The Right to Make Personal Care decisions.

          Under
California law every person is presumed to be competent to make his or her own personal
care decisions unless otherwise determined incompetent by a court.  Nonetheless capacity decisions are made all
the time by others that affect one’s rights.
Seniors may be especially concerned about others taking away their decision
making rights.  So what are these
personal care rights?

          Unless
a court order says otherwise, or in the case of a so-called 5150 situation (i.e.,
someone is either dangerous or gravely disabled), you have the right to make
your own health care decisions, even when your agent under an advance health
care directive disagrees.  Thus, so long
as you communicate your wishes to the medical care providers, they will follow
your instructions and not those of either your agent under an advance health
care directive or family member. 

 This may not always turn out to be the best.  Recently, a client of mine told me that when
her husband and she were in the hospital’s ER to treat her husband for a
concussion, the ER doctor would only listen to her husband, when he said that
he did not want a CAT scan; even though she was both his wife and his agent for
health care decisions.  A day or so after,
when the husband was more lucid, he was incredulous as to why his wife did not
assert more authority and insist that he be given a CAT scan. 

          As I
explained, as her husband’s agent under a health care directive, she only had
secondary authority to her husband, the principal.  He could dismiss her as his agent at any
time.  Thus, whenever a principal
communicates his or her wishes regarding health care a medical care provider
will follow those instructions and will likely disregard any competing
instructions given by an agent. 

          Next,
what about the right to determine where you live?   Unless a court order says otherwise, you
also have the right to decide where you live and don’t live.  All admissions to a nursing home must be
voluntary, unless pursuant to a court order committing someone.  That means, any person being placed can overrule
their agent’s or family member’s decision to admit them. 

          Furthermore,
once admitted, the person admitted still retains all his or her legal rights,
including the right to decide personal care decisions affecting his or her person.  This includes the right to make informed
decisions regarding medications, i.e., informed consent.  Legally, only a court appointed conservator exercising
court authorized special powers can require someone to take antipsychotic
medication against their wishes or without informed consent. 

Unfortunately, the
informed consent requirement is not always observed in practice.  That is, difficult to manage persons – including
persons suffering dementia, Alzheimer’s, and senility – have been given drugs to
restrain their behavior and have been physically forced by nursing home staff
to submit to physical hygiene (such as bathing). 

Moreover, another right
is the right to control one’s visitation, telephone calls, and mail.  This right applies to a conserved person
unless the court orders differently. Otherwise, as has tragically happened, a
conserved person can be made isolated and become estranged from their close
friends and family.  

Protecting such fundamental
rights and correcting abuses is the subject of proposed legislation AB 2171, The
Residential Care Facility Bill of Rights, presently before the State
Legislature.   Anyone seeking more
information can visit http://www.canhr.org/legislation.