Decision Making Authority & Resident-Family Conflict

Frank Russo Vice President of Risk Management Silverado

Mike Pochowski Director, Government Affairs & Legal Operations Brookdale

Josh Davis Partner – Healthcare Leader Lewis Brisbois Bisgaard & Smith

Who  is  en)tled  to  make  decisions  for  the  residents  when  the  resident  can’t  make  decisions  

on  their  own?  

▶  Always consult specific State laws for legal authority or ability to implement specific suggestions for minimizing or addressing family conflict with residents or community

▶  Many states have specific statutory codifications or regulations which govern a provider’s ability to adopt recommended strategies for handling conflicts. Laws vary from state to state.

▶  Presentation should not be construed as legal advice, please verify handling of situation with appropriate legal professional.

Visita&on,  Mail,  Religion  and  

Communica&on    

Protec&ng  the  Resident  and  other  community  

residents  

Resident Rights vs. Community Duties

▶  Higher Acuity is here to stay. ▶  50% of senior living residents have three or more chronic conditions while

42% have Alzheimer's or other dementia ▶  Increasing % of patient populations are frequently unable to make own

decisions. ▶  With rising Acuity comes an increased need for a centralized decision

maker to act for the resident.

Complication of Higher Acuity

▶  80% Assisted living professionals who are seeing growing demand in memory care

▶  87% Respondents who are seeing a substantial increase in acuity levels in the resident population

▶  This higher acuity dictates a need for increased sophistication by Administrators to be aware of what gives legal authority to family members and what that legal authority grants to family members.

Higher Acuity

▶  Leads to:

–  An often times compromised ability to protect one’s self from threats of harm.

–  A loss of recognition of behaviors or actions which impact the resident’s own safety

–  An inability to perform problem solving which requires complex thinking

–  An inability to make appropriate medical or financial decisions

–  An increased dependence on support systems such as family members, healthcare professionals, community personnel for safety and protection needs.

Higher Acuity

▶  Is the Resident an appropriate individual for others to be making decisions on their behalf? What is this determination based upon? Do you see evidence which supports this determination. The primary duty is to always advocate for residents to make their own decisions

▶  POA authority vs. Resident Rights vs. State/DADS/Ombudsman vs. Non-POA Family Member (legal decision making authority)

▶  Family Dynamics

▶  Privacy (mail, visitors, family conflict, visitation, cameras in rooms, photos, videos)

▶  Financial Exploitation (on the rise)

Resident Rights vs. Community Exposure

▶  Conflicting Powers of Attorney

▶  Conflicting Authority documents

▶  When does decision making authority begin

▶  Reconciling conflicting documents

Is the Presented Legal Authority Valid

▶  Different Legal Authorities can be triggered by different events: –  Doctor’s letter establishing incompetency –  Judge’s determination of incapacity –  Date certain when power terminates or begins

When is Legal Authority Triggered

How to provide appropriate expectations of communities duty to the resident and convey expected family conduct by residents and families

Maximize  Disclosure  and  Consent  

Define  Resident/Legal  Representa&ve/Responsible  Party  Expecta&ons  of  behavior  

Address  High  Risk  Issues  in  Wri&ng  

What  needs  to  be  communicated  and  to  whom  before  admission?  

When  conversa&on  needs  to  be  revisited  if  or  when  conduct  occurs  or  reoccurs  

Legal Authority Expectations, Reality and Education

▶  Unfortunately, oftentimes, there will be inter family disputes regarding the care of a resident.

▶  Always remember, The Provider’s duty is to the resident and not to the family members or legal powers of the residents.

▶  Providers must remain neutral and unbiased during family disputes

Always Keep In Mind The Communities' Role When Resident – Family or Family – Family Problems Arise

▶  Typical ranking but varies by State

–  Resident –  Guardianships –  Powers of Attorney (must be activated) –  Conservator –  Responsible Party –  Next of Kin

Hierarchy of Decisions

▶  Court appointed Guardian is a person that has sought court approval or been appointed by a Court to serve as either a Guardian of the Person or Guardian of the Estate, or both, for a person who has been adjudicated incapacitated. Guardians have powers based upon their designation but often include medical and financial decision making authority.

