Lesson 5: Common Issues in Ombudsman Work This lesson provides basic understanding of the importance and requirements for consent and capacity and identifies the legal representatives such as guardians and power of attorney.

Overview: This module explains the common issues that Ombudsman will face in the advocacy work they perform for residents.

Learning Objectives: At the conclusion of this module, participants will be able to:

  • Understand the importance and requirements for consent and capacity;
  • Identify the legal representatives such as guardians, power of attorney, etc.;
  • Understand discharge rights and responsibilities.

Duration: 1 hours (approximate)

Residents of long-term care facilities such as nursing homes, assisted living facilities and adult-family care homes, are of varying ages and backgrounds. Through your work as an ombudsman, you will probably find that it is easier to communicate with some residents than others; however, an ombudsman's most important role is to visit with all residents and provide information and services to them. Communication is critical. Depending on a resident's age and/or disability, this may require you to communicate in a different way and notice certain non-verbal communication cues of the resident.

What to do with concerns

  • If a resident identifies a concern, ask other residents about it.
  • If the ombudsman observes a concern, ask residents, staff, or family about it.
  • Encourage residents to advocate for themselves. Provide them with solutions.
  • With resident consent, attempt to fix the problem immediately (document consent).
  • If it is not possible to resolve the concern immediately, consult with the DOM about a follow-up visit or opening a complaint.

What to do with concerns: Resident Consent

  • Consent from the resident is required before addressing a concern on their behalf.
  • Prior to identifying the resident to a facility staff completion of a consent form is required.
  • Contact your DOM if the creation of a case is needed to address the concern(s).

Confidentiality & Consent

Confidentiality - Non-disclosure of confidential information concerning a long-term care resident or other person.

Consent -  Prior verbal or written permission to disclose confidential information given by the resident, resident’s legal representative, or the State Ombudsman – in this order of priority.

  • Confidentiality and consent are critical to successful advocacy and most importantly, for the safety and security of residents we represent.
  • In order to review resident records or to communicate resident issues to a third party, consent must be obtained from the resident, the resident’s legal representative, or the State Ombudsman.
  • When conducting an administrative assessment or visitation, document that you have obtained consent to review records on the assessment/visitation form. If a resident or other individual would like to open a complaint, you will need to complete the Consent Form.
  • Residents who have a legal representative with decision-making power retain their ability to participate in their own care and to exercise their rights.
  • Section 712 of the Older Americans Act; Chapter 400, Parts I, Florida Statutes; and chapter 58L, Florida Administrative Code, govern an ombudsman’s access to residents and their confidential information. Any deviation from these laws and regulations conflicts with the Long-Term Care Ombudsman Program’s primary focus to protect and promote residents rights; subjects the program to potential legal liability; and provides cause for an ombudsman's dismissal.
  • Under the laws listed above, complaint records and residents' personal health information are confidential. An ombudsman may not disclose this information without the appropriate consent from the resident's legal representative. One of your most important duties as an ombudsman is to safeguard and ensure the privacy of privileged resident communications.
  • During an administrative assessment or complaint investigation, it may be necessary to review resident records. Additionally, a resident or legal representative may seek your help to access and review his or her records. In order to review resident records or to communicate resident issues to a third party, consent must be obtained from the resident, the resident’s legal representative, or the State Ombudsman.
Consent Release Information Form

Capacity

  • Legal capacity for adults is always presumed and cannot be overcome except through a court proceeding where the resident is determined to lack capacity. If the resident has legal capacity, his or her wishes ought to prevail.
  • Decision-making capacity describes an individual’s ability to make an informed decision. It is a clinical judgment and does not have a legal meaning. Therefore, decision-making capacity is different from legal capacity. As an ombudsman, you need to determine a resident’s decision-making capacity to know whether the resident may consent to an investigation and/or consent to the review of records. Consider these factors:
  1. Does the resident understand the facts?
  2. Is the resident expressing a free choice?
  3. Does the resident understand the risks and benefits of the act?

