Law Tips: Your Nursing Home Resident Client Could Use A Good Managing Partner

What do you do to promote quality care for the person under guardianship for whom you are responsible as guardian, once that person is in the facility? We often hear that, in dealing with a demented patient, you shouldn’t try to bring them to your reality because that’s a losing battle. Instead, we’re told, be with them in their reality. To some degree the same can be said for dealing with a nursing home; knowing that the reality is that there will be care problems in a nursing home, some avoidable and some not, how do we act as guardians within that reality?

I welcome H. Kennard Bennett and Robin Bandy, ICLEF faculty participants, who have wide experience in effective advocacy on behalf of the nursing home resident client. Their guidance for those acting as guardians includes being persuasive, curious and persistent, celebrating success and finding internal as well as external allies. Another effort that Robin and Ken recommend for the best outcome for the nursing home resident is good team management. Here’s that expert advice:

Defining Roles and Responsibilities – The Team Approach
As obvious as it may be to those of us serving in the guardianship role, the role of a guardian is not always understood by others, including nursing home staff. A guardian is not a health care provider. A guardian is not a discharge planner. A guardian is not just a “yes man” or someone who just signs consent forms, etc. A guardian is defined by the National Guardianship Association’s Standards of Practice as “A person or entity appointed by a court with the authority to make some or all personal decisions on behalf of an individual the court determines lacks capacity to make such decisions.”

A common way of thinking of guardians is as the “surrogate decision-maker” responsible for exercising “informed consent” on behalf of someone who has been deemed incapable of exercising such consent themselves. This model, however, is an insufficient one when it comes to guardians of a nursing home resident. We say “informed consent” meaning that the experts – the doctors or nurse – are providing us with information upon which we are asked to say “yes” or “no” -yes to that procedure, no to that drug, etc. But in the nursing home setting, where the person under guardianship shall be living, not just convalescing, the decisions to be made are not only with regard to medical or nursing procedures. They also involve the resident’s quality of life. What foods and activities do they enjoy? What were their living habits before moving to the nursing home? Were they “night owls”? Was lunch or dinner their biggest meal of the day? Briefs or boxers?

Many of these questions are incapable of being answered by the nursing home itself. They are questions the social worker in the nursing home will want answers to, perhaps, but the social worker may not know the questions to ask. All of which is to say that the guardian and the nursing home staff need to be a team to meet the needs of the resident. The guardian relies upon the nursing home employees to provide the care and services required, but the nursing home relies upon the guardian to provide not only consent, but is many ways resident history, guidance, and direction.

As between the nursing home staff and the guardian, which team analogy makes the most sense? Is the guardian the coach? I would argue not- a coach tells the players how to do their job, how to improve their skills, etc. That’s not the role a guardian must play; a guardian cannot be expected to have the expertise to tell nursing homes how to do their job. Is the guardian the CEO? This is perhaps a better analogy in that the CEO defines the outcomes she wants from the employee team, although this analogy comes across as too top-down and too egotistical.

Maybe the best analogy is that of “managing partner,” in that the guardian is keeping a “team of equals” on track in meeting the needs of the nursing home resident. The guardian still holds the team accountable to the team goals, but recognizes and respects the individual expertise of each of the team members. As with a managing partner so it is with guardians: the power of persuasion trumps the power of commandment when it comes to achieving the team’s mutual goals.

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Ms. Bandy and Mr. Bennett served as faculty for our popular Guardianships In Indiana CLE seminar. You have several options should you wish to learn more from this program. Click Here to select from these formats: Video Replay, OnDemand, electronic document, publication or CD-ROM. Thank you to these two outstanding faculty members for their continuing contributions.

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About our Law Tips faculty participants:
Robin J. Bandy, Associate Counsel and Director of the Volunteer Advocates Program at the Center for At Risk Elders (CARE). Prior to joining CARE Robin was the Program Manager at the Fairbanks Center for Medical Ethics at IU Health. Robin completed her law degree and master’s in bioethics at Indiana University-Indianapolis. She was the founding director of the Wishard Volunteer Advocates Program and has served as an ethics consultant at both IU Health and Eskenazi hospitals.

H. Kennard Bennett, Bennett & McClammer, LLP, Indianapolis. Before starting Bennett & McClammer, Ken had his own solo practice and he was a partner in the elder law firm of Severns & Bennett, serving as its President and CEO. He remains “of counsel” to what’s now known as Severns Associates. Ken has served as the Editor of the National Academy of Elder Law Attorneys Quarterly. He is a frequent continuing education speaker on nursing home litigation and elder law topics. Ken currently serves as President of the Indiana State Guardianship Association. He also serves as the President and CEO of a new non-profit public interest law firm known as The Center for At-Risk Elders, Inc. (“CARE”).

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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