Submitted by Kiren on Wed, 01/04/2012 - 09:18
Posted in
Hello. My Aunt lives in an assisted living facility in Massachusetts but she needs to go to a nursing home because she's becoming increasingly demented. She does not have a healthcare proxy and all agree that it is too late to have her sign one now because she would have no idea what it means or what it is. The nursing home that we are considering is also an assisted living facility and they want the "Family" as they put it to sign a document saying that it's OK for them to rely on the guidance of one person that we select to make decisions for our Aunt. They feels this will avoid the need to go to the courts to get a guardian appointed for my Aunt. To me it seems a bit odd. What do you think?
Medical care with no Healthcare Proxy in place in Massachusetts
This is an ongoing issue for nursing homes, hospitals, and other institutions in MA because Massachusetts does not have a "substituted judgment" law that allows a designated family member to give guidance to the institutions in cases like your aunt's, where the principal in incapacitated. As you know, often the family and the institution would like to avoid the need for a guardianship or conservatorship in cases, like yours, where the loved one failed to execute a healthcare proxy or power of attorney that would allow one family member to make decisions on behalf of the incapacitated person. Obtaining a guardianship or conservatorship takes time and money.
However, the reason I would never advise a nursing home or other institution to engage in this type of "end-run" around Massachusetts law is a little something called informed consent. You can follow that link for more information, but essentially Massachusetts law requires doctors and institutions to obtain informed consent from a patent before performing treatments or procedures. They can rely on a healthcare agent or guardian for that informed consent but, again, Massachusetts law does not provide an easy way around the dilemma you and your family are in. The institution should, in my opinion, guide the family toward appointing a guardian. Without that step, all it takes is one disgruntled member of the family, someone who claims that the treatment given is in violation of the wishes of the patient, and the institution and the doctors can find themselves in hot water, possibly on the business end of a malpractice lawsuit.
As to your unique situation, you will have to decide. If by "family" you mean you and one other person, the only surviving family of the aunt, and the two of you agree on what should be done, then it is unlikely any issues will develop. In other, more messy, situations, you and the institution may be better served by seeking a guardian. Good luck.