Best practices for resolving incapacity issues, including navigating the probate court process for establishing guardianships

With an aging population that continues to expand, many hospitals are struggling to address a growing problem: how to treat patients who lack mental capacity to provide informed consent to medical care.

When a patient lacks capacity to consent to his or her own care, unless the patient has a health care power of attorney, a living will or a legal guardian, a hospital must decide whether to provide medical care without first obtaining legal consent. To help address this problem, many hospitals have adopted policies that allow family members to consent to medical care on a patient’s behalf. In cases where a family member cannot be located, hospitals are usually left with no choice but to seek the appointment of a legal guardian by initiating legal proceedings with a probate court.

Across Ohio, it has become increasingly difficult to identify guardianship applicants, and even when an applicant can be identified, it can take a month or more before a guardianship can be established. The inability to quickly locate a patient’s next of kin, and challenges with establishing court-appointed guardianships, often results in discharge delays, treatment delays and reduced bed space, all of which can increase costs and lead to poorer outcomes.

In sum, patient incapacity can be complex, and many hospitals find it beneficial to receive guidance from legal counsel when confronted with these issues.