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Can You Legally Make an Aging Parent Get Medical Care?

By November 14, 2011No Comments

The answer to this complex question is sometimes, “no”, and sometimes, “it depends”. For a person who is totally consultation competent to make medical decisions and who does not have impaired judgment, you cannot force treatment, medication or anything on a person, even it a doctor prescribes it. This includes mentally ill persons who still have decision-making capacity, which can be different from mental illness. We do not force mentally ill persons to take psychiatric medicines when they don’t want to take them, even if it means homelessness or other difficulties will result. This situation is different for elders who have lost decision-making capacity due to cognitive decline, memory loss, disease processes, or dementias.

For aging and elderly persons who are no longer capable of making reasoned decisions, the law allows what is called “substituted judgment” by a person legally authorized to make decisions for the incapacitated one. That is, the legally appointed person, who may be a guardian with complete authority over an aging elderly person, or power of attorney for healthcare, uses his or her judgment about what is best for the aging elder, and makes medical decisions about treatment. Clearly, it is ideal when the incapacitated person has spelled out his or her wishes in a legal document, called a power of attorney, living will or healthcare directive. If, for instance, the elderly aging parent does not want to be resuscitated at the end of life and put this wish in the document, the power of attorney, or “agent”, knows what to do. Without things being spelled out in a document, it is more difficult. However, the legally authorized agent has complete authority to decide whether the elder should be given medication, get an infection treated, undergo surgery, etc.

When an incompetent elder or aging parent refuses treatment, the legally appointed agent has the authority to coax, persuade, and urge the elder to take the medication or treatment, and distract the elder from refusing, if that is the agent’s best judgment. This is a very uncomfortable area for most.

On the one hand, the elder’s wishes should be honored when possible. On the other hand, responsible agents do not let elders who can’t make safe decisions do what is clearly dangerous or harmful. We don’t let incapacitated elders give away a million dollars to a phone scammer, because we want to “honor their wishes”. That would be ridiculous. By the same token, we don’t let incapacitated elders wander out in traffic, take poison, or toss out their vitally needed heart medicine to “honor their wishes” either. Reason and good common sense have to be used in these situations. An elder’s “wishes” no longer make sense when they are harmful, and are a departure from what the elder did before becoming impaired. If the agent is not a family member, and family is available to give input, a prudent agent will consult with caring and responsible family members about the best course of action for the elder. There is no single solution to the question of what is best.

The health and safety of an incapacitated elder should be the guiding principle for a legally appointed agent in making healthcare decisions. ”Substituted judgment” is unimpaired judgment as to what is best, even in the face of an incapacitated elder’s refusal. No, one can’t force medications down anyone’s throat. But, any competent, licensed health care professional knows many ways to overcome elders’ resistance to medications and treatment. Resistance and refusal are common with aging persons who are forgetful, suspicious or who suffer from dementia. If your elder is incapacitated and is refusing what’s needed to be safe, get advice from someone who knows how to handle the situation. A skilled geriatric nurse, professional care manager, your elder’s doctor, or experienced medical social worker can be invaluable.

For information about how to get help with caregiving and your elderly aging parent, see The Boomer’s Guide to Aging Parents, How to Find and Use a Care Manager, part of a series, available at AgingParents.com.

By Carolyn L. Rosenblatt, R.N., B.S.N., Attorney at Law

© 2009, AgingParents.com

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