• Matthew A. Jirkovsky

What if I don't want to go to a nursing home?

Updated: Sep 2

When we can no longer take care of ourselves, a skilled nursing facility is often the best possible choice for long-term care. However, some people would do whatever it takes to avoid being in a nursing home.

As long as you are of sound mind, you can and should make your own medical decisions. These decisions include whether you wish to enter or be discharged from a nursing home.

However, if someone is incapacitated, then they are simply not able to make medical decisions. As such, it might fall on others to decide whether care at a nursing home is in the incapacitated person's best interest.

"What does it mean to be incapacitated?"

The Texas Estates Code provides the following statutory definitions:

Sec. 1001.003.  REFERENCES IN LAW MEANING INCAPACITATED PERSON.  In this code or any other law, a reference to any of the following means an incapacitated person:
(1)  a person who is mentally, physically, or legally incompetent;
(2)  a person who is judicially declared incompetent;
(3)  an incompetent or an incompetent person;
(4)  a person of unsound mind; or
(5)  a habitual drunkard.
Sec. 1002.017.  INCAPACITATED PERSON.  "Incapacitated person" means:
(1)  a minor;
(2)  an adult who, because of a physical or mental condition, is substantially unable to:
    (A)  provide food, clothing, or shelter for himself or herself;
    (B)  care for the person's own physical health; or
    (C)  manage the person's own financial affairs; or
(3)  a person who must have a guardian appointed for the person to receive funds due the person from a governmental source.

In short, an incapacitated person is someone who cannot manage their own needs, health, or affairs because of a physical or mental condition.

"So what happens if I'm incapacitated?"

Well, there are several considerations. Even if you are incapacitated, there must be something granting another person the right to make decisions on your behalf. If you do not have a directive to physicians, a medical power of attorney, or a guardianship, then the default provisions under Texas law control.

The law governing medical consent is found in the Texas Heath and Safety Code in what is known as the "Consent to Medical Treatment Act."

(a)  If an adult patient of a home and community support services agency or in a hospital or nursing home, or an adult inmate of a county or municipal jail, is comatose, incapacitated, or otherwise mentally or physically incapable of communication, an adult surrogate from the following list, in order of priority, who has decision-making capacity, is available after a reasonably diligent inquiry, and is willing to consent to medical treatment on behalf of the patient may consent to medical treatment on behalf of the patient:
    (1)  the patient's spouse;
    (2)  an adult child of the patient who has the waiver and consent of all other qualified adult children of the patient to act as the sole decision-maker;
    (3)  a majority of the patient's reasonably available adult children;
    (4)  the patient's parents; or
    (5)  the individual clearly identified to act for the patient by the patient before the patient became incapacitated, the patient's nearest living relative, or a member of the clergy.
(b)  Any dispute as to the right of a party to act as a surrogate decision-maker may be resolved only by a court of record having jurisdiction of proceedings under Title 3, Estates Code.
(c)  Any medical treatment consented to under Subsection (a) must be based on knowledge of what the patient would desire, if known.
[sections (d)-(f) omitted]

If you are incapacitated and do not have an advanced directive or medical power of attorney, then you go by the order of the above list. Essentially, your spouse, then adult child who has waiver and consent, then majority of reasonably available adult children, and so forth.

However, and most importantly, medical decisions "must be based on knowledge of what the patient would desire, if known."

"How do I make my desires known?"

The simplest way to make something known is to tell your family, physicians, and friends your wishes and to encourage them to act on your behalf.

"But, what if...?"

Of course, it might not be enough to simply make your wishes known. Your wishes could be forgotten or ignored. Therefore, you may want to take extra steps in documenting your wishes. You may also wish to incentivize compliance and discourage non-compliance.

An attorney should be able to assist you in these efforts with the use of these four documents:

  1. Advanced Directive (or a Living Will)

  2. Medical Power of Attorney

  3. Designation/Declaration of Guardian

  4. Last Will and Testament

Advanced Directive:

An advanced directive is a document that expressly states your wishes in dealing with end-of-life decisions. However, you may also state that, as long as you have assets to support yourself, you do not wish to be placed in a nursing home.

These documents should be given to your family members and your primary care physician. You may also wish to store a copy in your phone or in your vehicle for easy access in emergency situations.

Medical Power of Attorney:

A medical power of attorney creates a legal relationship between the principal and agent to act. A medical power of attorney may (and sometimes should) contain your wishes. You may wish that your medical power of attorney include your wishes regarding nursing home placement.

If an agent goes against your wishes, they may subject themselves to liability.

Declaration of Guardian:

A guardianship is a legal proceeding. If instituted, a judge with probate jurisdiction will hear the matter. However, a 'Declaration of Guardian in Advance of Need' is a legal document which the judge should consider.

Though, people have the right to change their mind. Maybe years have passed since you executed that document. Under Texas law, "the court shall make a reasonable effort to consider the incapacitated person's preference of the person to be appointed guardian and...shall give due consideration to the preference indicated by the incapacitated person, regardless of whether the person has designated by declaration a guardian before the need arises..." Tex. Estates Code § 1104.002.

For better or worse, the incapacitated person's preference must be considered. How much weight will be given to the preference would be determined by a judge.

Last Will and Testament:

Your Last Will and Testament is an instrument that directs how you would like your property to be distributed when you pass away. If you are concerned that your beneficiaries will put you in a nursing home against your wishes, a Will could provide a financial incentive to ensure you are taken care of until you die. However, tools such as these must be used cautiously, as some provisions may needlessly invite in a will contest.

Your estate planning documents should reflect your wishes. An estate planning attorney is in a great position to advise you of your rights and to ensure these documents reflect your wishes.

***This should not be taken as legal advice nor does the information contained create an attorney-client relationship. The above is general information. I am a Texas attorney licensed to practice Texas law. If you reside in another state or move after executing such documents, other laws may apply. You should consult an attorney for any specific estate planning questions.***

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