Capacity Assessment

Considerations for a capacity assessment include:

  • Need for professional assessment
  • Means to enhance capacity
  • Values
  • Temporary or mitigating factors
  • Severity, reversibility of risks

Judge will make decision based on evidence:

  • Capacity is not global, but task and situation-specific; or
  • Not of advanced age; nor eccentricity

Hearing the VOICE of Individuals with Diminished Capacity: Not About Me Without Me

  • What is triggering the issue; will guardianship help?
  • Is there really lack of capacity?
  • Are there other options?
  • Can order be limited?
  • Can person be engaged in decision-making?
  • Use person’s values in decision-making.
  • Consider modification or restoration.

Decision-Making Capacity - Understanding Capacity

Capacity is the ability to make and communicate an informed choice. There is no simple test for capacity. Often, understanding the person’s personal values, preferences, or goals can assist in understanding their capacity to make decisions.

Capacity is issue-specific, a spectrum, and transient. The first question is: “capacity to decide what?” Different types of decisions require varying levels of memory and distinct cognitive skills. The memory needed depends on how relevant past information is to the choice at hand. For example, very little memory is needed to decide what to wear or eat today. Different decisions require different cognitive skills, such as calculation, comparison, or organizing data.

Capacity is a spectrum. The ability to understand and make choices is not an on-off function. Capacity varies in subtle degrees, from no or very low levels of understanding, to the ability to understand and make decisions on very sophisticated and complex issues. Capacity is affected by health, pain, medication, illness, or injury. Capacity can be developed by learning and experience, and it can decrease with illness or injury. As these factors change, capacity can increase, decease, and return.

Decision-making capacity applies to all areas, including health, legal, financial, daily life, visitors, etc. Regardless of capacity, residents make decisions every day about how they want to spend their time. For example, a resident may not know what year it is, but may be able to communicate whether they want a specific family member or friend to visit them and what activities and food they prefer. Or a resident may not be able to manage their finances but can determine who they want to manage their affairs.

Decision-making capacity is not a one-time determination; rather it is on a spectrum and can change from hour to hour or day to day. Like someone coming out of anesthesia or experiencing mind-altering effects of some medication, a resident may have decision-making capacity in some areas of their life, but not others.

The goal of the Ombudsman program is to focus on the resident and their wishes even if the resident is not able to make all their decisions. For example, a resident may determine their daily routine, go out and visit with friends, or spend “pocket money,” but leave major financial and complex medical decisions up to an individual acting as their representative (e.g., the agent on a Durable Power of Attorney). Communicate with residents and assume they can make their own decisions. The next section will discuss third-party decision makers (also known as resident representatives) and documentation to review in order to determine if a resident has an assigned decision-maker and which decisions they can make on behalf of a resident.

When Decision-Making Capacity is Unclear

As resident advocates, it is a core program responsibility to empower residents and encourage others to realize the extent of the resident’s decision-making abilities. When you are unsure of a resident’s decision-making capacity, some questions to consider include:

  • Does the resident understand the information?
  • Can the resident relate the information to their situation?
  • Does the resident understand the possible outcomes of their decision?
  • Can the resident retain the information long enough to make a decision?
  • Can the resident communicate their decision in some way?

If the resident’s ability to make decisions is still not clear, or the status of the resident’s capacity is uncertain, you may consider the following:

  • Ask the resident for permission to speak with their representative (i.e., decision-maker)
  • Follow state program policies and procedures for working with residents when capacity is unclear
  • Consult your supervisor for guidance

To empower residents to exercise their right to choose and participate in their care (to the greatest extent possible), ensure that:

  • Information presented to the resident is in a language and manner in which the resident understands
  • Choices and outcomes are discussed fairly and evenly and without other people influencing the resident
  • The resident is given the opportunity to talk to anyone they rely upon to make important decisions
  • The resident is given enough time to consider their options

The Ombudsman program follows the direction of the resident. However, there are residents who lack the ability to communicate their wishes, needs, or preferences. Then residents who lack the ability to communicate their wishes, needs, or preferences. Then whose direction does the program follow? It depends. Some residents have chosen a decision maker, and some have been assigned a decision maker by the courts. Other residents rely upon someone who helps them make medical and financial decisions. In this section, we will explore the different types of decision makers and their authority to make decisions with or on behalf of residents.

