Michigan Governor’s Executive Orders Highlight the Importance of Having a Power of Attorney

Media coverage of the COVID-19 pandemic is replete with horror stories about assisted living residents being on “lock-down” and unable to visit with loved ones. People have been avoiding the hospital because they have been told that they will “die alone.” This is primarily because hospitals and congregate care facilities have misunderstood Governor Whitmer’s Executive Orders. Executive Order 2020-72 and Executive Order 2020-108 have been replaced by Executive Order 2020-136, which basically operates as an extension of those two replaced Executive Orders. Although very little has changed, directors of facilities have nevertheless begun citing “the new Executive Order” as a reason for denying visitor access. This interpretation is incorrect. The first directive of the Governor’s Executive Order 2020-136 states as follows:

“Except as otherwise provided by the order by the Director of the Department of Health and Human Services (DHHS), all healthcare facilities, residential care facilities, congregate care facilities, and juvenile justice facilities must prohibit from entering their facilities any visitors that: are not necessary for the provision of medical care, the support of activities of daily living, or the exercise of power of attorney or court-appointed guardianship for an individual under the facility’s care; are not a parent, foster parent, prospective adoptive parent, or guardian of an individual who is 21 years of age or under and who is under the facility’s care; are not visiting an individual under the facility’s care that is in serious or critical condition or in hospice care; and are not visiting under exigent circumstances for the purpose of performing official government functions.”

In other words, while these facilities may still be on “lock-down,” Governor Whitmer has provided an exception for holders of a power of attorney. Once inside, however, holders of a power of attorney must still be subjected to a health evaluation, which, according to the Executive Order, must include at minimum an inquiry into whether an individual is experiencing symptoms of respiratory infection, fever, cough or shortness of breath, contact in the last 14 days with someone with a confirmed diagnosis of COVID-19, and any other criteria specified by the Director of DHHS. Those seeking entry must also wear a face mask, covering both the nose and mouth, when indoors or within six feet of another person. Some have found, however, that they are more likely to be left alone by staff if they put their mask on and keep it on.

The Governor’s Executive Order defines “residential care facilities” as including without limitation: homes for the aged, nursing homes, adult foster care facilities, hospice facilities, substance abuse disorder residential facilities, independent living facilities, and assisted living facilities. Individuals who are considering moving into one of these facilities should be aware that having a properly drafted power of attorney could mean the difference between maintaining contact with the outside world or becoming completely isolated.

Linda Davis Friedland is an attorney in our Livonia office where she concentrates her practice on elder law, guardianships, conservatorships, wills, trusts, estate planning, probate administration, trust administration, and litigation in probate court. She also handles matters involving business law, business succession planning, commercial litigation (UCC), contract disputes, shareholder disputes, employment and labor law. As part of her business law practice, she defends creditors against lawsuits filed by aggressive bankruptcy trustees.

Ms. Friedland is a member of the Probate & Estates and Elder Law sections of the State Bar of Michigan, and she provides continuing education training to attorneys, accountants, and financial planners in the areas of estate planning, probate, trust administration, and tax law. She may be reached at (734) 261-2400 or lfriedland@cmda-law.com.