- DENNIS FORDHAM
- Posted On
Estate Planning: The right to make personal care decisions
Under California law every person is presumed to be competent to make his or her own personal care decisions unless otherwise determined incompetent by a court.
Nonetheless capacity decisions are made all the time by others that affect one’s rights.
Seniors may be especially concerned about others taking away their decision making rights. So what are these personal care rights?
Unless a court order says otherwise, or in the case of a so-called 5150 situation (i.e., someone is either dangerous or gravely disabled), you have the right to make your own health care decisions, even when your agent under an advance health care directive disagrees.
Thus, so long as you communicate your wishes to the medical care providers, they will follow your instructions and not those of either your agent under an advance health care directive or family member.
This may not always turn out to be the best.
Recently, a client of mine told me that when her husband and she were in the hospital’s ER to treat her husband for a concussion, the ER doctor would only listen to her husband, when he said that he did not want a CAT scan; even though she was both his wife and his agent for health care decisions.
A day or so after, when the husband was more lucid, he was incredulous as to why his wife did not assert more authority and insist that he be given a CAT scan.
As I explained, as her husband’s agent under a health care directive, she only had secondary authority to her husband, the principal. He could dismiss her as his agent at any time.
Thus, whenever a principal communicates his or her wishes regarding health care a medical care provider will follow those instructions and will likely disregard any competing instructions given by an agent.
Next, what about the right to determine where you live?
Unless a court order says otherwise, you also have the right to decide where you live and don’t live.
All admissions to a nursing home must be voluntary, unless pursuant to a court order committing someone. That means, any person being placed can overrule their agent’s or family member’s decision to admit them.
Furthermore, once admitted, the person admitted still retains all his or her legal rights, including the right to decide personal care decisions affecting his or her person.
This includes the right to make informed decisions regarding medications, i.e., informed consent.
Legally, only a court appointed conservator exercising court authorized special powers can require someone to take antipsychotic medication against their wishes or without informed consent.
Unfortunately, the informed consent requirement is not always observed in practice. That is, difficult to manage persons – including persons suffering dementia, Alzheimer’s and senility – have been given drugs to restrain their behavior and have been physically forced by nursing home staff to submit to physical hygiene (such as bathing).
Moreover, another right is the right to control one’s visitation, telephone calls, and mail. This right applies to a conserved person unless the court orders differently.
Otherwise, as has tragically happened, a conserved person can be made isolated and become estranged from their close friends and family.
Protecting such fundamental rights and correcting abuses is the subject of proposed legislation AB 2171, The Residential Care Facility Bill of Rights, presently before the State Legislature.
Anyone seeking more information can visit http://www.canhr.org/legislation .
Dennis A. Fordham, attorney (LL.M. tax studies), is a State Bar Certified Specialist in Estate Planning, Probate and Trust Law. His office is at 870 S. Main St., Lakeport, California. Fordham can be reached by e-mail at This email address is being protected from spambots. You need JavaScript enabled to view it. or by phone at 707-263-3235. Visit his Web site at www.dennisfordhamlaw.com .