Guardians Can Now Execute DNR Orders
As a Public Administrator, a professional fiduciary serving Waterford & Clarkston, the issue of executing a DNR order [Do Not Resuscitate] continually arises in my law practice. The issue has been politically charged for years.
DNRs have been governed until this week by the “Do-Not-Resuscitate” Procedure Act. The DNR Act is now supplemented by Public Act 155; passed last November and taking effect tomorrow.
Here is the crux of problem faced by court-appointed fiduciaries and care facilities:
On the one hand, the Estates and Protected Individuals Code [EPIC], Michigan’s probate code, in the chapter on Guardianships, indicates that the guardian must take necessary steps to respect the protected individual’s wishes, and to provide them with proper medical care. Guardians have been guided by an ethics opinion issued by the Attorney General in 2003 that proscribed fiduciaries from executing a DNR order relative to their wards, unless such an order was issued by the probate court.
On the other hand, in many cases, licensed care facilities that receive incapacitated individuals require that the protected individual have an executed DNR before they will accept the person into their facility. Meanwhile, the hospital wants the recuperating individual discharged to the care facility asap given the exorbitant per diem costs of care.
The care facility, especially in terminal cases, does not want to incur the cost to administer the inevitable ER run back to the hospital in a few days, or even hours, of a ward’s return to the facility.
Procedural Problem: getting before a probate judge on a petition for authority to execute a DNR order takes 14-days, unless you can convince the court that your specific circumstances constitute an “emergency”. Often, the hospital’s fiscal pain does not equate to an emergency in the court’s eyes.
In one recent case that this Public Administrator experienced, I visited my ward in an area hospital who was in the throes of terminal kidney failure and was non-communicative; there was no advanced directive [living will]. The hospital wanted her gone; her former care facility would not take her back without an executed DNR.
My staff immediately petitioned the court but we were unsuccessful in obtaining an emergency hearing date thus, we began a 14-day wait period during which the ward died. Our objective was to provide our ward with the most comfortable and dignified setting possible. Anyone would agree that was not on the floor of a hospital.
The new law allows a guardian to execute a DNR order outside a hospital setting, provided the protected individual’s treating physician also signs the order. In our recent case, the ward’s former care facility would have taken her back if I would have had the authority to execute DNR without first seeking court approval. Now, guardians have that power, provided the decision is endorsed by the treating physician.
The legislative analysis summarizes the new law as follows:
Expands the power and authority of a Guardian to execute or revoke a DNR order;
Revises the definition of a DNR order to make such an order applicable to all places outside a hospital;
Provides for the voiding of a revoked DNR order, not for the destruction of such an order [i.e. the word “VOID” is to be stamped on each page of the DNR order];
Revises the information that is required to be on the DNR order; and
Requires a Guardian Ad Litem to advise the allegedly protected individual that is the subject of a guardianship proceeding that an appointed Guardian will now have the power to execute a DNR order on behalf of that individual.
Prior to becoming law back in November, the bill received broad support from probate judges, the probate bar, Michigan Right to Life, and a broad mix of lobby groups. For non-related court-appointed fiduciaries, this new law is a welcome improvement to how things were done in the past.