Passed Senate, December 5, 2007
September 4, 2007, Introduced by Senators JACOBS, THOMAS, GLEASON, CLARKE, OLSHOVE, PRUSI, SCHAUER, CHERRY, KAHN, BIRKHOLZ, PAPPAGEORGE, RICHARDVILLE, BARCIA, CLARK-COLEMAN, BASHAM, HUNTER, SWITALSKI and SCOTT and referred to the Committee on Health Policy.
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending sections 3206, 5506, 5507, 5508, and 5510 (MCL
700.3206, 700.5506, 700.5507, 700.5508, and 700.5510), section 3206
as added by 2006 PA 299 and sections 5506, 5507, 5508, and 5510 as
amended by 2004 PA 532.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 3206. (1) Subject to 1953 PA 181, MCL 52.201 to 52.216,
and to part 28 and article 10 of the public health code, 1978 PA
368, MCL 333.2801 to 333.2899 and 333.10101 to 333.11101, a person
with priority under subsections (2) to (4) or acting under
subsection (5), (6), (7), or (8) is presumed to have the right and
power to make decisions about funeral arrangements and the
handling, disposition, or disinterment of a decedent's body,
including, but not limited to, decisions about cremation, and the
right to possess cremated remains of the decedent. The handling,
disposition, or disinterment of a body shall be under the
supervision of a person licensed to practice mortuary science in
this state.
(2) The surviving spouse or, if there is no surviving spouse,
the individual or individuals 18 years of age or older, in the
highest order of priority under section 2103, and related to the
decedent in the closest degree of consanguinity, have the rights
and powers under subsection (1).
(3) If the surviving spouse or the individual or individuals
with the highest priority as determined under subsection (2) do not
exercise their rights or powers under subsection (1) or cannot be
located after a good-faith effort to contact them, the rights and
powers under subsection (1) may be exercised by the individual or
individuals in the same order of priority under section 2103 who
are related to the decedent in the next closest degree of
consanguinity. If the individual or each of the individuals in an
order of priority as determined under this subsection similarly
does not exercise his or her rights or powers or cannot be located,
the rights or powers under subsection (1) pass to the next order of
priority, with the order of priority being determined by first
taking the individuals in the highest order of priority under
section 2103 and then taking the individuals related to the
decedent in the closest or, as applicable, next closest degree of
consanguinity in that order of priority.
(4) If 2 or more individuals share the rights and powers
described in subsection (1) as determined under subsection (2) or
(3), the rights and powers shall be exercised as decided by a
majority of the individuals. If a majority cannot agree, any of the
individuals may file a petition under section 3207.
(5) If no individual described in subsections (2) and (3)
exists, exercises the rights or powers under subsection (1), or can
be located after a sufficient attempt as described in subsection
(9), and if subsection (6) does not apply, then the personal
representative or nominated personal representative may exercise
the rights and powers under subsection (1), either before or after
his or her appointment.
(6) If no individual described in subsections (2) and (3)
exists, exercises the rights or powers under subsection (1), or can
be located after a sufficient attempt as described in subsection
(9), and if the decedent was under a guardianship at the time of
death, the guardian may exercise the rights and powers under
subsection (1) and may make a claim for the reimbursement of burial
expenses as provided in section 5216 or 5315, as applicable.
(7) If no individual described in subsections (2) and (3)
exists, exercises the rights or powers under subsection (1), or can
be located after a sufficient attempt as described in subsection
(9), if the decedent died intestate, and if subsection (6) does not
apply, a special personal representative appointed under section
3614(c) may exercise the rights and powers under subsection (1).
(8) If there is no person under subsections (2) to (7) to
exercise the rights and powers under subsection (1), 1 of the
following, as applicable, shall exercise the rights and powers
under subsection (1):
(a) Unless subdivision (b) applies, the county public
administrator, if willing, or the medical examiner for the county
where the decedent was domiciled at the time of his or her death.
(b) If the decedent was incarcerated in a state correctional
facility at the time of his or her death, the director of the
department of corrections or the designee of the director.
