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January 01, 2013

Model Michigan State Long Term Care Policy Statement Available for Adaptation

Bradley Geller

The Michigan State Long Term Care Ombudsman Program has developed a Policy Statement to clarify the broad area of the law which we term surrogate decision-making. The statement is in three parts: Advance Directives, Family Decision-Making, and Guardianship, and is directed toward nursing home administrators, social workers, directors of nursing, admissions personnel, and nursing home surveyors. For ease of reading, the information is presented in a question-and-answer format and could be adapted for use in other states. The Statement is available online at: under Health Care Decision Making.

The Policy Statement can be used by nursing homes to help fulfill federally mandated responsibilities to educate staff; to provide community education; and to assist willing residents to complete an advance directive.

In reviewing the particulars of the law, it is important to keep in mind the grand purpose of this statutory and regulatory scheme concerning surrogate decision-making: to honor the wishes, values, and dignity of the individual. And it is also important to recognize the unfortunate chasm between the law as it is written, and the law as it is practiced.

The law has long been clear that an adult who is able to give informed consent to medical treatment—who understands her or his condition, treatment options, intended effects, and possible side effects of these choices—has sole right and authority to make those decisions. Residency in a nursing home does not affect this right.

The law concerning who has authority to make medical decisions if an adult lacks the ability to do so has evolved over the years through new laws and court decisions. The process in Michigan has been episodic, non-comprehensive, and incomplete.

The situation is understandably confusing to long-term care residents, family members, health care providers, long-term care ombudsman, and state officials charged with overseeing the quality of nursing home care. For years, surveyors cited nursing homes if every resident did not have either an advance directive or a guardian. This misinterpretation of the law had adverse consequences for residents and for nursing homes.

Nursing home staff can be under the misimpression that a patient advocate has authority immediately upon the signing of an advance directive, or that a guardianship preempts almost all rights of a resident.

Some nursing homes have pushed for guardianship for the convenience of the nursing home rather than the needs of the residents.

The Michigan State Long Term Care Ombudsman Program has developed other materials on surrogate decision-making for residents of long term care facilities and their families. More resources, including the booklet Advance Directives: Planning for Medical Care in the Event of Loss of Decision-Making Ability, are available on the Michigan Long Term Care website. ■

Bradley Geller

About the Author: Bradley Geller has initiated legislative reforms, policy development, and educational efforts focusing on surrogate decision-making as counsel for the Judiciary Committee of the Michigan House of Representatives, counsel for the Washtenaw County Probate Court, and as an assistant long term care ombudsman.