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My mother was in the hospital ICU for 9 days with a

Customer Question
My mother was in...

My mother was in the hospital ICU for 9 days with a ventilator. She was in progressive care for 2 days. She has difficulty speaking and could not pass a swallow test. Her and my step dad refused rehab therapy and dr discharged from hospital. I do not believe either are capable of making these health decisions. What rights do her children have to health decisions and her safety?

Lawyer's Assistant: Because family law varies from place to place, can you tell me what state this is in?

Indiana

Lawyer's Assistant: Has anything been filed or reported?

We have notified nurse to have adult protective service check on theier living arrangements have not filed anything

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

We believe she is abused mentally by stepdd because he leaves her home alone all day and takes her cell phone so she cant call for help

Submitted: 3 months ago.Category: Family Law
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Answered in 1 minute by:
1/9/2018
Family Lawyer: RobertJDFL, Lawyer replied 3 months ago
RobertJDFL
RobertJDFL, Lawyer
Category: Family Law
Satisfied Customers: 14,610
Experience: Experienced in multiple areas of the law.
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Thank you for using Just Answer. I am a licensed attorney and look forward to helping you. I'm so sorry to hear about your mother's health issues. So I can better assist you, can you tell me, is your mother -to the best of your knowledge --mentally competent? Does your step-father have a medical healthcare directive (sometimes called a Power of Attorney for Healthcare) for her?

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Customer reply replied 3 months ago
I believe she is. I'm not sure but he probably is. POA
Customer reply replied 3 months ago
wanting to know what can be done for her safety
Family Lawyer: RobertJDFL, Lawyer replied 3 months ago

Okay, thank you for your reply.

An adult child does have any legal say over the decisions of a mentally competent parent (much like you wouldn't over any other competent person). The law presumes that for better or for worse, they understand what they are doing in making decisions for themselves. Alternatively, if she was not mentally competent and your step-father is her healthcare surrogate, he would have authority to step in and make decisions concerning her healthcare for her.

That does not mean you are without recourse, just that it could be very difficult and costly, without a guaranteed outcome. You would have to petition the court for guardianship of your mother (which would override any existing POA for healthcare) and give you the right to make decisions for her.

(I have more to say, this isn't my complete answer, but don't want to keep you waiting. I am writing more now).

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Family Lawyer: RobertJDFL, Lawyer replied 3 months ago

A petition for guardianship means filing a petition with the court, notifying your mother that you are seeking guardianship, and a court hearing where you will have the burden of proving that your mother cannot make decisions for herself. Given that she was just in the hospital and a doctor thought it okay to discharge her at her request, that could be an uphill battle, as you will need medical evidence, if not testimony of a doctor, to establish her lack of capacity. A guardianship is also a complex legal matter and the use of an elder care attorney is recommended, but expect it to cost around $5,000 or so.

Now, if you have concern for her immediate safety and well-being, as it sounds like you do, calling adult protective services is a very good start. You can also petition the court for an emergency adult guardianship of your mother, which does not require a court hearing, but even if a judge is convinced by your evidence and testimony that a guardianship must be granted on an emergency basis, it can last no longer than 60 days, then a full guardianship hearing must take place.

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Family Lawyer: RobertJDFL, Lawyer replied 3 months ago

While I understand this is not what you may have wanted to hear, it would be unfair to you, and unethical of me, to tell you less than the truth.

Please let me know if I may clarify anything or provide you with additional information. Thank you.

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