By Tippy Irwin, Executive Director
Some years ago we had a case that speaks eloquently to this issue. We received a call from ”Sophie,” the granddaughter of a resident, “Emmeline Hope.” Sophie told us that her grandmother had been kidnapped and hidden away in a facility. Doggedly determined to find her, Sophie had called all the nursing homes in the area and had located her at a nursing home in our county. The family was reeling from a series of three losses that happened in quick succession, and for a while were out of communication with their beloved grandmother,as they were each dealing in their own way with the devastating losses. Sophie was denied entry to visit her grandmother. The ombudsman got involved. What we found was that a “family friend,” had noted the family’s disarray at this time and had stepped in to help the grandmother. He emphasized to her that he was the only one who truly cared about her and how she had been abandoned by her family. Grandma, deeply grieving the loss of two sons and another close family member, was coerced into redoing her trust, naming this family friend as primary beneficiary, along with his children. She also named him as the agent on her Advance Health Care Directive. Shortly thereafter she had a heart attack after being hit on the head by a fall. By now the family friend had changed her physician of many years, to a new physician of his choosing who had no background information about his new client. Somehow, the friend persuaded the physician to place Emmeline in a nursing home on hospice, as they had found a spot on the lung which was never investigated any further. She was already severely impaired from the heart attack, so it must have seemed like an obvious choice. The primary care physician was changed yet again to the physician associated with the facility. The physician’s notes in the file documented that Emmeline was not competent to make her own healthcare or financial decisions. Several weeks had passed by at this stage, and Emmeline had been slowly recovering, in spite of the fact that she was denied any rehabilitation services because she was a hospice patient. Two of our ombudsmen went to the facility daily for a week to meet with Emmeline and to determine what she wanted and whether or not she had the capacity to make any decision on her own behalf. Emmeline was ecstatically happy to be back in touch with her close knit family, and seemed to understand the manipulation by the family friend who had gotten her to change all her documents in his favor. She expressed to our ombudsman over and over again that she wanted to change all her documents back to the way they were. In spite of the notation in the records by the physician that the resident did not have the ability to make healthcare or financial decisions, the ombudsmen determined that indeed she did have capacity, and went ahead and witnessed her execution of a new Advanced Directive for Health Care, naming Sophie and her brother as her agents. At that point Sophie took her to a nursing home in Sacramento, close to Sophie’s home, where she could visit on a daily basis. Emmeline restored her trust to how she wanted it, back to how it was before the “family friend” had taken her to a lawyer of his choosing and had her change it naming him as beneficiary.
Needless to say the case was challenged by the “Family friend” in court in Sacramento. Emmmeline, in spite of her physical frailty showed up in court in her wheelchair. The judge in the case took Emmeline into chambers and interviewed her for 45 minutes. The judge determined that Emmeline was fully capable of making her own health care decisions, and upheld the signatures on the legal documents that she had changed back to the way they were before all this had happened.
While Emmeline may well have been severely cognitively impaired right after the fall, the hit on the head, and the heart attack, by the time we were pulled into the case, she had significantly improved. Had the decision of a single physician been allowed to stand, Emmeline and her family would never have been reunited, and a criminal would have gotten away with stripping the family of all that was rightfully theirs. Determination to decide on competency to make decisions must be a medico-legal decision properly adjudicated under the law.