(9) An attempt to locate a person described in subsection (2)
or (3) is sufficient if a reasonable attempt is made in good faith
by a family member, personal representative, or nominated personal
representative of the decedent to contact the person at his or her
last known address, telephone number, or electronic mail address.
(10)
This section does not void or otherwise affect a an
anatomical gift made under part 101 of the public health code, 1978
PA
368, MCL 333.10101 to 333.10109 333.10123.
(11) As used in this section, "nominated personal
representative" means a person nominated to act as personal
representative in a will that the nominated person reasonably
believes to be the valid will of the decedent.
Sec. 5506. (1) An individual 18 years of age or older who is
of sound mind at the time a patient advocate designation is made
may designate in writing another individual who is 18 years of age
or older to exercise powers concerning care, custody, and medical
or mental health treatment decisions for the individual making the
patient advocate designation. An individual making a patient
Senate Bill No. 715 as amended December 5, 2007
advocate designation under this subsection may include in the
patient advocate designation the authority for the designated
individual to make an anatomical gift of all or part of the
individual's
body in accordance with this act and section 10102
part
101 of the public health code, 1978 PA
368, MCL 333.10102
333.10101 to 333.10123. <<The authority regarding an anatomical gift
under this subsection may include the authority to resolve a conflict between the terms of the advance health care directive and the administration of means necessary to ensure the medical suitability of the anatomical gift.>>
(2) For purposes of this section and sections 5507 to 5515, an
individual who is named in a patient advocate designation to
exercise powers concerning care, custody, and medical or mental
health treatment decisions is known as a patient advocate and an
individual who makes a patient advocate designation is known as a
patient.
(3) A patient advocate designation under this section must be
in writing, signed, witnessed as provided in subsection (4), dated,
executed voluntarily, and, before its implementation, made part of
the patient's medical record with, as applicable, the patient's
attending physician, the mental health professional providing
treatment to the patient, the facility where the patient is
located, or the community mental health services program or
hospital that is providing mental health services to the patient.
The patient advocate designation must include a statement that the
authority conferred under this section is exercisable only when the
patient is unable to participate in medical or mental health
treatment decisions, as applicable, and, in the case of the
authority to make an anatomical gift as described in subsection
(1), a statement that the authority remains exercisable after the
patient's death.
Senate Bill No. 715 as amended December 5, 2007
(4) A patient advocate designation under this section must be
executed in the presence of and signed by 2 witnesses. A witness
under this section shall not be the patient's spouse, parent,
child, grandchild, sibling, presumptive heir, known devisee at the
time of the witnessing, physician, or patient advocate or an
employee of a life or health insurance provider for the patient, of
a health facility that is treating the patient, or of a home for
the aged as defined in section 20106 of the public health code,
1978 PA 368, MCL 333.20106, where the patient resides, or of a
community mental health services program or hospital that is
providing mental health services to the patient. A witness shall
not sign the patient advocate designation unless the patient
appears to be of sound mind and under no duress, fraud, or undue
influence.
(5) As used in this section, "community mental health services
program or hospital" means a community mental health services
program as that term is defined in section 100a of the mental
health code, 1974 PA 258, MCL 330.1100a, or a hospital as that term
is defined in section 100b of the mental health code, 1974 PA 258,
MCL 330.1100b.
Sec. 5507. (1) A patient advocate designation may include a
statement of the patient's desires on care, custody, and medical
treatment or mental health treatment, or both. A patient advocate
designation may also include a statement of the patient's desires
on the making of an anatomical gift of all or part of the patient's
body under part 101 of the public health code, 1978 PA 368, MCL
333.10101
to 333.10109 333.10123. <<The statement regarding an
anatomical
gift under this subsection may include a statement of the patient's desires regarding the resolution of a conflict between the terms of the advance health care directive and the administration of means necessary to ensure the medical suitability of the anatomical gift.>> The patient may authorize the
Senate Bill No. 715 as amended December 5, 2007
patient advocate to exercise 1 or more powers concerning the
patient's care, custody, medical treatment, mental health
treatment,
<<or>> the making of an anatomical gift<<, or the resolution
of a conflict between the terms of the advance health care directive and
the administration of means necessary to ensure the medical suitability
of the anatomical gift>> that the patient
could have exercised on his or her own behalf.