There are two types of decision makers. Those that are assigned by the resident and those that are assigned for the resident. Decision makers may only act within the guidelines granted by or for the resident.

Decision Makers Assigned by the Resident

Power of Attorney (POA) - A power of attorney is a legal document in which a person appoints another individual(s) to be their decision maker if/when they are no longer able to do so or earlier in some situations.

Power of Attorney Facts

  • “Power of attorney” is the document
  • “Principal” is the person appointing the decision maker (agent).
  • “Agent” is the person who is appointed by the principal.
  • Agents are required to act with the highest degree of good faith,
  • An agent’s authority can be revoked by the principal.

There are different types of POAs. For example, a durable power of attorney comes into effect as soon as the document is signed. A springing power of attorney “springs” into effect if the principal becomes unable to communicate informed consent. There are POAs specific to health care decisions and some that are specific to finances and property. Every state has their own specific power of attorney terminology, forms, and laws.

Power of Attorney: Why is this important information for the LTCOP? For a representative to take direction from an agent under a power of attorney, the type of POA and the powers, or authority, granted to the agent must be identified. It is necessary for the Ombudsman program to obtain or review the POA to determine the extent of the authority granted. Learn more about POAs here.

What happens if the Power of Attorney was created under the laws of another state? If the power of attorney was properly executed under the other state’s laws, then it may be used in Florida, but its use will be subject to Florida’s power of attorney act and other state laws. The agent may only act as authorized by Florida law and the terms of the power of attorney. There are additional requirements for real estate transactions in Florida, and if the power of attorney does not comply with those requirements, its use may be limited to banking and other non-real estate transactions. The third person may also request an opinion of counsel that the power of attorney was properly executed in accordance with the laws of the other state.

Decision Makers Assigned for the Resident

Guardianship and Conservatorship - The definitions of guardianship and conservatorship vary from state to state. In most states, when a guardian or conservator is appointed, the court removes some or all the individual’s rights and deems the individual incapable of administering their own affairs. Those affairs may be financial, personal, day-to-day, or other. Guardianships and conservatorships may be limited in scope and in length of time.

Some guardians or conservators are family or friends of residents who know their values and goals, and others are court-appointed professionals who do not know or may have never met the resident.

The Ombudsman program advocates that the resident choose who their decision maker is and what authority they are giving to the person, as opposed to having the court make these decisions. Because guardianships and conservatorships remove individuals’ rights, they should be considered as a last resort.

Guardianship & Power of Attorney

A guardianship is a legal proceeding in the circuit courts of Florida in which a guardian is appointed to exercise the legal rights of a person lacking capacity.

What is Adult Guardianship?

A relationship created by state law in which the court gives one person or entity (guardian) duty and power to make personal and/or property decisions for another person upon finding that the adult lacks capacity to make decisions for themself.

Who is Under Guardianship?

  • Elders with dementia and/or chronic cognitive impairments

Adults with:

  • Intellectual disabilities
  • Mental illness
  • Head injuries
  • Substance abuse
  • Dual or multiple conditions
  • Changing demographics
  • Lack of data

Who Are the Guardians?

  • Family members; friends
  • Professional guardians
  • Private non-profit and for-profit agencies
  • Lawyers
  • Banks
  • Public guardian “last resort”
  • Volunteers

Family vs Professional Guardians

Family guardians

  • More familiar with person’s values, preferences, needs, history.
  • Unfamiliar with role, expectations, court processes
  • Need support in role.
  • May be beset by family conflict, stress, overload.

Professional guardians

  • Less knowledgeable about person/values/background.
  • More familiar with community resources, courts, guardianship process, forms, expectations.
  • May have high caseload.
  • May have more liability concerns.

