What is procedure for guardianship?

  1. Do all hospitals have different procedures to file for guardianship, or is this a state wide kind of rule.

    I am seeing another legal situation unfold and was wondering how that works.

    Do nurses declare someone mentally incompetent? Do social workers? Can they, meaning nurses and social workers charge that someone is mentally making unwise choices and then get guardianship without a second opinion?

    Do they have to have second opinions, like psychiatrist to deem someone mentally incompetent to make their own decisions?

    What are the ranks you must go through in order for a hospital to file for a guardianship of somebody?

    What are the legalities of filing for a guardianship within a hospital?

    What, and when is it considered false imprisonment and what and when is it considered assault and battery?

    I am so tired, but do any of these questions make sense. I will tell the story if need be, I just thought that might bore everybody.
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  2. 14 Comments

  3. by   elkpark
    There are some minor variations from state to state, but the basics are pretty much the same wherever you go. In my experience (on a psych consultation-liaison team in a large teaching hospital -- I used to do competency evals on a regular basis), anyone can raise the question of whether someone needs a guardian, but only a judge can declare someone incompetent and appoint a guardian, following a court hearing (guardianship is a big deal!)

    Commonly, if the treatment team has concerns about a person's competency and ability to make decisions for her/himself, the attending physician orders a psychiatric consult. The psychiatrist does an evaluation, but does not declare the person incompetent -- again, only a judge can do that. The psychiatrist's findings & opinion are part of the evidence the judge considers in making her/his decision; family members may also testify at the court hearing, if appropriate, and members of the treatment team who have relevant information. If someone went to court seeking appointment of a guardian for someone without a psychiatric evaluation, the judge would probably order one before ruling on the petition.

    Competency and incompetency are legal concepts, not medical ones. Healthcare professionals, regardless of their specific discipline, cannot declare anyone incompetent or appoint guardians. They can only petition the court to rule on someone's competency and appoint a guardian if indicated.
  4. by   Jilaweez
    I was going to reply since we just had an extensive lecture over this very topic but elkpark did such a fine job already!!
  5. by   Liebchen
    What about that time period in between. For example... Lets say they (hospital employees) were saying that a person was unable to make his own decisions. The hospital employees claim to be concerned for his safety. So, on Friday afternoon at 4:30, they say they are taking him to court on Monday morning to file for guardianship. They move him to a room, take his clothes, do not give him access to call his family, who are long distance, and tell him he is not permitted to leave? Would this be false imprisonment?
  6. by   Liebchen
    I forgot to add that they also put what they call a "sitter" or a "safety coach" in the room of which he requested to leave. This person is supposed to keep the patient safe, but the person thought they were there to prevent their leaving.
  7. by   Daytonite
    Having been a nurse manager of a busy medical unit in a large metropolitan city hospital with a large number of indigent patients, this issue of incompetency and guardianship came up frequently. It is a legal matter. When we had a patient who we felt was incompetent to make decisions on their own and/or there were family members disagreeing over the medical decisions that had to be made and no advanced directives were in place, the social service people were usually contacted first. The next step was to get the Risk Management people involved. At some point there was someone, usually social services, who tried to find a family member who was willing to act as a legal guardian. They tried to keep guardianship within the family if possible. A petition for guardianship has to be filed with the local court. Only a judge can make a decision on this. When a petition is filed it is usually heard within a few days. Once someone is given legal guardianship it is restricted to the type of decisions the judge says they can make, they are the person who makes the decisions about the patient's care. If the patient doesn't have a relative, or a relative refuses to step forward to do this, the hospital or the court usually has a group of people who volunteer to do this responsibility. I forget what the legal name for this is called. One of our unit secretaries did this and was a guardian for a lady in a nursing home who had no living relatives. She had been appointed by the court to serve in this capacity after applying to do this kind of job. In effect, she was working for the court.

    This is why, people, you get a durable power of attorney for healthcare done for yourself. You never know when you might become incapacitated. I have seen some real dog and pony shows (drama) going on among the relatives of comatose patients over the years as they fight over what is going to be done for grandma or grandpa that was absolutely ridiculous. The worst were in community hospitals that weren't used to dealing with these kinds of situations. When I went to work in the large city hospital I was amazed at how fast social services got cracking on getting guardianships in place when necessary.

