Question: My mother, age 82, is a resident of a nursing facility where she will remain for the rest of her life due to several strokes which have debilitated her. Although she is not able to move her limbs and has trouble talking and eating, her mind is still keen and, for those of us who will take the time to be with her, she lets us know what she wants.

Due to recent deterioration of her condition and since she does not have a living will, the medical staff approached my sister and me (we are her only children and our father is deceased) about her end-of-life treatment. Mother knows that she is dying and has let us know that she does not want to be kept alive by artificial means. Since we know she can make her own decisions, we suggested that the medical staff meet with her and us, but they say that she is not competent and that we must make the decisions for her. I thought a patient had the right to decide on treatment options. What can we do?

Answer: Based upon decisions of the United States Supreme Court, your mother's "liberty interest in refusing unwanted medical treatment" is protected by the due process clause of the Fourteenth Amendment to the United States Constitution. Your mother's right to make health care decisions extends to the refusal of food and drink, either provided orally or through tube feeding.

This means that so long as your mother has sufficient capacity to express her preferences, she has the right to state her health care decisions either 1) directly to the health care provider or 2) by signing a document containing her wishes so that, should she become incapacitated, she will have appointed a trusted agent (you and/or your sister) to make sure her desires are carried out. Even if your mother does not sign a health directive and is incapacitated, as her health care surrogates under state law, you and your sister may still express her desires.

We are somewhat surprised that this important issue is being raised by the facility for the first time at this late date in light of the federal Patient Self-Determination Act which requires all medical providers which accept Medicare and Medicaid to give written information to all patients at the time admission concerning their rights under state law to make medical care decisions -- including the right to accept or refuse treatment and the right to sign advance directives.

Since your mother's mental capacity has been questioned by the facility, you may want to ask the state ombudsman to visit your mother at the facility for the purpose of having her "execute" an advance directive. If she has capacity, but can't actually sign, her "mark" on the document will suffice. Practically speaking, however, given your mother's condition, we believe that you and your sister may want to remove this burden from her by expressing her desires to the facility.

These difficult situations generally arise when an individual has not signed advance directives - that is, health care powers of attorney and/or living wills. Advance planning in these areas will avoid the family-facility confrontations which sometimes accompany end-of-life.

What do you do if the facility objects to a patient's decision? In this unlikely event, the facility may be allowed to arrange for the transfer of an individual to another institution; however, in order to do so, the facility must follow strict guidelines to protect the patient. What do you do in the unlikely event that the facility refuses to follow the patient's wishes, either direct, as expressed in an advance directive, or as stated by a surrogate? Should unwanted treatment be provided, the patient may have a legal cause of action for battery.