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Medical PoA and competency

Discussion in 'Power of Attorney & Living Wills' started by Bob M., Sep 20, 2022.

  1. Bob M.

    Bob M. Law Topic Starter New Member

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    My mother in-law has dementia and has become unable to care for herself. As such, she became malnourished and gone into kidney failure, so is now in an assisted living facility.

    My wife and her brother who are both disabled are tasked with dealing with her insurance, and financial needs and have both a medical and financial PoA for her, and this ordeal is trying for both of them.

    My mother in-law tells my wife she no longer wants dialysis, so my wife is trying to get her back home so she can end her days comfortably. She is having a hard time with the care facility as they tell my wife that my mother in-law tells them she wants to continue her treatments. But she is not in her right mind and we wonder if she truly understands the situation, or if the facility is truthful.

    Where is the line where between her rights as a patient and my wife's ability to make decisions on her behalf? What should happen next to get her transferred to her home for hospice care?

    Any advice is greatly appreciated. Thanks in advance.
     
    Last edited: Sep 20, 2022
  2. adjusterjack

    adjusterjack Super Moderator

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    I can't say whether the people at the facility are truthful or not. Just understand that the facility loses a great deal of revenue every time a patient is removed. No surprise that they are resistive to the idea.

    Your wife and brother-in-law can go to the facility, pack up her bags, and take her out. The POAs should be sufficient for signing anything.

    If the people at the facility try to physically stop the removal, call the police.
     
  3. flyingron

    flyingron Well-Known Member

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    Unfortunately, the Medical POA won't work if she contradicts the order or rescinds it unless she's proven to be incompetent.
     
  4. adjusterjack

    adjusterjack Super Moderator

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    And that kind of issue is likely to require a court order.
     
  5. Bob M.

    Bob M. Law Topic Starter New Member

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    Thank you all for the comments. Let me clarify that she doesn't have an official diagnosis of dementia, so when she tells the care facility she wants to continue they say they want to respect her wishes.
    My wife's dilemma is getting her evaluated. Her mom is angry with her and doesn’t trust her some days which is likely the dementia. Asking the facility for the evaluation is futile because they keeps brushing off or deflecting.
    Is there a process for getting this resolved so my wife can get her mother home and end treatment?
     
    Last edited: Sep 20, 2022
  6. Zigner

    Zigner Well-Known Member

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    Driver over there and pick her up and take her to her medical appointment.
     
  7. Disabled Vet

    Disabled Vet Well-Known Member

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    This treatment is keeping her alive, correct? You're asking how to bring your mother-in-law home to end her life. If these treatments are keeping her alive, why would you want to stop them?
     
  8. flyingron

    flyingron Well-Known Member

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    You're likely stuck unless she consents. Even with a court action, i can't see them letting you pull the plug on something like dialysis. It's not really an "exceptional" means of keeping someone alive.
     
  9. Tax Counsel

    Tax Counsel Well-Known Member

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    Here's the first problem: simply having dementia does not necessarily mean she is legally incompetent to make decisions about her own care. The standard for competence is not all that high. I see nothing in your post that would clearly indicate to me that she's not competent. If she is legally competent then it's her choice whether to leave the facility or not. The POA she gave your wife and your wife's brother would not override her own expressed views on what she wants when she is competent.

    If she is not competent, then several issues come up. First, how long has she been incompetent? If she was incompetent when she signed the POA then the POA is no good. If she was competent at the time she signed it and then became incompetent later, the POA is no good unless it is a durable medical power of attorney, i.e. one that expressly says that the POA remains in force after she becomes incompetent. Moreover,

    Even if she is not competent and the POA is good, that may not be enough. If she expressed a view while she was competent on the matter of staying on dialysis, that would have significant weight on how a court would rule on the issue. If she has not expressed a view on that while competent (that you can prove) that makes the matter much harder. In that case, state policy on such things will have a significant impact, as the Supreme Court held in Cruzan v. Director, 497 U.S. 261 (1990). Moreover, the Supreme Court of Illinois has held that:

    The final step in a patient's exercise of the right to refuse life-sustaining treatment is to determine the role of the court. The majority of the cases addressing the issue do not specifically require a court order to withdraw artificial life support. (Rasmussen, 154 Ariz. 207, 741 P.2d 674; Drabick, 200 Cal.App.3d 185, 245 Cal.Rptr. 840; Jobes, 108 N.J. 394, 529 A.2d 434; Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266; contra In re P.V.W. (La.1982), 424 So.2d 1015.) Nevertheless, we feel that to halt artificial sustenance, the intervention of a judge is proper for several reasons.

    In re Est. of Longeway, 133 Ill. 2d 33, 51, 549 N.E.2d 292, 300 (1989).

    In short, you likely will have to go to court to do what you wish to do. I'd strongly urge you to see an elder law attorney to review all the facts and advise you the best way to go about this before you try to force a confrontation with the care facility over this. You'll want to be sure you have all your ducks in a row before charging in there to take her out.
     

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