A New Twist on Advance Directives

by Joanna Smith on Aug 25, 2011

I heard a story the other day from a colleague about a situation that is occurring more frequently as the population ages, and some people are trying to manage living alone and staying in their own homes.

In this particular case, an elderly woman, who lived alone and had no living family members caring for her, was being admitted to the hospital for surgery.  At the admitting office, the hospital employee asked, as is required by federal law, if the woman had an Advance Directive (which names an agent to make healthcare decisions on her behalf if she is unable to).  The woman said she did not.  What is supposed to happen next is the hospital employee is directed to ask if the woman would like to speak to someone about filling one out.

What happened instead was the hospital employee offered to become the agent for the woman and complete the directive right then.  The woman gratefully accepted. She was in a vulnerable position, and someone offered to help her:  why would she refuse the help?

Because it is a clear violation of federal law, and is a version of elder abuse—both legal, emotional and physical.  After the woman had her surgery, her agent—the employee of the hospital– approved placement in a nursing home.  The woman stated that she wanted to return home, but the agent would not authorize it.  She visited regularly, and the woman became quite attached to her.  When a distant nephew questioned the relationship, his aunt became extremely upset and told him to “stay out of it”.


Why is this wrong?  Hospital employees may not be agents on someone’s advance directive (unless they are already related) because it is a conflict of interest, and federal law prohibits it. In addition, this is victimization of an elder who is vulnerable. In this situation, a single, elderly woman with no known support system agreed to have an unknown person assume the responsibilities of making the most fundamental healthcare decisions for her.  It also appears that this  hospital employee may have obtained control of the woman’s checkbook and financial affairs.



What can you do if you see or hear of this kind of situation?  There are several approaches.  Some people are mandated reporters—physicians and social workers, for example.  If they SUSPECT elder abuse, they need to report:  they do not need to have proof, they only need to suspect in order to report.  But other people can still report, even if they are not required to and they, also, do not need to have proof, they only need to suspect.  In your county or city, you can report, depending on local regulations, to the Adult Protective Services agency or the local police.

There is another way to address this, however, and that would be to call the Risk Management Department at the hospital.  That department is charged with reducing the hospital’s exposure to law suit, but they also can address the issue directly with an employee who is violating the law.  While Risk Management will not tell you the outcome, you can be assured that they are interested in protecting themselves from suit and will address the issue.  It’s best to report to both:  Adult Protective Services and the Hospital.