Guardianships

▶  Guardian Ad Litem is an individual (usually an attorney) that has been appointed by the court in a guardianship proceeding. The position is usually temporary and lasts for the pendency of a guardianship contest or proceeding.

Guardianships

▶  Attorney Ad Litem is an attorney that has been appointed to represent the legal interests of an individual during the pendency of a guardianship contest or proceeding. The Attorney Ad Litem will usually work in conjunction with the Guardian Ad Litem to protect the resident during the pendency of a court proceeding.

Guardianships

▶  Durable Power of Attorney is a document signed by an individual that grants identified powers to an agent to act as their attorney in fact. Decisions made by DPOA are treated as decisions which were made by the person granting such powers. DPOA allows powers to continue after disability or incapacity of the individual.

Powers of Attorney

▶  Medical Power of Attorney grants the individual designated as the MPOA the power to make medical decisions on behalf of the individual signing the MPOA. This only grants powers related to medical issues.

Powers of Attorney

▶  Financial Power of Attorney grants the individual designated as the FPOA the power to make financial decisions on behalf of the individual signing the FPOA. This only grants the individual powers to make financial decisions.

Powers of Attorney

▶  Responsible Party is a term of art used to classify a relationship between a family member and the resident. The term usually shows the family member has some degree of decision making authority.

Responsible Parties

▶  Responsible Party can refer to an individual that has legal authority to act on behalf of a resident, financial authority to make decisions, or closeness of relations that entitles a person to make emergency medical decisions.

▶  Can be designated by persons with legal power to act for the sake of convenience or based upon the person’s knowledge and involvement.

Responsible Parties

▶  In an emergency situation if there is not an individual who has legal authority to act on behalf of an individual, Texas has granted powers to Next of Kin to make emergency medical decisions.

Next of Kin

▶  Inter family disputes ▶  Conflicting legal representative paperwork ▶  Duty to protect our residents irrespective of the dynamics of the situation. ▶  Providers must remain neutral and unbiased during family (estate, trust,

power, etc.) disputes.

Protecting the Resident

▶  Complaints of abuse by family members when such complained of actions are not witnessed by community personnel triggers the Provider’s duty to take steps to protect the residents.

▶  Complaints can be direct, indirect, verbally communicated or communicated in written form. Examples include complaints by a family member of physical, emotional or financial abuse, receipt of legal pleadings alleging some form of abuse or anonymous complaints regarding potential abuse of a resident.

▶  Once the complaint is received, it must be taken as true and steps must be initiated to protect the resident.

Physical or Emotional Harm, Exploitation, and Financial Abuse: Tips on Reporting and How to Handle

▶  When the restrictions are necessary to protect the resident or other residents of the community from Abuse, Neglect or Exploitation.

▶  Threats to a resident’s Health, Welfare or Safety must be addressed and steps must be taken to protect the resident.

▶  Family member must have the legal authority to request restrictions be implemented.

▶  The Provider must not allow restrictions to be enforced that are not warranted or are overly restrictive of the Resident’s Rights without adequate supporting circumstances.

▶  Depending on the severity of the behaviors, the frequency of such behaviors and the impact of the behaviors on the resident or other residents, different levels of restrictions should be put in place in order to protect the resident.

When is it Appropriate to Allow Families to Restrict Resident Rights?

▶  Protecting the resident from family and friends can be a stressful, time consuming and disruptive process but is necessary to protect the resident and community.

▶  Depending on the severity of the complaints, different levels of restriction or access to the resident might be appropriate. Always consult with your Regional Administrator and Risk Management team before instituting any visitation restrictions.

▶  Communication of restrictions to all community associates is paramount. Oftentimes, persons who have their visitation privileges restricted or terminated will attempt to enter the community and visit the resident. Should this occur it is imperative that all associates are aware of the restrictions to prevent potential harm to the resident. If confronted with a visitor that fails to abide by the restriction policy contact 911 immediately. The community has the authority to restrict and terminate visitation privileges if necessary.