(2) A patient may designate in the patient advocate
designation a successor individual as a patient advocate who may
exercise
<<the powers described in subsection (1) and medical or
mental
health treatment decisions or concerning the making of an
anatomical gift>> for the patient if the first individual named as
patient advocate does not accept, is incapacitated, resigns, or is
removed.
(3) Before a patient advocate designation is implemented, a
copy of the patient advocate designation must be given to the
proposed patient advocate and must be given to a successor patient
advocate before the successor acts as patient advocate. Before
acting as a patient advocate, the proposed patient advocate must
sign an acceptance of the patient advocate designation.
(4) The acceptance of a designation as a patient advocate must
include substantially all of the following statements:
1. This patient advocate designation is not effective unless
the patient is unable to participate in decisions regarding the
patient's medical or mental health, as applicable. If this patient
advocate designation includes the authority to make an anatomical
gift as described in section 5506, the authority remains
exercisable after the patient's death.
2. A patient advocate shall not exercise powers concerning the
patient's care, custody, and medical or mental health treatment
that the patient, if the patient were able to participate in the
decision, could not have exercised on his or her own behalf.
3. This patient advocate designation cannot be used to make a
medical treatment decision to withhold or withdraw treatment from a
patient who is pregnant that would result in the pregnant patient's
death.
4. A patient advocate may make a decision to withhold or
withdraw treatment that would allow a patient to die only if the
patient has expressed in a clear and convincing manner that the
patient advocate is authorized to make such a decision, and that
the patient acknowledges that such a decision could or would allow
the patient's death.
5. A patient advocate shall not receive compensation for the
performance of his or her authority, rights, and responsibilities,
but a patient advocate may be reimbursed for actual and necessary
expenses incurred in the performance of his or her authority,
rights, and responsibilities.
6. A patient advocate shall act in accordance with the
standards of care applicable to fiduciaries when acting for the
patient and shall act consistent with the patient's best interests.
The known desires of the patient expressed or evidenced while the
patient is able to participate in medical or mental health
treatment decisions are presumed to be in the patient's best
interests.
7. A patient may revoke his or her patient advocate
designation at any time and in any manner sufficient to communicate
an intent to revoke.
8. A patient may waive his or her right to revoke the patient
advocate designation as to the power to make mental health
treatment decisions, and if such a waiver is made, his or her
ability to revoke as to certain treatment will be delayed for 30
days after the patient communicates his or her intent to revoke.
9. A patient advocate may revoke his or her acceptance of the
patient advocate designation at any time and in any manner
sufficient to communicate an intent to revoke.
10. A patient admitted to a health facility or agency has the
rights enumerated in section 20201 of the public health code, 1978
PA 368, MCL 333.20201.
Sec. 5508. (1) Except as provided under subsection (3), the
authority under a patient advocate designation is exercisable by a
patient advocate only when the patient is unable to participate in
medical treatment or, as applicable, mental health treatment
decisions. The patient's attending physician and another physician
or licensed psychologist shall determine upon examination of the
patient whether the patient is unable to participate in medical
treatment decisions, shall put the determination in writing, shall
make the determination part of the patient's medical record, and
shall review the determination not less than annually. If the
patient's religious beliefs prohibit an examination and this is
stated in the designation, the patient must indicate in the
designation how the determination under this subsection shall be
made. The determination of the patient's ability to make mental
health treatment decisions shall be made under section 5515.
