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 In order to help her, the first thing I needed to know was her brother’s mental competency. If her brother is mentally competent and desires to leave the facility, he has every right to communicate that wish to the nursing home and to be moved. Under California and Federal laws, a competent patient makes his own decisions about what type of treatment he wants or doesn’t want. This includes discharging oneself from a hospital or nursing home. His sister would only be assisting him in this move. If he is mentally incapacitated, it is a little more complicated. Although the (California) law presumes that a person has capacity until his rights are taken away by a judge, the nursing home can still interfere with her wishes by asserting that she has no legal authority. If a patient is incapacitated mentally and he has signed an advance directive giving medical authority to another person, that person would make all treatment decisions, including whether or not to move the patient. However, for the majority of people who have not executed advance directives (or powers of attorney for health care), their “significant other” (friend or relative) should be allowed to make such decisions informally, and the hospital or nursing home should go along with those decisions. In my client’s case, her brother is marginally competent: Sometimes he is very clear about things, and sometimes he is not. He also has not written an advance directive. My client thinks the nursing home is trying to keep her brother as a patient for financial reasons. In this situation, where she is the primary family member and caregiver, the nursing home should discharge him at her request because she is the “significant other.” If they refuse to go along with her request, she could contact her county’s long-term care ombudsman (patient/family advocate at long-term care facilities) to mediate the situation and protect the patient’s rights; or she might consult an attorney who can advocate on her (and his) behalf. How did the story end? I interviewed the brother, and he was able to express to me that he wanted his sister to make his decisions for him. I do believe that the administrator was keeping him there for their own self interests, so I politely explained to the nursing home his right to move, and they ultimately agreed. In some cases, with a nursing home administrator who is more intransigent or where other family members might be fighting the authority of one person to make a particular medical decision, it may be necessary to spend a lot of time and money to get court authority to make medical decisions for an incapacitated person. This is called a conservatorship (in California) or a guardianship (in other states). The moral of the story? Every adult should sign an advance directive or durable power of attorney for health care, appointing a person of their choosing to make medical decisions for them in case of incapacity. This will avoid the nursing home or anyone else from derailing the decisions of the appointed agent on behalf of the incapacitated patient. Janet Morris is a practicing attorney in the area of elder law with Bet Tzedek Legal Services, The House of Justice, in Los Angeles. Through her Family Caregiver Project she assists elders and their caregivers with a variety of legal issues. Janet is an executive board member of the California Coalition of Caregivers and sits on the board of the Alzheimer’s Association, California Southland Chapter. She has co-authored numerous publications including the “Caregiver Companion.” Fluent in English and Spanish, Janet has given hundreds of speeches in both languages. In 2005, she received the Caregiver of the Year Award from AARP and KCET. In 2007 she received an award from MetLife for her contributions to the area of caregiving. Send your questions to Janet@smartnow.com. 
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