The term probate refers to the legal process by which a person's property (the probate estate) is distributed to his or her heirs after death. The probate process is under the jurisdiction of the the Michigan Probate Court system. In some cases the probate court directly supervises the administration of the estate. In other cases, the supervision is in formal. In all cases, the administration of the probate estate is directly managed by a personal representative who is formally or informally appointed by the court.
Generally speaking, the probate processing involves 3 steps:
Collection of the assets. During this phase the personal representative must assemble, secure and prepare a complete inventory of the assets of the estate.
Payment of charges and debts. Once the assets are gathered, the PR must pay the any valid claims against the estate from the estate's assets. Such debts may include funeral expenses, taxes, debts to creditors, attorneys fees and general costs of administration
Distribution of the assets. The final step in the process is for the PR to distribute the remaining assets according to the deceased individuals will (or Michigan's intestate succession laws if there is no will.)
A living will or patient advocate is a common term used to describe what is know as Designation of Patient Advocate ("DPA") under Michigan law. A DPA is a legal document that allows a person over the age of 18 to appoint an agent to make decisions and exercises powers concerning care, custody, and medical or mental health treatment. The DPA only becomes effective when the patient is unable to participate in his or her medical or mental health treatment decisions because of illness or disability.
The legal requirments for a patient advocate are set forth by a Michigan statute in the Estates and Protected Individuals Code. That statute sets forth four basic requirements for a DPA:
- Must in writing and dated
- Must be witnessed by at least two people who are not related to the patient
- Must be made part of the patient's medical record
- The patient advocate must accept the designation as patient advocate before he can act
Michigan law provides that a properly draft patient advocate document can confer upon the designated patient advocate the right to make any medical decision the patient could make if she was able to do so for herself. Such powers include:
- The power to make decisions about anotomical gifts
- The power to select medical care or treatment options such as Hospice
- The power to force inpatient hospitalization or administration of medicine
- The power to make decisions about witholding or withdrawing medical treatment which may result in the patient's death.
These broad powers can be limited in an individually drafted patient advocate. In any case, the patient advocate is held to an extremly high standard of care in the administration of his duties.
A patient advocate that has been appointed and has accepted the appointment may only exercise her powers under the DPA when the patient is not able to participate in medical treatment decisions. This determination is made by the patient’s attending physician or a physician designated by the patient in the DPA, such as a family doctor, after an examination of the patient.
Michigan law also provides for an expedited court procedure for determining a patient’s ability to participate in medical decisions should a dispute arise.
Once the powers of the patient advocate are invoke, they remain in effect for as long as the patient is not able to participate in his medical decisions.
A DPA may be revoked by the patient at any time by communicating, in any manner, an intent to revoke the DPA.
A DPA may also be made irrevocable in some circumstances.