Legal Issues in Long Term Care

There are several types of legal issues you may be concerned with when you are assisting someone who is entering a nursing facility: the nursing facility contract, instructions or directions from the resident about future medical decisions, and your ability to conduct business and make decisions with or for the resident.

THE NURSING FACILITY CONTRACT

WHAT DOES THE CONTRACT COVER?

The contract spells out the conditions under which the resident is accepted. It is legally binding, so read it carefully. A comprehensive contract should:

  • State the rights and obligations of a resident of the facility, including safeguards for residents' rights and grievance procedures;

  • Specify how much money must be paid per day or month to live in the nursing facility;

  • Detail the prices for items not included in the basic monthly or daily charge;

  • State the facility's policy on holding a bed if the resident temporarily leaves the home for hospitalization, home visit, or other reason; and

  • State whether the facility is Medicaid and/or Medicare certified. If so, the facility must accept Medicaid payments when the resident's own funds are exhausted and he or she meets the criteria, or accept Medicare payments if the resident qualifies. If the facility is certified, contracts mandating private pay are illegal and cannot be enforced.

WHAT IF I DON'T UNDERSTAND IT?

In addition to your legal counsel, you can ask the nursing facility administrator and the home's social worker the specific meaning of contract provisions. But remember that an explanation is not part of a binding legal agreement.

MEDICAL DIRECTIVES

While the resident is mentally healthy, he or she should make decisions about future medical treatment. These decisions, formally written and signed, are called advance directives.

cg27.jpg (9965 bytes)Advance directives provide nursing facility staff, medical staff, and relatives with information about what treatment the resident does and does not want under terminal or irreversible conditions - such as stroke or coma - that would prevent the resident from telling the doctor how he or she wants to be treated. The most common types of advance directives are a Living Will and a Durable Power of Attorney for Healthcare.

A living will is a directive made by a person of sound mind to his/her physician to ensure that if, at any time, that person has a terminal or irreversible condition, is unable to make decisions, and death is imminent, his/her wishes will be carried out by his/her physician and family.

This particular power of attorney, made by a person of sound mind, is the only power of attorney that allows that person to appoint another person to make health care decisions for him or her if, at any time, he/she becomes unable to make such decisions. Health care decisions cannot be made by an agent relying upon a general Durable Power of Attorney.

Texas law allows family members and attending physicians to make treatment decisions on behalf of a resident who is unable to make those decisions. A form is not required, but you should ensure that the physician records the decision in the medical record. For more information, contact the physician or the nursing facility's administrative staff.

Forms for advance directives are available from the nursing facility or your attorney.

No. These are simple documents meant to be easy to complete without the need for an attorney's assistance. The nursing facility can answer any questions you have.

Copies of the advance directive should be given to the resident's physician and to the nursing facility administrator for placement in the resident's permanent file. You should also keep a copy. If the Medical Power of Attorney designates someone other than you, the person to whom it assigns responsibility should receive a copy.

YOUR ABILITY TO CONDUCT BUSINESS FOR THE PATIENT

The resident and the resident's family make these decisions. The nursing facility will ask the resident to designate a "responsible party," who will discuss financial arrangements with the nursing facility. Again, if the resident has a legal guardian, the guardian may be able to make decisions regarding finances.

There are a number of legal avenues available for making decisions and conducting business for a resident when he/she is unable to do so. These include guardianship, durable power of attorney (different from Medical Power of Attorney), trusts, and other written agreements between a resident and another individual. You can ask your attorney for more information or for help in determining your needs.

Although a will is not required before someone is admitted to a nursing facility, it is a good idea for everyone to make a will and keep it updated. Your attorney can help determine whether it is in the resident's best interests to have a will or a "living trust."

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