Ask a Lawyer and Get Answers to Your Legal Questions
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.
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...
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.
Please Note: (1) Just Answer’s site disclaimers apply to all levels of service; (2) Most follow-up questions are answered with in the hour; however, if I am not signed on, please allow up to 24 hours; and (3) If we are done, please assign a feedback rating so Just Answer will compensate me for your question. Thank you for using Just Answer.