Bill Text: MI HB5833 | 2023-2024 | 102nd Legislature | Introduced
Bill Title: Probate: other; designation of a patient surrogate for health care decisions; allow. Amends 1998 PA 386 (MCL 700.1101 - 700.8206) by adding pt. 6 to art. V & repeals sec. 66h of 1939 PA 280 (MCL 400.66h).
Spectrum: Moderate Partisan Bill (Democrat 17-2)
Status: (Introduced) 2024-06-26 - Bill Electronically Reproduced 06/25/2024 [HB5833 Detail]
Download: Michigan-2023-HB5833-Introduced.html
HOUSE BILL NO. 5833
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
(MCL 700.1101 to 700.8206) by adding part 6 to article V; and to repeal acts and parts of acts.
the people of the state of michigan enact:
Part 6
SURROGATE DECISIONMAKERS FOR HEALTH CARE
Sec. 5601. As used in this part:
(a) "Attending health professional" means that term as defined in section 5672 of the public health code, 1978 PA 368, MCL 333.5672.
(b) "Health care" means any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect an individual's physical or mental health.
(c) "Health care decision" means a decision made by an individual or an individual's surrogate regarding the individual's health care, including, but not limited to, any of the following:
(i) Selection and discharge of health care providers and a health facility or agency.
(ii) Approval or disapproval of diagnostic tests.
(iii) Directions to provide or withhold all forms of health care except those that would have required the patient to have expressed the patient's wishes in a clear and convincing manner under the standard of section 5509 or unless the surrogate is acting as a patient surrogate under part 56A of the public health code, 1978 PA 368, MCL 333.5651 to 333.5661.
(d) "Health care provider" means a person who is licensed or registered or otherwise authorized under article 15 of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838, to provide health care in the ordinary course of business or practice of a health professional.
(e) "Health facility or agency" means that term as defined in section 20106 of the public health code, 1978 PA 368, MCL 333.20106.
(f) "Reasonably available" means readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the patient's health care needs. An individual is considered reasonably available if available in-person, by phone, by videoconferencing, or by other means that allow for adequate communication.
(g) "Surrogate" means an individual, other than a patient advocate or guardian, authorized under this act to make a health care decision for the patient.
Sec. 5602. (1) This part does not limit the authority of a patient surrogate acting under part 56A of the public health code, 1978 PA 368, MCL 333.5651 to 333.5661.
(2) A surrogate may make a health care decision that a patient who is an adult or an emancipated minor is incapable of making for a patient if both of the following conditions are met:
(a) The patient is unable to participate in a health care decision as determined under the same standard as provided in section 5508.
(b) The patient does not have a patient advocate designation, out-of-state equivalent of a patient advocate designation, or guardian, or the patient advocate or guardian is not reasonably available.
(3) A surrogate's authority to make health care decisions is suspended when the patient regains the ability to participate in decisions under the same standard as provided in section 5509(2).
(4) An adult or an emancipated minor who is not incapacitated may designate an individual to act as a surrogate by personally informing the attending health professional by any means of communication. Designation of a surrogate under this subsection does not preclude the subsequent designation of a patient advocate under section 5506. The attending health professional must promptly record a designation under this subsection in the patient's medical record. In the absence of a designation, patient advocate designation, or out-of-state equivalent of a patient advocate designation, or if the designee is not reasonably available, any member of the following classes who is reasonably available, in the following order of priority, may act as surrogate:
(a) An agent under a validly executed out-of-state designation of patient advocate or equivalent, including, but not limited to, health care powers of attorney, advance directives, and living wills.
(b) The spouse, unless any of the following apply:
(i) There is a pending action for divorce, separate maintenance, or annulment.
(ii) The spouse has been absent from the adult for 1 year or more before making the health care decision.
(c) An adult child.
(d) A parent.
(e) An adult sibling.
(5) If none of the individuals eligible to act as surrogate under subsection (4) are reasonably available, an adult who has exhibited special care and concern for the patient, who is familiar with the patient's personal values, and who is reasonably available may act as surrogate.
(6) A person who is the subject of a personal protection order or other court order that directs that person to avoid contact with the patient, or who has a pending criminal action for vulnerable adult abuse or exploitation or domestic violence with the patient is not eligible to act as the surrogate.
(7) At any time, a patient may disqualify another individual from acting as surrogate. The disqualification may be communicated in a record signed by the individual or by verbal or nonverbal communication to the individual being disqualified, another individual, or a responsible health care provider. Disqualification under this subsection is effective even if made by an individual who has been found to lack capacity.
(8) An individual is disqualified from acting as surrogate for the patient if a court finds by a preponderance of the evidence that the potential surrogate poses a danger to the patient.
(9) A surrogate must sign an acceptance of authority that must be added to the patient's medical record and include substantially all of the following statements:
1. A surrogate 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 the patient's own behalf.
2. A surrogate does not have authority to make a medical treatment decision to withhold or withdraw treatment that would result in a patient's death.
3. A surrogate must not receive compensation for the performance of the surrogate's authority, rights, and responsibilities, but a surrogate may be reimbursed for actual and necessary expenses incurred in the performance of the surrogate's authority, rights, and responsibilities.
