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Maverick, Attorney
Category: Legal
Satisfied Customers: 5749
Experience:  20 years experience as a civil trial and appellate lawyer
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I have assigned my brothers P of Atty for the last 13 years.

Customer Question

I have assigned my brothers P of Atty for the last 13 years. This situation has a twist to it. My brother was taken to a wound care center of treatment of blister on his foot. The treatment worked for while approx 3 months.
First the hospital wound not treat him without a POA, due to his Vascular Dementia/early stage Alzheimer's. I provided the necessary documents so the proceeded .
On August 25th,2016 the wound care doctor reported to that my brother has MRSA on the 393rd to. Be explained to me that it would be better to be admitted for intravenous antibiocs, because he rather be agressive on saving his toe. I agreed and convinced my brother that the aggressive approach was best, ***** ***** he would not go thru another amputation.
The admission was on the thursday evening. The hospital was made aware of my brothers mental condition and requested that I need to be aware before the test were to be done. I went visit him on Friday after dialysis, looked tired so I let him rest. I addressed the nurse about the POA, SECONFIRMED. AGAIN I EXPRESSED MY AND MY BROTHER WISHES.
I recied a call from my younger Saturday August 27th at 7am advising me that my brother was in surgery getting the toe amputated.
I waited around for the doctor a d asked who authorized the surgery since I have the POA, Claims he had no idea but either way he claims my brother was lucid, knew is name,birthday...qualided him as lucid.
So after my long story I feel that the blatenly disrespected, and ignored my LEGALLYt appointed care taker POA. TO TOP THIS OFF THEY TRANSFERRED HIM 2 DAYS LATER TO POST ACUTE CARE CENTER AGAIN I WAS NOT ADVISED.
I honestly feel that there some violation of my power of Atty for my brothers health decision, I should had been advised of the toe amputation and the transfer to out facility.
Please help
Sincerely Angela
Submitted: 1 month ago.
Category: Legal
Customer: replied 1 month ago.
I neglected to inform you that I also have his medical power of Atty due his lapses of memory. He also takes 2 different medications prescribed by his Neuro for his memory lapses.
Expert:  Maverick replied 1 month ago.

Welcome to Just Answer! My name is***** give me a few minutes to review, analyze and/or research your inquiry and I will be back.

Expert:  Maverick replied 1 month ago.

Angela, this is no doubt a tricky issue.

What needs to be addressed here is whether your brother's consent to the toe amputation and transfer was valid. Consent is not valid if the patient does not understand the meaning of his consent or if a patient has been misled. For example, the law presumes that children typically may not give consent; instead a parent or guardian must consent to medical treatment.

As you noted, competency issues may arise with those who have diminished mental capacity due to memory or other problems. However, the fact that someone suffers from a mental illness or diminished mental capacity does not mean that the individual is incompetent. Depending on the type and severity of the disability, the patient may still have the ability to understand a proposed course of treatment. For example, courts have recognized the right of hospitalized mental patients to refuse medication due to dangerous side effects under certain circumstances.

You case would be much stronger if you had been appointed your brother's guardian due to a court order determining him to be mentally incompetent. In that case only you [and not your brother also] could make treatment decisions on his behalf.

more to come...

Expert:  Maverick replied 1 month ago.

First the hospital wound not treat him without a POA, due to his Vascular Dementia/early stage Alzheimer's. I provided the necessary documents so the proceeded .

I suppose a lawyer could argue that the hospital "admitted" that only you could make health care decision for your brother [i.e that you were his guardian] by first requesting the paper work; but it is unclear whether this would really qualify as an unequivocal admission as the hospital may have been expecting to see guardianship papers instead of POA papers and that could be the reason they first refused to treat him.

I know this is not the answer you wanted to hear, but I am assuming that you are paying for a professional and honest answer.

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