What should I know about the Temporary Health Care Placement Decision Maker for an Adult Act?

Contents

• What is the Temporary Health Care Placement Decision Maker for an Adult Act?
• What are the relative’s rights and responsibilities under this law?
• What are the health care facility’s rights and responsibilities under this law?

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What is the Temporary Health Care Placement Decision Maker for an Adult Act?

This act is in place to help adults who are unable to consent to admission, discharge, or transfer from a health care facility. The act allows a family member or other loved one to make those decisions even if they don’t have an advanced directive for health care. This generally comes up when a patient is incapacitated but needs to be discharged from a hospital and admitted to a nursing home.

 

Before an adult can be discharged, admitted or transferred under this law, a physician must examine them and certify:

• The adult is unable to consent, and

• That the doctor believes a discharge and transfer is in the patient’s best interests. 

 

The patient might be transferred or admitted to a number of health care facilities, including:

• Hospitals,

• Nursing facilities,

• Personal care homes,

• Assisted living facilities,

• Rehabilitation facilities, or

• Home and community based programs.

 

The hospital cannot get consent from just any relative of the patient. The law has a list of relatives who can give consent, and the must be asked in this order:

1. The patient, if they are able to make decisions;

2. An agent named in the patient’s advance directive for health care;

3. Any guardian of the patient;

4. The patient’s spouse;

5. Any adult child;

6. Either parent;

7. Any adult brother or sister;

8. Any grandparent;

9. Any adult grandchild;

10. Any adult uncle or aunt; or

11. Any adult nephew or niece.

 

If there is no relative available, any other interested person can ask the probate court to consent.

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What are the relative’s rights and responsibilities under this law?

The relative who is chosen to give consent has a duty to make decisions based on:

• What the patient has stated they want, or if the patient’s wishes are unknown;

• What the relative believes the patient would have wanted.

 

The relative also has the authority to fill out applications for insurance or financial coverage for the patient’s care. 

 

The relative’s authority to act for the patient ends:

• Once the patient is transferred, admitted, or discharged;

• When the patient is able to make their own decisions; or

• When another relative higher on the list wants to take over responsibility.

 

The relative’s authority is limited to consenting to health care placement. The relative is not able to make other healthcare or financial decisions for the patient.

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What are the health care facility’s rights and responsibilities under this law?

Under the law, someone who works at the patient’s current health care facility must help the relative find a new facility. Generally, this is a social worker or discharge planner at the hospital helping the relative find a nursing home placement. This facility must be:

• The most appropriate for the patient, 

• Offer the least restrictive level of care, and 

• Be close to where the patient lives.

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Contents

• How can an interested person petition the court for a transfer, discharge, or admission?
• Can a patient sue if they are unhappy with the decision that was made about their health care placement?

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How can an interested person petition the court for a transfer, discharge, or admission?

If there is no relative available to give consent,  any interested person can petition the court on behalf of a patient. An “interested person” can include the health care facility where the adult is staying. 

 

The petition must include:

• The name, age, address, and county of the residence of the adult, if

• known;

• The name, address, and county of residence of the petitioner;

• The relationship of the petitioner to the adult;

• The current location of the adult;

• A physician's certification that the person is unable to consent and needs to

• be transferred, admitted or discharged;

• Information indicating that no authorized person has been located or

• wishes to accept the authorization to consent to such transfer, admission, or

• discharge;

• Name and address of the recommended alternative health care facility or

• placement; and

• A statement of the reasons for such transfer, admission, or discharge.

• An affidavit from a doctor stating:

  • The patient is unable to consent,

  • The doctor believes its in the patient’s best interest to be admitted to another type of facility, and 

  • The type of facility the patient should be moved to.

• An affidavit from the health care facility’s discharge worker or social worker saying:

  • No relative is available to give consent,

  • The recommended facility is the most appropriate and least restrictive, and

  • Other facilities were considered.

 

Once the petition is filed, a judge will review it. If all the information and affidavits are included, the judge will approve the petition. To make sure someone follows up with the patient, the judge will send a copy of the order to the Department of Health.

 

The petition must be sworn under oath in the presence of a:

• Notary public,

• Clerk of court, or 

• A judge.

 

File the petition in the probate court in the county where the patient is staying. 

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Can a patient sue if they are unhappy with the decision that was made about their health care placement?

As long as everyone involved acted in good faith, the patient does not have a civil or criminal case. This is true even if the patient does not agree with the transfer, discharge or admission decisions.

 

If someone involved (doctor, health care facility, etc.) did not follow the law or acted in bad faith, the patient may have a claim. Talk to an attorney to learn more about your rights.

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