Question: My mother has Alzheimer's disease and has been a resident of the assisted living part of a nursing home for nearly three years. During this time, the facility called me about every aspect of her care. Recently, she contracted pneumonia and, after being called, I met her in the emergency room and signed her into the hospital as an in-patient. While she was in the hospital, I went to visit her every day after work. Because of her incapacity and inability to make proper decisions about her care, I left my name and work phone number, and instructed hospital personnel to call me if any decisions had to be made about my mother's care because she was not capable of making these decisions for herself.

However, despite her condition and despite my requests, I found out (after phoning the hospital - they didn't phone me) that my mother had been discharged to the skilled care area of her nursing home and that she had signed herself out. After getting up off the floor and telling the hospital that she was not competent to make such a decision, I rushed to the nursing home to find my mother in the skilled care area. I was never informed about my mother's condition, never asked whether I wanted my mother in the skilled care area of the nursing home, never given any "going home" instructions by the hospital, never talked to a doctor, and never received any social worker's advice on how to pay for this care.

The hospital administrator told me that the hospital was within its legal rights to do what it did. Is this true? Can the hospital fail to report the condition of the patient to the family member who is in charge? Can a hospital move an incapacitated parent without notifying the family about how the patient is going to be cared for? When you sign your incompetent parent into a nursing home or hospital, do you lose your right to be informed about his or her condition? By the way, the hospital had no trouble finding me to send the bill. Even though they sent me a letter of apology, I'm still steaming and confused.

Answer: We don't blame you for being upset. First of all, a patient – or his/her authorized representative -- should be provided with a written plan of care prior to discharge from a hospital. The reason for this requirement is so that the patient will receive an appropriate continuum of appropriate. A plan of care is especially important when the patient is mentally incapacitated and can not make his/her own decisions. You should have been informed by the hospital about your mother’s pending discharge, and you should have been provided with a care plan and an explanation of the plan.

As far as payment for the skilled nursing services is concerned, so long as your mother had a three day stay in the hospital and needs skilled nursing services, Medicare should pay for up to 20 days; however, there are many variables here that space will not allow us to cover here.

Which family member should be given notice? If you are the agent under a health care power of attorney or a durable power of attorney with health care provisions, you are the appropriate person. If not, most states have adult health care consent acts which provide that if an incompetent individual has not signed a power of attorney, the person in charge will be chosen from a list of relatives based on statutory priority. If there are disputes among family members about who will make health care decisions, that issue becomes one for the courts.

For those who admit incapacitated relatives to hospitals or nursing facilities, at the time of admission, we suggest you make sure the facility understands who is in charge. Leave a copy of your power of attorney or health care power of attorney so there will be no misunderstandings down the road.

Question: My father is being moved to a nursing home facility from the hospital, but before he moves in, the administrator says I have to sign a form which says that I understand that the nursing home does not allow patients who have been private pay or Medicare patients to switch to Medicaid when their Medicare benefits run out. They said they do, however, accept Medicaid patients when they have space. Should I sign the form, and if I do, can the nursing home use it to refuse to switch my father to Medicaid next year when his money runs out?

Answer: We have received many queries like yours. The short answer

is: under federal law, what the nursing home is trying to do is

illegal. It cannot refuse to switch patients to Medicaid status if

their money runs out. The nursing home administrator should be well

acquainted with this law, so let him or her know that you also know

what the law is. And refuse to sign the form.

Jan Collins is an award-winning writer and editor. Jan Warner is a matrimonial, elder law, and tax attorney. Both are based in Columbia, South Carolina.

Please send your questions to P.O.Box 11704, Columbia, S.C. 29211 or send your questions by email to janwarner@nextsteps.net.