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How do we “prove” to the hospital that we need to be the ones making the decisions, thus enforcing the POA (a copy of which they

Canton, MI |

My father in law is in the hospital with congestive heart failure. He is almost 82 years old and has the beginnings of dementia. We have a durable POA for him, but to the hospital staff he appears to be very alert and able to make his own decisions. What they don’t realize is that he may make a decision, but 10 minutes later will not remember making it. He has been there since Friday, yet told the doctor he had already been there a week. When my husband went to visit the yesterday he found out that they had replaced his defibrillator and no one even notified any of us! They told us that Dad said he would call us. However, no one followed up to make sure he had (he didn’t even have a phone in his room, nor his cell phone so how was he to call anyone?) so he never called any of us. In Dad’s hearing, they said they had expected that someone would have been there for the procedure, and Dad said he thought so, too. My husband replied, “Well we would have been if we knew it was happening!” We are completely appalled that this could have happened! This is only one example of what has gone on – at the hospital, and at home -- and it is obvious that Dad cannot make his own decisions. My question is this:

How do we “prove” to the hospital that we need to be the ones making the decisions, thus enforcing the POA (a copy of which they have on hand!)?

Attorney Answers 4


  1. If the medical staff is not responding to you-meet with hospital administrator.
    If that fails have your attorney get involved and also the father in law's personal
    doctor who would be aware of his mental condition.

    The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.


  2. You probably don't. If the patient has capacity to make medical decisions, the hospital is required by law to deal with the patient rather than family except to the extent the patient tells the staff to deal with family. An elder law attorney probably could help sort things out but apparently you aren't getting far with hospital staff on your own. Maybe a meeting with the hospital social worker would help.

    Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.

    Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.


  3. Attorneys Pinnen and Friedman have given you good, practical advice, but there may also be an issue with the POA itself. Is it effective immediately or is it "springing" meaning it is not effective until it is determined that Dad cannot make a decision himself. Even if it is effective immediately, if Dad can still make a decision his will overrides the healthcare agent/attorney-in-fact. The problem might be as simple as their wanting to see a HIPAA release. You should contact an elder law attorney to look at your documents.


  4. Do you have any records from his regular doctor or other medical records that note dementia.
    Also if it is as you say that your father-in-law has no real short term memory it should have been observed by hospital staff and noted by either a nurse or doctor. As an aside I wonder whether an assessment for dementia be routine for persons past a certain age. Professionals should be able to figure this out and would know that his “alertness” is a cover for his cognitive loss. It may have been negligent by the hospital not to have assessed your Father in Law’s mental status all things considered/
    Hope this helps

    I am only admitted to the MI bar therefore this is only general advice it is highly recommended to contact an attorney in your area for definitive guidance. Any advice given does not create an attorney-client relationship.

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