(2) If a dispute arises as to whether the patient is unable to
participate in medical or mental health treatment decisions, a
petition may be filed with the court in the county in which the
patient resides or is located requesting the court's determination
as to whether the patient is unable to participate in decisions
regarding medical treatment or mental health treatment, as
applicable. If a petition is filed under this subsection, the court
shall appoint a guardian ad litem to represent the patient for the
purposes of this subsection. The court shall conduct a hearing on a
petition under this subsection as soon as possible and not later
than 7 days after the court receives the petition. As soon as
possible and not later than 7 days after the hearing, the court
shall determine whether or not the patient is able to participate
in decisions regarding medical treatment or mental health
treatment, as applicable. If the court determines that the patient
is unable to participate in the decisions, the patient advocate's
authority, rights, and responsibilities are effective. If the court
determines that the patient is able to participate in the
decisions, the patient advocate's authority, rights, and
responsibilities are not effective.
(3) In the case of a patient advocate designation that
authorizes a patient advocate to make an anatomical gift of all or
part of the patient's body, the patient advocate shall act on the
patient's
behalf in accordance with section 10102 part 101 of the
public
health code, 1978 PA 368, MCL 333.10102 333.10101 to
333.10123, and may do so only after the patient has been declared
unable to participate in medical treatment decisions as provided in
subsection (1) or declared dead by a licensed physician. The
patient advocate's authority to make an anatomical gift remains
exercisable after the patient's death.
Sec. 5510. (1) A patient advocate designation is revoked by 1
or more of the following:
(a) The patient's death, except that part of the patient
advocate designation, if any, that authorizes the patient advocate
to make an anatomical gift of all or part of the deceased patient's
body
in accordance with this act and section 10102 part 101
of the
public
health code, 1978 PA 368, MCL 333.10102 333.10101 to
333.10123.
(b) An order of removal by the probate court under section
5511(5).
(c) The patient advocate's resignation or removal by the
court, unless a successor patient advocate has been designated.
(d) The patient's revocation of the patient advocate
designation. Subject to section 5515, even if the patient is unable
to participate in medical treatment decisions, a patient may revoke
a patient advocate designation at any time and in any manner by
which he or she is able to communicate an intent to revoke the
patient advocate designation. If there is a dispute as to the
intent of the patient to revoke the patient advocate designation,
the court may make a determination on the patient's intent to
revoke the patient advocate designation. If the revocation is not
in writing, an individual who witnesses a revocation of a patient
advocate designation shall describe in writing the circumstances of
the revocation, must sign the writing, and shall notify, if
possible, the patient advocate of the revocation. If the patient's
physician, mental health professional, or health facility has
notice of the patient's revocation of a patient advocate
designation, the physician, mental health professional, or health
facility shall note the revocation in the patient's records and
bedside chart and shall notify the patient advocate.
(e) A subsequent patient advocate designation that revokes the
prior patient advocate designation either expressly or by
inconsistency.
(f) The occurrence of a provision for revocation contained in
the patient advocate designation.
(g) If a patient advocate designation is executed during a
patient's marriage naming the patient's spouse as the patient
advocate, the patient advocate designation is suspended during the
pendency of an action for separate maintenance, annulment, or
divorce and is revoked upon the entry of a judgment of separate
maintenance, annulment, or divorce, unless the patient has named a
successor individual to serve as a patient advocate. If a successor
patient advocate is named, that individual acts as the patient
advocate.
(2) The revocation of a patient advocate designation under
subsection (1) does not revoke or terminate the agency as to the
patient advocate or other person who acts in good faith under the
patient advocate designation and without actual knowledge of the
revocation. Unless the action is otherwise invalid or
unenforceable, an action taken without knowledge of the revocation
binds the patient and his or her heirs, devisees, and personal
representatives. A sworn statement executed by the patient advocate
stating that, at the time of doing an act in accordance with the
patient advocate designation, he or she did not have actual
knowledge of the revocation of the patient advocate designation is,
in the absence of fraud, conclusive proof that the patient advocate
did not have actual knowledge of the revocation at the time of the
act.
Enacting section 1. This amendatory act does not take effect
unless Senate Bill No. 710
of the 94th Legislature is enacted into law.