A question came up recently about whether a person could or could not be legally forced to go into a nursing home. A "new" federal law was cited, but I could not find one.
It goes without saying that state laws sometimes differ from one another. I have included a directory for state laws in this matter.

Here's what I have found thus far:

http://elder-law.lawyers.com/Common-Questions-Nursing-Homes.html#three

quote:

Q: Can I be forced to go into a nursing home?

A: No. Generally, if a person has not been determined by a court to be incapable of handling his or her affairs, the person cannot be forced to enter a home. However, if it is reported to a social services department that the person may be a danger to themselves then there may be an investigation into whether protective placement is necessary. A conservator or guardian may be appointed if it is then found that the person is incapable of protecting himself or herself.

Standards for Assisted Treatment:
State by State Summary
http://www.psychlaws.org/LegalResources/statechart.htm

Definition and powers of DPOA
Durable Power of Attorney
http://www.lectlaw.com/files/est06.htm

http://www.elderlawanswers.com/reliable_sources/glossar...3w#Nursinghomereform

quote:

Nursing Home Reform Law

Sometimes referred to as OBRA '87, this Federal law regulating aspects of nursing homes is contained in the Omnibus Budget Reconciliation Act of 1987. It is the most comprehensive Federal nursing home law since the passage of Medicare and Medicaid in 1965. It sets Federal standards of care, including one stipulating that nursing homes may use physical and chemical restraints only in very specific circumstances and only after other interventions have been tried. The bill also establishes certain rights for patients and requires states and the Federal government to inspect nursing homes and to enforce standards through the use of a range of sanctions designed to promote compliance without forcing the relocation of residents due to the closing of facilities.

good information.This is something I have thought so much about.Seeing the life you live, under controled conditions , I will decide my destiny.I was born free and will feel free to decide when and how I leave.There is life and their in living.I want life

these laws seem quite open to interrptation. or do i just not understand the law?

Good read MB.
OBRA '87 interesting...
In California the use of restraints is prohibited on a patient in a NH situation the furthest they can go is the use of a Geri Chair or if they are directed by the patients PCP to chemically restrain them they may do so, now the exception to this law is when the patient is in the hospital then they may restrain the patient to administer medical treatment and or keep them from wandering.
Hmmm can ya tell I know this law intimately here

Happy,

You are correct, they are very new laws and they have not yet been tested in court, so they are law, but no one knows how they will be defined, and so many in the legal profession may not even be informed regarding them.

Hap, and all, the confusion of reading law never stops. That's why 2 sides argue in front of a judge, (I am not talking about criminal law here, although it still applies) the object is to convince the judge that their interpretation is right. After a case is decided, that becomes a precedent.

Most judges give a lot of weight to another judge's decision in a similar case so the more precedents there are, the more weight to a side of the case. The J may decide a previous decision does not apply, but usually they stick together, and after many cases, some kind of clarity begins to form, a predictability as to how the law will be applied.

Then someone will take it to a higher court to have it's constitutionality questioned. Until then, what it means and how (if) it can be used is still up in the air. That is why people go to court. To argue about interpretation, and ask for enforcement. People even argue traffic tickets, sometimes with success, throwing in technicalities, and getting off. You never can be sure in a court of "law".

The newer the law, the less precedents, the less you can predict the result in any case.

quote:

they are very new laws and they have not yet been tested in court, so they are law, but no one knows how they will be defined, and so many in the legal profession may not even be informed regarding them.

These federal laws were passed in 1987 and have been well tested and accepted. Copies or links were available at nearly every site I visited!

I saw NO federal laws enacted in '06 whatsoever about this issue. What people need to realize is the entire "right to decide" hinges on competency and level of functioning! If there is no one to advocate for an incompetent person, a guardian, DPOA, Halth Care Proxy, etc., then the state becomes their guardian and makes their decisions.

Even in your mom's case, JAH, YOU were appointed her guardian and have been court-ordered to make certain interventions for her care! If you had not and had not gone to court WITH your mother, she would not still be in her house.

One thing to remember: WE ARE NOT ATTORNEYS! We are NOT intimately familiar with EVERY federal law or EVERY state or local law; nor all the individual pertinent facts of each case!! That's what elder care attorneys are paid to do!

We can argue here until the cows come home, but the entire issue hinges on the COMPETENCY of the individual. A COMPETENT person cannot be compelled, but an incompetent person most certainly CAN be compelled to make whatever accommodations and adjustments in their care that the court and social services deem necessary!

So true MB So True each and every link provided all go directly towards the competency of the individual person/patient the one thing that needs to be said also is if you are a guardian you can and will be held responsible for actions not taken to ensure safety I seem to recall a case in NY where 2 women last year ended up in Jail over something that happened to the Mother while in their care. This is no joking matter I want each of us to be aware of this fact Jail is a very real side effect of improper care to a LO.
Having my own run in with APS here made me completely aware that, if and when the time comes an adult can not place a phone call to 911 they MAY NOT live alone anymore. At least that is the law here in California.
Now that was when MB? Jan/Feb or was that March of this year here, do you recall I was a little freaked at that time! Someone threatening ME with jail time seems to git my panties in a bunch dontcha know

Just wanted to add some personal experience to this.

My father refused to voluntarily go into a NH. His health needs were reaching a critical point and I was scared for him to remain home, especially after he was put on Coumadin for heart problems. I had investigated guardianship with two separate attornies - one a regular attorney, one an elder law attorney. Both recommended against guardianship for our particular situation.

The elder law attorney gave me another option. He gave me a form that could be filled out by my father's doctor that declared my father incompetent due to (fill in the blank) health issue(s). That form, in combination with my DPOA, could be used to have my father admitted do a NH against his will. The attorney warned me that not all NHs would recognize this approach as valid, but it did work for me.

I live in Ohio and this all happened in 2001. Whether or not other states have that option, or if it's still an option even in Ohio, I don't know, but it sure helped me out. Obviously, my father's doctor also had to be willing to sign the form.

It isn't easy going through involuntary committment no matter which approach one takes, but this was a heckuva lot easier than guardianship.

Melissa,
There is much talk about elder-care reform and there are states, such as Wi where I live that have just recently enacted new laws, I beleive this thread was started in response to thread where I mistakenly wrote federal and meant state laws and was talking about my particular state. With eleder care issues coming more into the forefront with our country aging, I beleive more of these laws will be enacted in many states and there very well could be a change in federal law also. I would think it would be wise to check your particular states laws and check if any are in the works to be enacted.

quote:

The elder law attorney gave me another option.

And that's why anyone faced with this issue should consult someone "in the know" - like an eldercare attorney.

So GOOD to see you, Melissa!!

Thanks, MB! I'm glad to see you're still here - you've done a great deal to keep the Eldercare Forum a vital community.

One of the reasons I only post rarely these days is because I know that some of what I dealt with - in terms of legal issues, Medicaid, that type of thing - may well be obsolete since 2002. The rules and laws change all the time. What I posted may not be valid any more, or may only work in Ohio, but I figured if it was even remotely an option for someone in a predicament like I was, it doesn't hurt to check it out.

The nice thing about elder law attornies is they have to keep up-to-date with this stuff. I second your recommendation to check with them for any of a number of issues that may come up for a cg.