DEAR SENIOR LEGAL LINE:
My boyfriend recently had to go to the nursing home after suffering a stroke. The nursing home said I can’t visit him anymore! His daughter told the administrator of the nursing home that the family doesn’t want me to visit him. Then the administrator told me that I am banned from entering the nursing home because the family doesn’t want me there. If I do enter, he says I will be trespassing and they can call the police. I know my boyfriend wants to see me—we lived together for ten years and are very close. It is so sad that we cannot see each other, especially when he seems to be near death. What can I do to be able to see him?
In situations involving non-traditional partners, it is often difficult to establish the same rights that immediate family and spouses enjoy. However, there are some preventative measures that one should consider in order to establish these rights and avoid these unpleasant disputes.
The first document that non-traditional partners should complete is a Minnesota Health Care Directive. In the directive, you can name agents to act for you in your healthcare, and/or you can write instructions for your healthcare providers and agents to follow. You must sign either in front of a notary public or two witnesses. Although there is no mandatory form, you can find a common form through the Minnesota Board of Aging website at http://www.mnaging.org/pdf/MSS103-F.pdf.
The Health Care Directive will be used when you doctor determines that you no longer can understand treatment options or cannot communicate your wishes. Unless your wishes are outside the norm of standard medical practice, your healthcare providers must follow the instructions and/or listen to your agent(s) named in the directive. You can write instructions about your desire to grant a specific person unlimited visitation rights in nursing homes and different healthcare settings. Please also note that you can limit the powers of your agents, but if you are hesitant about an agent to the point that you want to limit their powers, perhaps that agent is not the best choice to act for you. Having your partner listed as your agent in your Health Care Directive will allow your partner to step into your shoes and make your healthcare decisions for you. If you do not share this power with your partner, it is very likely that your partner will have no way to trump the family’s wishes about your care, other than obtaining a guardianship over you. If your partner had to seek a guardianship, your partner would have to formally petition the court, which takes time and expense, and has an uncertain outcome.
The second document that non-traditional partners should have is financial power of attorney. In Minnesota, the most common form is the Statutory Short Form Power of Attorney. You can name your partner to handle your property and financial affairs. You do not give up any of your authority to act; you merely share it with your partner. If your partner acts, he/she must act according to your wishes, or if your wishes are not known, then he/she must act in your best interests. Once you sign the Statutory Power of Attorney, your partner would also have the power to act on your behalf while you are still alive and able to handle your own affairs. If it is drafted to be effective if you become incapacitated, it is a durable power of attorney. Naming your partner as your agent in your power of attorney is not an irreversible action, and you can revoke their rights to oversee your affairs at any time before death or incapacitation, by doing so in writing and delivering the revocation to your partner. When you die, your power of attorney document is automatically void.
The third document that non-traditional partners should have is a HIPAA release, so that your partner will have access to all your healthcare documents during your lifetime and after your death. HIPAA is the Health Insurance Portability and Accountability Act, which, among other things sets forth privacy standards for your medical data. You have the right to determine who will have access to your data, and to help ensure that your partner has permission to get access to your data, you can name your partner in writing in a release of information.
If these types of things are not viable options, or if in your case, it may be too late for your boyfriend to draft these documents, there still are legal rights guaranteed by federal and state law that protect a resident’s or patient’s right to visitation with the people he/she wishes to see. 42 USC 1396r(c)(3). Under Minnesota’s Healthcare Bill of Rights, your boyfriend has the right to communication privacy and the right to associate with those he wishes to associate with, subject to reasonable restrictions. Minn. Stat. § 144.651 subd. 26. This means that if he has articulated his wish to see you and has been denied, he has a valid complaint that can be reported to the nursing home for an internal grievance procedure, but also to the Office of Health Facility Complaints, the Minnesota Department of Health, or the Ombudsman for Long-Term Care. The Office of Health Facility Complaints can be reached at (800)369-7994. The Ombudsman for Long-Term Care can be reached at (800) 657-3591.
Unfortunately, if your boyfriend has become mentally incapacitated by the stroke, and a member of his family has been legally appointed to conduct his affairs, you may not be able to challenge the nursing home’s decision to stop you from seeing him.
Good luck, Rosemary, and hopefully your story will inform and inspire other non-traditional partners to take preventative measures to avoid this type of situation later in life.
This column is written by the Senior Citizens’ Law Project. It is not meant to give complete answers to individual questions. If you are 60 years of age or older and live within the Minnesota Arrowhead Region, you may contact us with questions for legal help by writing to: Senior Citizens’ Law Project, Legal Aid Service of Northeastern Minnesota, 302 Ordean Bldg., Duluth, MN 55802. Please include a phone number and return address. To view previous articles, go to: www.lasnem.org. Reprints by permission only.