Balancing Protection of the Resident vs. Resident Rights: Restrictions, Supervision or Revocation of Rights

▶  Restrictions on normal visitation rights are the least severe and can include only allowing visitation in an open area in full view of staff or other residents, restriction of visitation days or hours, or only allowing a limited time to visit with the resident. Typically, such restrictions are effective in eliminating the complained of behaviors or in protecting the resident by not allowing a situation to develop that could harm the resident while still allowing some freedoms in visitation.

Protecting the Resident: Visitation Restrictions

▶  Restrictions on normal visitation rights are the least severe and can include allowing visitation in an open area in full view of staff or other residents, restriction of visitation days or hours or only allowing a limited time to visit with the resident.

Protecting the Resident: Visitation Restrictions

▶  Supervised visits require individuals visiting the resident to identify themselves, upon entry to the community, to management personnel. Such visitors are accompanied by community personnel and supervised during the entirety of their visit with the resident.

Protecting the Resident: Supervised Visits

▶  Restricted Visits: Restricted visits allow parameters to be placed on the time, day or location of the visit. Visits can be confined to normal business hours when staffing is at its highest, certain days of the week when staffing might be high or locations in the community where certain visitor behaviors would be made in full view of other community residents or staff.

Protecting the Resident: Restricted Visitation

▶  Termination of visitation rights is the most severe and should only be employed in extreme cases. –  Resident Rights –  Direct observation of the complained of behavior or abuse is typically

required to terminate the visitation rights of an individual. –  Such restrictions should not be made without narrowly targeting the

terminated right to prevent the behaviors or acts against only the individual exhibiting the inappropriate conduct.

Protecting the Resident: Visitation Restrictions, Supervision or Revocation of Visitation Privileges

▶  Always follow reporting requirements when abuse or harm dictates.

▶  In situations where reporting is not warranted but visitation restrictions are put in place attempt to involve the Ombudsman in the decision.

▶  If the Ombudsman is not responsive prepare correspondence identifying the visitation restrictions and why such restrictions are necessary.

▶  If appropriate, it may be helpful to involve other family members in the dispute, the local police, and/or Adult Protective Services (or a similar agency). You could also involve your state surveyor to help resolve the situation.

Keeping Regulatory Informed and Involved

▶  Document as much as possible ▶  Requests in writing ▶  Keep a file ▶  Ensure persons observing such undesirable behaviors and the effect such

behaviors have on the resident document their observations. ▶  Include a provision in the Residency Agreement that allows the community

to restrict visitation and identifies expected conduct of visitors and family ▶  Prepare a warning letter to the person exhibiting such undesirable behavior

make them attend a meeting with the Administrator where community expectations are outlined and have this person sign the letter.

▶  If you are restricting visitation, make sure to put the restriction in writing.

Documentation or the CYA principle

▶  Conflicting POAs, contradictory care instructions from family members, Guardian vs. POA, family vs. family, family vs. friend

▶  Remain neutral. ▶  Avoid Favoritism

You are Not the Judge, Jury or Executioner

▶  Example: Failure to maintain neutrality case, case was filed after the daughter of a resident gained control of her father’s estate upon his death. This family member had been excluded from visiting the Community based upon questionable complaints by her brother and sister. The administrator at the time was open about her feelings of dislike of the daughter and her preferential treatment of the brother and sister. As a result, suit was filed shortly after the resident’s death. During deposition and mediation the plaintiff admitted that had she been treated with equal deference as her brother and sister she would not have pursued a lawsuit.

Remember to Document

▶  Public Relations ▶  Legal Nightmares ▶  Time ▶  Money ▶  Disruption

Real Life Examples

▶  Why? Past examples:

–  Concerned POA, asks visitation of family member be restricted due to alleged financial abuse. Provider restricts visitation based upon request. Other family confronts administrator and makes accusations versus the POA and presents conflicting POA documentation. Provider responds by restricting visitation of all family members and institutes a supervised visitation policy. Family members agree to remove visitation restrictions. The Provider maintains restrictions. Guardianship contest is filed. Court appoints Guardian Ad Litem and Attorney Ad Litem. The Provider works with GAL and AAL on visitation and care of resident. Original POA is indicted for financial abuse and found to have forged POA for personal financial benefit. The Provider maintained neutrality throughout and was able to continue caring for the resident while remaining free from litigation entanglements.

You are Not the Judge, Jury or Executioner

Thank You!