    False imprisonment is something totally different from guardianship. It has to do with patient rights. This is the text of Title 42, Section 482, Medicare Conditions of Participation which apply to acute hospitals on the issue of restraints. This is the federal law that applies and a hospital's policies and procedures for restraints should include this law in them:
    (e) Standard: Restraint for acute medical and surgical care. (1) The patient has the right to be free from restraints of any form that are not medically necessary or are used as a means of coercion, discipline, convenience, or retaliation by staff. The term ``restraint'' includes either a physical restraint or a drug that is being used as a restraint. A physical restraint is any manual method or physical or mechanical device, material, or equipment attached or adjacent to the patient's body that he or she cannot easily remove that restricts freedom of movement or normal access to one's body. A drug used as a restraint is a medication used to control behavior or to restrict the patient's freedom of movement and is not a standard treatment for the patient's medical or psychiatric condition.
    (2) A restraint can only be used if needed to improve the patient's well-being and less restrictive interventions have been determined to be ineffective.
    (3) The use of a restraint must be--
    (i) Selected only when other less restrictive measures have been found to be ineffective to protect the patient or others from harm;
    (ii) In accordance with the order of a physician or other licensed independent practitioner permitted by the State and hospital to order a restraint. This order must--
    (A) Never be written as a standing or on an as needed basis (that is, PRN); and
    (B) Be followed by consultation with the patient's treating
    physician, as soon as possible, if the restraint is not ordered by the patient's treating physician;
    (iii) In accordance with a written modification to the patient's
    plan of care;
    (iv) Implemented in the least restrictive manner possible;
    (v) In accordance with safe and appropriate restraining techniques; and
    (vi) Ended at the earliest possible time.
    (4) The condition of the restrained patient must be continually assessed, monitored, and reevaluated.
    (5) All staff who have direct patient contact must have ongoing education and training in the proper and safe use of restraints.
    (f) Standard: Seclusion and restraint for behavior management. (1) The patient has the right to be free from seclusion and restraints, of any form, imposed as a means of coercion, discipline, convenience, or retaliation by staff. The term ``restraint'' includes either a physical restraint or a drug that is being used as a restraint. A physical restraint is any manual method or physical or mechanical device, material, or equipment attached or adjacent to the patient's body that he or she cannot easily remove that restricts freedom of movement or normal access to one's body. A drug used as a restraint is a medication used to control behavior or to restrict the patient's freedom of movement and is not a standard treatment for the patient's medical or psychiatric condition. Seclusion is the involuntary confinement of a person in a room or an area where the person is physically prevented from leaving.
    (2) Seclusion or a restraint can only be used in emergency
    situations if needed to ensure the patient's physical safety and less restrictive interventions have been determined to be ineffective.
    (3) The use of a restraint or seclusion must be--
    (i) Selected only when less restrictive measures have been found to be ineffective to protect the patient or others from harm;
    (ii) In accordance with the order of a physician or other licensed independent practitioner permitted by the State and hospital to order seclusion or restraint. The following requirements will be superseded by existing State laws that are more restrictive:
    (A) Orders for the use of seclusion or a restraint must never be written as a standing order or on an as needed basis (that is, PRN).
    (B) The treating physician must be consulted as soon as possible, if the restraint or seclusion is not ordered by the patient's treating physician.
    (C) A physician or other licensed independent practitioner must see and evaluate the need for restraint or seclusion within 1 hour after the initiation of this intervention.
    (D) Each written order for a physical restraint or seclusion is
    limited to 4 hours for adults; 2 hours for children and adolescents ages 9 to 17; or 1 hour for patients under 9. The original order may only be renewed in accordance with these limits for up to a total of 24 hours. After the original order expires, a physician or licensed independent practitioner (if allowed under State law) must see and assess the patient before issuing a new order.
    (iii) In accordance with a written modification to the patient's
    plan of care;
    (iv) Implemented in the least restrictive manner possible;
    (v) In accordance with safe appropriate restraining techniques; and
    (vi) Ended at the earliest possible time.
    (4) A restraint and seclusion may not be used simultaneously unless the patient is--
    (i) Continually monitored face-to-face by an assigned staff member; or
    (ii) Continually monitored by staff using both video and audio
    equipment. This monitoring must be in close proximity the patient.
    (5) The condition of the patient who is in a restraint or in
    seclusion must continually be assessed, monitored, and reevaluated.
    (6) All staff who have direct patient contact must have ongoing education and training in the proper and safe use of seclusion and restraint application and techniques and alternative methods for handling behavior, symptoms, and situations that traditionally have been treated through the use of restraints or seclusion.
    (7) The hospital must report to CMS any death that occurs while a patient is restrained or in seclusion, or where it is reasonable to assume that a patient's death is a result of
    restraint or seclusion.
  8. by   Liebchen
    Thank you.


