10.22.09

Nursing Home Admission by Guardian

Posted in Guardianship at 8:19 am by Mark Leahy

Guardians don’t have authority to admit their incapacitated persons to nursing facilities without specific authority from the Probate and Family Court. But, what if a hospital needs to discharge a patient under guardianship to short term rehab?  The definition of “nursing facility” in the Code would seem to include rehabilitation and prevent the guardian from authorizing the admission. This could lead to hospitals having to hold patients until a court hearing can be arranged or discharging people to their home without needed rehab, neither in the best interests of the patient.

Should this be changed so that guardians would have the authority to make short term placements in nursing and rehabilitation facilities? But, if so, what is short term, 30 days, 60 days? Or, is there a guideline somewhere in the insurance or health regulations that this could be keyed to?

Shouldn’t a written notice of placement be sent to the nursing home and the appointing court?  Then, if the placement needed to become long term, the guardian would have time to file a petition to modify his or her authority.

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10.17.09

Medical Certificates - How many days in the life?

Posted in Guardianship at 10:20 am by Mark Leahy

In Massachusetts medical certificates have a life of 30 days. One must be filed with a guardianship/conservatorship petition and one must be on file at the time of hearing.  If either is stale, the case cannot go forward. As an aside, our new certificate is being touted to other states as the new gold standard.

But some say that now that the MC is so much more detailed, it’s much more difficult and/or expensive to obtain, making it near impossible to get a permanent appointment without a second doctor visit and MC.

Should the rule be changed to 60 days for the hearing, or 60 days for both filing and hearing?  How about 90 days?  Or should the strict limit of 30 be for only filing and let the court determine if another is needed at hearing? In acute care situations, the shorter limit might be appropriate as dramatic improvement could occur before hearing. But for prolonged illness, a new MC might be unnecessary.  How to know the difference - another checkbox on the certificate?

Or, would the long awaited added protections brought by the Code be diluted by changing this policy which has been in place for many years?

This is an active topic among the courts and the guardianship bar.  Opinions seem to be all over the place. If you have an opinion, please post your comments here.  We’ll monitor and report to the MUPC Implementation Committee.

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