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Consent for nursing home care by next of kin of demented patient without health care proxy

Does the wife, in the absence of an exceuted health care proxy, need to pursue guardianship for her demented husband who now needs to be transfered to a nursing home from an acute hospital? The nursing home states that they cannot admit on next of kin authority without one or other of these documents.

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Interesting question.  My understanding of the law is that, if there was no healthcare proxy in place when a patient becomes incompetent, then a guardianship is required to make medical and care decisions.  However, in practice, hospitals and nursing homes did not always follow that path and would "find a way" to let the spouse or next of kin make decisions (or let the spouse 'help' the incompetent party to make decisions) without going through the formal guardianship process.  I have heard anecdotal evidence that healthcare facilities are becoming more conservative in their approach to this issue and are now, as you have found, requiring either a proxy or a guardianship.  If you contact an elder law attorney (to start the guardianship process) and he or she has other ideas about how to resolve this issue, I'm sure our readers would love to hear about it.  Good luck.  For more information or to post a questions, visit our Massachusetts Elder Law Discussion Forum.



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