    But there still seems to be some grey areas for me.

    There were not any physical restraints used, but he was moved to a room and not permitted to leave. There was no psychiatrist evaluation. On Friday they the hospital employees were trying to discharge him. At 3:00 they were going to send him home, which was an hour and half drive, in a cab. They said they would pay for it. However, at 4:30 PM, they decided that he was now mentally unable to make decisions for himself. I am trying to figure out how they went from going to discharge at 3:00 to unable to make sound decisions on his own at 4:20.

    Then they moved him to a room and took his clothes away, so he could not leave and told him he could not leave. They then put a sitter in his room. He had just had Brain surgery on the 27th, He was weak, but I had several conversations with him and I was not seeing any confusion, but I am an untrained student and I just do what I am told.

    I am just curious as to that in between time, when they hold you there, and tell you that you cannot leave, but there is no court order yet. Can they do that legally? He was held from the 3rd to the 8th I believe before there was finally an emergency order for 72 hours. Then, on the 10 or 11 they went back for a 30 day extention.
  9. by   Daytonite
    Did you read the federal law I just posted? Yes, they can reasonably do this for a short period of time as long as the doctor was notified of what they were doing, it was for the patient's safety and other methods were tried and known to be unsuccessful.
  10. by   Liebchen
    Yes, I read it. I am just trying to understand it all.



    (B) The treating physician must be consulted as soon as possible, if the restraint or seclusion is not ordered by the patient's treating physician.

    This man was put into the room on 3rd and physician was not there to see him until charted on the 6th. Also seclusion was not ordered by physician at all but by a social worker.

    So they were in the wrong here, right?


    (C) A physician or other licensed independent practitioner must see and evaluate the need for restraint or seclusion within 1 hour after the initiation of this intervention.

    This did not happen either.




    (D) Each written order for a physical restraint or seclusion is
    limited to 4 hours for adults; 2 hours for children and adolescents ages 9 to 17; or 1 hour for patients under 9. The original order may only be renewed in accordance with these limits for up to a total of 24 hours. After the original order expires, a physician or licensed independent practitioner (if allowed under State law) must see and assess the patient before issuing a new order.


    Again, doctor did no eval until the 6th but only found him "physically unable to care for himself at this time"

    Couldn't he have been offered home health care?


    Thank you for your time, I appreciate your help.
  11. by   Daytonite
    You know what? Don't get involved in this. The staff knew the patient and should have known what they were doing. You don't know that they didn't have conversations with the doctor prior to this. Elopement problems come up and the issue of the patient's safety as well as what resources the staff has have to be considered. My guess is that you don't know the whole story.
  12. by   Liebchen
    I agree, I do not know all, nor do I want to be involved. I just want to understand the legalities, so I never make a mistake with a patient in the future.

    There seems to be a lot of legal issues involved in nursing, and that is the part that I want to understand.
  13. by   Daytonite
    what you must understand is that when something like this is happening with a patient it is a major issue. the staff nurses should not be dealing with it and making decisions about what to do all by themselves. the nursing manager or house supervisor should be called immediately and involved because there are facility policy and procedure issues that must be addressed and followed to protect the facility as well as the patient. this is the most important thing you need to know. as a hospital nurse you are never alone. you have managers and supervisors around to collaborate with. that is part of their job. a situation like you are describing is way out of a staff nurses control and requires assistance and guidance from the bosses.
  14. by   Liebchen
    All I can say is I hope I never get involved in a situation like this. It makes me really nervous. This is the second time within just a couple of quarters that issues like this have happened with one of the patients I am working with.

    All this legal stuff is very scary. I know I read about it in my book, and we get the lectures, but it seems like some of this stuff is just lightly gone over and it gives a false sense that it is not reality, when in fact, it appears to happen more frequently then I care to admit.

    Perhaps it is just the small town hospital that we are in and there is a lot more of the relaxed rules or I am not sure the term I am looking for, but things like this really disturb me. It has been good learning experience, but sometimes nurses do things out of the goodness of their heart , trying to do the best thing for the patient and it turns out to be the wrong thing. This is the part of nursing that really scares me.

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