4. A surrogate 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.
5. A surrogate may revoke the surrogate's acceptance of the role of surrogate at any time and in any manner sufficient to communicate an intent to revoke.
6. A patient admitted to a health facility or agency has the same rights listed under section 20201 of the public health code, 1978 PA 368, MCL 333.20201.
(10) A surrogate shall communicate the surrogate's assumption of authority as promptly as practicable to the members of the patient's family as specified in subsection (4) who can be readily contacted.
(11) A surrogate 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 treatment preferences of the patient expressed or evidenced while the patient was able to participate in medical or mental health treatment decisions are presumed to be in the patient's best interest.
(12) If a surrogate continues to act for more than 7 days after assuming authority, the surrogate must provide written notice to all persons identified in subsection (4) who can be readily contacted. The notice under this subsection must include, at a minimum, all of the following:
(a) The name, address, telephone number, and email address, if available, of the surrogate.
(b) The date the surrogate began acting.
(c) The current location of the patient.
(13) If there is more than 1 reasonably available member of a class having priority, members of the class shall select a single surrogate from the class by majority vote. A health care facility or agency or health care provider is not required to affirmatively seek out all members of a class.
(14) If there is a dispute regarding the selection of the surrogate, any person interested in the welfare of the individual may file a petition in the court for an order appointing a surrogate. The court shall appoint the individual having the highest priority who is suitable and willing to serve. If selecting between individuals who share the same priority, the court shall consider the individuals' familiarity with the patient's health and values and the individuals' availability.
(15) A surrogate acting under this part has the same authority, rights, responsibilities, and limitations applicable to a patient advocate in section 5509(1) other than section 5509(1)(d) and (e).
(16) Surrogates and health care providers acting under this part are bound by the same restrictions applicable to a patient advocate in section 5512(2) to (6).
(17) A health care decision made by a surrogate for a patient is effective without judicial approval.
(18) Unless related to the patient by blood, marriage, or adoption, a surrogate may not be an owner, operator, or employee of a health care facility at which the patient is receiving care or be the patient's attending health professional, unless no other potential surrogate is readily available.
(19) An attending health professional may require an individual claiming the right to act as surrogate for a patient to provide a written declaration under penalty of perjury stating facts and circumstances reasonably sufficient to establish the claimed authority.
(20) If an individual of a higher priority to the surrogate becomes available and willing to be the surrogate, the individual with the higher priority is considered the surrogate.
(21) A surrogate does not have authority to bind the patient to an arbitration agreement without specific authorization from the patient or a court order.
(22) A surrogate shall not move a patient out of state without a court order, unless the patient is a resident of the state to which the patient will be moved.
Sec. 5603. (1) Before implementing a health care decision made for a patient by a surrogate, an attending health professional, if possible, must promptly communicate to the patient the decision made and the identity of the person making the decision.
(2) An attending health professional who knows of the existence of a patient advocate designation, a revocation of a patient advocate designation, or a designation or disqualification of a surrogate, shall promptly record its existence in the patient's health care record. If the patient advocate designation, revocation of a patient advocate designation, or designation or disqualification of a surrogate is in writing, an attending health professional shall request a copy and, if one is furnished, shall arrange for its maintenance in the health care record.
(3) A physician who makes or is informed of a determination that a patient lacks or has recovered capacity, or that another condition exists that affects an individual instruction or the authority of a patient advocate, guardian, or surrogate, shall promptly record the determination in the patient's health care record and communicate the determination to the patient, if possible, and to any person authorized to make health care decisions for the patient.
(4) A health care provider or facility or agency providing care to a patient under this part shall comply with the applicable provisions under section 5511(2) to (4).
Sec. 5604. Unless otherwise specified in a patient advocate designation, a person then authorized to make health care decisions for a patient has the same rights as the patient to request, receive, examine, copy, and consent to the disclosure of medical or any other health care information.
Sec. 5605. (1) A health care provider or facility or agency acting in good faith and in accordance with generally accepted health care standards applicable to the health care provider or facility or agency is not subject to civil or criminal liability or to discipline for unprofessional conduct for any of the following:
(a) Complying with a health care decision of a person apparently having authority to make a health care decision for a patient.
(b) Declining to comply with a health care decision of a person based on a belief that the person lacked authority.
(c) Complying with a designation of patient advocate and assuming the designation of patient advocate was valid when made and has not been revoked or terminated.
(2) An individual acting as patient advocate, guardian, or surrogate under this act is not subject to civil or criminal liability or to discipline for unprofessional conduct for health care decisions made in good faith.
Sec. 5606. (1) A health care provider or facility or agency that intentionally violates this part is subject to liability to the aggrieved individual for damages of $1,000.00 or actual damages resulting from this violation, whichever is greater, plus reasonable attorney fees.
(2) A person that intentionally falsifies, forges, conceals, defaces, or obliterates an individual's designation of patient advocate or a revocation of a designation of patient advocate without the individual's consent, or who fraudulently induces an individual to give, revoke, or not give an advance health care directive, is subject to liability to that individual for damages of $2,500.00 or actual damages resulting from the action, whichever is greater, plus reasonable attorney fees.
Enacting section 1. Section 66h of the social welfare act, 1939 PA 280, MCL 400.66h, is repealed.
