Discharge planning and placement decisions for elderly patients have received almost no legal focus and only scant scholarly analysis. Many physicians and family members make these decisions without adequate discussion with the patient and often over the patient’s objection. Just as patients have the right to consent to or refuse treatment, they also have the right to choose the living arrangements and type of care they want. This right, however, is not as tied to the singular interests of the patient as are the rights of informed consent and refusal of treatment. The legal, practical, and quality-of-life interests of family and neighbors may be compromised by a return to the patient’s home in the community or to the home of a family member.
However, the fact that a community placement may entail more risk than a residential placement in a long-term care facility does not mean that the patient must accept the latter. Patients may assume the risks of placement just as they may choose a risky treatment alternative. Many elderly persons choose to return home when caregivers are convinced that residential treatment is medically and socially preferable. Some patients even choose to return home when the possible result is death. If the patient is decisionally capable, this decision, like a refusal of medically necessary care, can be legally acceptable. A decisionally capable patient cannot be placed in a residential facility over his objection without a court order. Elderly patients have a right to be obstinate and foolish unless the rights or interests of others are clearly compromised.
Overriding a patient’s discharge preference may require petitioning the court for a general or a limited guardianship. Overriding a treatment decision can often be accomplished by an appointment of a special guardian designated for that specific purpose. The ongoing supervision of an elderly person, however, requires a guardian with sustained powers and commitment. Unfortunately, many states provide insufficient education, training, and supervision of such court-appointed guardians, who often opt for the least burdensome alternative for themselves rather than the least restrictive alternative for the patient.