Q: What if the victim of nursing home neglect is alive and there is a question
about whether they are competent?
There’s competency and capacity.
The ethical rules say that you should talk to your client and reach them wherever they
are, meaning that you need to communicate at the level that your client can understand.
If your client has some level of understanding even if it’s somewhat superficial, you need
to include them in the discussion of what’s going on with their case.
If their health care power of attorney and financial power of attorney have been invoked,
you can turn to that person to make decisions in the case, but they are still obligated to
effectuate the goals and desires of the ward. They are required to act as if the person
who is the victim of nursing home neglect was speaking.
If a person is completely incapacitated then yes, you can substitute the person with
power of attorney. They can substitute their judgment for that person, but if they still
have desires and wants, those need to try to be addressed and incorporated into any
decision by the power of attorney. It’s the lawyer’s job to make sure that if the person is able
to participate in the discussion then you do so at a level they can understand and to
effectuate whatever they can describe to you as their goals.
If loved ones disagree about whether or not an elderly person has the
mental competence to represent themselves or to work with you, a nursing
home neglect attorney, what happens?
In order for a health care financial power attorney to be activated, generally speaking,
there needs to be a sign off by a physician that this person now needs the power of an
attorney to step in and manage affairs for them. That’s often the demarcation between
where the caregivers, family members usually, step in and start making decisions for
that person.
I have never seen a situation where there is a conflict on the process. Sadly, in many of
these cases, the neglect results in the significant harm to the individual such that, the
victim can go from being competent and capacitated to incompetent and incapacitated
due to the neglect.
