Terence Tune, a 75-year-old, had had a stroke a year ago. Following the stroke, he experienced some memory and communication problems. His comprehension was not seriously impaired, but frequently when he attempted to respond verbally, the words he said were not what he intended, making it appear that he did not understand. Given sufficient time, he was able answer appropriately.

Terence’s only son, Tommy believed his father, who lived alone, ought to be placed in an assisted living environment. Terence, who was fiercely independent, preferred to live in his own home and refused to go to a facility. However, Terence agreed, if Tommy ceased attempting to force him into assisted living, he was willing to hire someone to come into the home to assist with household chores, grocery shopping and meal preparation on a daily basis.

Before he had the stroke, Terence signed a Statutory Durable Power of Attorney (SDPOA), naming Tommy as his agent to handle his financial affairs in the event that he became incapacitated. The SDPOA was a “springing” power, meaning that it did not authorize Tommy to take over until Terence was declared incompetent to handle his own affairs by two competent treating physicians.

Terence also signed a Medical Power of Attorney (MPOA) giving Tommy the authority to make medical decisions for him in the event he was incapable of making these for himself. This MPOA required that, before Tommy could make Terence’s medical decisions, a treating physician must have declared that Terence could no longer make them.

Tommy was averse to Terence’s suggestion of having care come into the home, believing this was not adequate. Instead, Tommy believed his father needed 24-hour care. He sought legal advice as to whether he could force his father to move from Somervell County into an assisted living facility near Tommy’s home in Austin.

Can Tommy force his father into assisted living without the father’s consent?

The attorney advised that Tommy could not force Terence into assisted living because of rights Terence had under both state and federal law. The attorney referred Tommy to the Texas Human Resources Code, §102.000, et seq., which sets out these rights. Specifically, the attorney noted that §102.003(a) provides: “An elderly individual has all the rights, benefits, responsibilities, and privileges granted by the constitution and laws of this state and the United States, except where lawfully restricted. The elderly individual has the right to be free of interference, coercion, discrimination, and reprisal in exercising these civil rights.” Terence had the right, under §102.003(b)(1) to make his own choices regarding his “personal affairs, care, benefits and services.”

According to the attorney, these provisions made it clear that Tommy could not force or coerce his father into assisted living, unless Terence’s right to that choice had been lawfully restricted.

Tommy then produced the medical POA and the SDPOA (because he realized, if he put Terence in an assisted living facility, he would have to take over Terence’s money in order to pay the facility for that care.) Tommy asked if these documents provided the lawful restrictions needed to allow him to put Terence into assisted living.

Did the Powers of Attorney lawfully restrict Terence’s rights?

The attorney examined the medical POA and pointed out that it required that a treating physician determine that Terence no longer had the capacity to decide what treatment he wanted before Tommy could make those decisions for him. Tommy admitted no treating physician had, to date, made such a determination.

Similarly, after he had read the SDPOA, the attorney advised Tommy that he would need to obtain the opinion of two physicians that Terence could no longer handle his financial affairs before Tommy could take them over.

The attorney concluded that the SDPOA and the medical POA would not be effective to lawfully restrict Terence’s rights unless the appropriate medical determinations had been made. Therefore, Tommy could not, at that point, force Terence into assisted living based upon the SDPOA or the medical POA.

What is required for medical determination of incapacity?

As is common practice among family members in similar circumstances, Tommy then approached Terence’s doctor and requested that the doctor perform an examination of Terence’s capacity and following that examination, complete an evaluation form stating Terence’s mental state and capacity. Tommy, feeling that he could evaluate Terence’s needs than Terence could for himself, put pressure on the doctor to find that Terence lacked capacity to make medical decisions on his own.

Fortunately, Terence’s physician had a clear understanding of Terence’s rights under the law as well as a clear understanding that the obligation of the physician was to his patient and not to Tommy, did not succumb to that pressure. He reviewed Terence’s chart for the past year. Terence’s physician did a thorough evaluation of Terence, based upon multiple visits. He set up follow up visits for observation of Terence’s behaviors and comprehension, taking into account many tests rather than limiting his response to a programmed set of a few questions, before completing the written evaluation. The physician informed Tommy that Terence, though suffering some cognitive and expressive decline, maintained the ability to make his own financial and medical decisions.

Preserving the rights of the elderly

Unfortunately, not all physicians have the requisite understanding of the law or their obligations. All too often, physicians can be inordinately influenced by family members’ concerns and pressure to the detriment of the patient’s rights. Too many physicians complete evaluations based upon a few questions and a brief examination that does not test capacity effectively.

It is incumbent upon seniors and their family members to know what the rights of the elderly are and to make certain treating physicians, if approached to make an evaluation of capacity, will respect those rights under the constitution, state and federal laws.

- Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth, Texas. She lives and practices in beautiful Somervell County, near Chalk Mountain. She can be contacted by phone at (254) 797-0211 or by email at swreed2@yahoo.com.