Residents with a Legal Representative

  • Residents who have a legal representative with decision-making power retain their ability to participate in their own care and to exercise their rights. For example, when a resident has appointed a power of attorney to make decisions on their behalf, the resident still retains the ability to make his or her own decisions.
  • A health care proxy, a health care surrogate, or a durable power of attorney for health care does not make any health care decisions until a physician finds the resident lacks the capacity to provide informed consent to make health care decisions. The physician then notifies the health care decision-maker that he or she can begin making decisions.
  • The health care decision-maker must make the decision the resident would have made, and may only make a decision in the resident’s best interest when the decision-maker cannot determine what the resident would have chosen.

Legal Representative

  • When the resident does not have a legal representative; the legal representative is unavailable; the legal representative does not have the authority to consent to a complaint investigation or permit you to review records; or you have reasonable cause to believe that the legal representative is not acting in the resident's best interest, State Ombudsmen Consent may be provided.
  • To obtain State Ombudsman Consent, you, along with your district manager, will need to complete the State Ombudsman Consent Form and submit it to the State Ombudsman.

Residents with a Guardian

  • Even residents who have been adjudicated incapacitated and to whom a guardian has been appointed retain some rights. These residents need to have their desires and preferences considered even if the guardian has the legal responsibility over that decision. When you have questions about a legal representative’s authority, you should contact your district manager who will contact the legal advocate for guidance. Sometimes, guardians or family members with a power of attorney ignore the resident’s decision-making rights.

Role of a Resident Representative The LTCOP Rule defines “resident representative” as “an individual chosen by the resident to act on their behalf, or a person authorized by federal or state law (e.g., agent under a Power of Attorney, representative payee, and other fiduciaries) to act on behalf of a resident in order to support the resident in decision-making; access medical, social, or other personal information of the resident; manage financial matters; or receive notifications; legal representative (as used in Section 712 of the Act), or a court-appointed guardian or conservator of a resident.” When working with or on behalf of a resident, there are times when the Ombudsman program takes direction from the resident’s representative.

Once the LTCOP has determined the resident is not able to communicate informed consent and before the LTCOP takes direction from someone other than the resident, consider the following questions:

  • Does the resident have an advance planning directive? If so, what kind of directive?
  • Does the resident have a supported decision maker?
  • Does the resident have a guardian or conservator?
  • Is there evidence of the resident representative’s authority?

When it comes to investigating complaints, the LTCOP Rule is clear, requiring the Ombudsman program to determine and verify the authority of a decision maker. The Rule states that the Ombudsman program:

“…shall ascertain the extent of the authority that has been granted to the resident representative under court order (in the case of a guardian or conservator), by power of attorney or other document by which the resident has granted authority to the representative, or under other applicable State or Federal law.”

In other words, the Ombudsman program reviews the relevant documentation to determine in what circumstances they are to follow the direction of the resident representative. The resident representative can only act within the scope of the authority granted. For example, a daughter may say that she has power of attorney to make health care decisions. The Ombudsman program must ask for proof and verify the accuracy and details of decision-making authority. This may also require the Ombudsman program to consult with the program’s legal counsel if there are questions or concerns about the form.

Empowerment

Empowerment is a primary role of the Long-Term Care Ombudsman program in which representatives provide the tools (e.g., information about residents’ rights, facility responsibilities), encouragement, and assistance to promote resident self-advocacy. Empowering residents helps them to become stronger and more confident. In an ideal world, when a resident has a concern, they feel assured to approach staff or others for help. However, there are factors that may affect a resident’s sense of empowerment. The Ombudsman program was created to help restore the balance of power between residents and staff, as well as between residents and their family members. The LTCOP ensures residents have someone on their side who helps empower them and, if necessary, be their advocate.

Barriers to Empowerment

Barriers that may influence a resident’s sense of empowerment are numerous. Residents may...

