(by Sally Krall) —–

When an individual enters a long term care facility (LTCF) many things change, but one thing for sure does not change. Residents of a LTCF have the same rights granted by the United States Constitution as persons not living in a facility.

The 1987 Nursing Home Reform Act requires each nursing home to care for its residents in a manner that promotes and enhances the quality of life of each resident, ensuring dignity, choice, and self-determination. (http://ltcombudsman.org/issues/residents-rights) This law also creates the Residents’ Bill Of Rights. The rights of a LTCF resident may be restricted only when necessary to protect the resident or to protect the rights and safety of other residents.

One situation that is often brought to my attention is the resident’s freedom to make choices and the right to self-determination. Family members and staff of LTCF often mistake a Medical Power of Attorney (MPOA) as guardianship. These are two different things. A Medical Power of Attorney is a document signed by the resident (the principal) and gives an individual (the agent) named, authority to make health care decisions on behalf of the principal. Unless noted in the document otherwise, a MPOA does not go into effect until the principal’s doctor certifies that individual lacks the competence to make their own health care decisions.

Ombudsmen advocate for resident’s rights, focus on the quality of resident care and the quality of the resident’s life. We frequently receive questions from facility staff or residents concerning issues such as the resident’s right to smoke or make certain food choices that go against the wishes of their family members.

Unless adjudicated incompetent by a judge, the resident of a LTCF has the right to smoke in accordance with the facility’s smoking policies. This may not be what the family or even the person appointed as the MPOA wants, but the wishes of the resident, supersede those of others, as long as the resident is competent.

Disagreements about diet choices seem to come up in LTCF. A resident placed on any special diet: heart healthy, renal diet, low fat, low sodium; has the right to choose to eat from a non-restrictive menu. These special diets are usually prescribed by the resident’s physician and are most definitely done with consideration of the resident’s health. But the resident can still choose to eat foods not recommended. Each facility will have its own rules, and as a result a resident choosing to not follow a special diet may be required to sign a document stating they understand the health risks involved with their choices.

A Responsible Party signs a resident into a facility and may assist with gathering documentation for Medicaid eligibility. The Responsible Party may also be the emergency contact and is notified of changes in the resident’s health status or room assignment within the facility. But the Responsible Party does not have the right to infringe upon the resident’s rights.

A Medical Power of Attorney unless specifically stated in the document does not go into effect until the principal is deemed incompetent. The principal may revoke a MPOA at any time either in writing or verbally. And as always, the resident’s wishes and choices should direct the resident’s care.

I am in no way advocating for residents to smoke or make poor diet choices. What I am advocating for is the resident’s right to make their own choices and the resident’s right to self-determination. Everyone makes poor choices. A resident’s rights cannot be taken away just because they make choices that their family member or MPOA considers “poor”.

For a complete and detailed list of Residents’ Rights please see the Texas Department of Aging and Disability Services Nursing Facility Requirements for License and Medicaid Certification Handbook (http://www.dads.state.tx.us/handbooks/nfr-lmc/E/index.htm#rl19.406).

If you or someone you know lives in a Long Term Care Facility and needs assistance with a quality of life or quality of care issue please contact the Ombudsman Program at 1-800-395-5465.

Sally Krall, LBSW, Staff Ombudsman, a program with the Area Agency on Aging