Glen Burnie, MD asked in Elder Law for Maryland

Q: My father in-law is an inpatient at a hospital. He is unable to care for himself. His wife is no longer capable

Of caring for him. He refuses to take his medication. His family has refused to bring him home. But the doctor for the social service department says that "he is fine to go home and we can't be responsible for stupid mistakes that people sometimes make." Meaning that it is a stupid mistake for my father in-law to not take his medication. I was floored at this comment. Nobody has guardianship or healthcare advocacy. If nobody picks up my father in-law at discharge time, what will the hospital do?

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1 Lawyer Answer
Mark Oakley
Mark Oakley
  • Estate Planning Lawyer
  • Rockville, MD
  • Licensed in Maryland

A: What you do not state is whether your father is mentally competent to make his own decisions, from a legal standpoint. The fact that "social services" (you do not name the government department by name, so it is unclear whom, exactly, you are referencing) deems him competent to go home on his own (if that is what they determined), then that sounds like he is mentally competent and not in need of a guardian. If that is the case, then he is legally free to make his own decisions without interference of others, until and unless he is deemed mentally incompetent under the law. You cannot force a mentally competent person to take medication, so I assume that is what the hospital staff was sayng in an inartful and insensitive way. If he is not mentally competent, then any interested person can petition to become his guardian, or in the absence of such a person, Adult Protective Services may step in and petition for appointment of a guardian by the court. Guardianship requires a medical assessment by two physicians who have examined him, at least one within a very short period of time prior to the filing of the petition, concluding that he meets the legal definition of not mentally competent. His primary medical doctor who sees him most often is usually one such physician. If he has sufficient mental capacity, then perhaps the better approach is to have a conversation with him about his home care plan, living arrangements, the affordability and practicality of in-home aides (even part-time) to assist him, and the execution of a healthcare power of attorney and a general financial power of attorney to allow someone he trusts to manage his medical care, health needs and financial matters as he becomes unable to do so on his own. A person holding a healthcare power of attorney would be able to discuss his mental capacity with, and request a mental competence opinion from, his physicians, as well as request a referral to a neurologist for such an assessment. At such time as it becomes medically and physically necessary, the healthcare POA and financial POA (they can be the same person) may arrange residency in an appropriate assisted living or nursing home. These two POAs avoid the necessity of a court appointed and supervised guardian. In their absence, a guardianship proceeding is the only option when he becomes mentally incompetent.

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