LANSING, Mich. — Sen. Ruth Johnson has sponsored legislation to have Michigan establish a clear framework in Michigan for family members or close friends to make critical medical decisions when necessary, as opposed to a court-appointed guardian.

“I think most people believe this is how the system works now, but unfortunately — from a legal perspective — that is not really the case in Michigan,” said Johnson, R-Holly. “Unless you have a durable power of attorney for health care and it’s on file with the health care provider or your loved one knows to bring it with them to the hospital, they might not be able to make decisions for you if you become unable to make them for yourself.”

Currently, hospitals and other health care providers in Michigan face legal risks and uncertainty when providing treatment to an incapacitated person who does not have a clear authorized decision-maker, such as a patient advocate designated through a durable power of attorney for health care. This can result in a petition to the local probate court to appoint a guardian with the legal authority to make decisions on behalf of the incapacitated person.

Senate Bill 482 would create the Michigan Medical Treatment Decisions Act to allow a family member or close friend to serve as a surrogate decision-maker in the event of a loved one’s incapacity.

“This is a commonsense reform that is long overdue in Michigan. There is some version of this in the vast majority of other states already,” said Johnson. “People in Michigan often rush to the hospital when something happens to a family member, only to have frustration added to their concern when they’re unable to help make the medical decisions they know their loved one would want when they become incapacitated. This reform would clarify who is able to direct care when time is critical.”

As of December 2022, 46 states had enacted default surrogate statutes for health care decisions, according to the American Bar Association. Such laws allow for the timely care of patients with medical decisions being made by a family member or close friend who better understands the wishes and values of the individual than a court-appointed guardian.

The reform would not supersede any documented designation of a patient advocate or any advance directives on file with the health care provider. Instead, it would establish an order of priority for family members or close friends to help with medical decisions when necessary.

Similar legislation in the House of Representatives was recently reported favorably by the House Judiciary Committee on a bipartisan basis. House Bill 4418 is sponsored by Rep. Jamie Thompson, R-Brownstown, and HB 4419 is sponsored by Rep. Angela Witwer, D-Delta Township.

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