  • Feel hopeless
  • Experience physical, emotional, psychological, social, and/or mental challenges that make it difficult to voice concerns
  • Accept ongoing rights violations as a regular part of living in a nursing facility
  • Express not wanting to “rock the boat
  • Fear getting someone in trouble
  • Feel isolated
  • Not want to be labeled as “a troublemaker” or “difficult”
  • Experience side-effects of medication that interfere with a resident’s ability to voice concerns
  • Feel as though complaining won’t help
  • Not have been educated about their rights or how to assert their rights
  • Be treated differently for complaining
  • Fear retaliation

Staff may...

  • Run resident council meetings resulting in residents not speaking out about concerns
  • Not have been trained on residents’ rights
  • Be ambivalent or negative when responding to residents
  • Ignore residents completely

Fear of Retaliation

Retaliation is one of the most common reasons expressed by residents for not seeking resolution to their concern. It may be real or perceived, but in either situation, it is frightening to residents. When instances of retaliation occur, they can range from subtle to obvious.

Subtle instances of retaliation include but are not limited to:

  • Call lights not answered or are delayed in being answered
  • Staff ignoring resident requests for help
  • Nurses withholding pain medication or late when distributing medication

Obvious instances of retaliation include but are not limited to:

  • Rough care
  • Abusive treatment
  • Eviction or attempted eviction
  • Withholding food and water

Partnering with Residents for Self-Advocacy

Representatives all have one thing in common: they want to help residents. Often the first thought that comes to mind is to take action for them, but that is not empowering. The Ombudsmen program plays an important role in helping people restore their own sense of self and regain their personal power and voice. Residents who have always found it easy to speak up may merely need to be pointed in the right direction and be given a little assurance that they are within their rights. Others may need a lot more encouragement; they may need you to go for them or with them.

The first step in this process of empowering residents is simply to have genuine, meaningful connection with residents, to get to know them as individuals. Start by listening to the resident’s concerns, their ideas about resolving their concerns, and the actions they have already taken to address the problem. Listening to the resident shows them that their thoughts and feelings are important.

When talking to a resident about their concerns, suggest the resident meet with the staff person whom you both have identified as the person most likely to help resolve the problem. When you make this suggestion, it may be helpful to offer to attend the meeting with the resident. The Ombudsman program’s presence may increase the resident’s confidence that their concern will be heard and resolved.

If you attend a meeting with the resident and the staff member, make sure you and the resident have a clear understanding of what will be discussed and who will take the lead in the discussion. Always go with the resident’s preference. Talk to the resident about their desired outcome of the discussion so you understand their goal of the meeting. Remember you are there to promote resident empowerment and advocate for resident rights, not to bring the resident in line with the facility’s preferences.

Encourage family members and friends of residents to speak out when they have concerns. Often, the Ombudsman program works with the resident representative when the resident is unable to communicate informed consent. When working with the resident representative, it is equally important to use empowerment strategies as a tool to resolve concerns.

Discharge Rights & Responsibilities - Nursing Homes

Residents must remain in the nursing facility unless a transfer or discharge is:

  • Necessary to meet the resident’s welfare;
  • Appropriate because the resident’s health has improved and she/he no longer requires nursing home care;
  • Needed to protect the health and safety of other residents or staff; or
  • Required because the resident has failed, after reasonable notice, to pay the facility charge for an item or service provided at the resident’s request.
  • Residents must receive 30-days' notice of transfer or discharge including the reason; effective date; location to which the resident is transferred or discharged; the right to appeal; and the name, address, and telephone number of the state long-term care ombudsman.
  • Nursing homes are charged with providing safe transfer or discharge through sufficient preparation.

Resident transfer or discharge; requirements and procedures; hearings 400.0255, F.S.

Resident Discharge - Assisted Living Facilities

Section 429.28(1)(k), Florida Statutes, states an assisted living facility must provide:

A 45 days’ notice of relocation or termination of residency from the facility unless for medical reasons or the resident engages in a pattern of conduct that is harmful or offensive to other residents. For medical reasons, the resident must be evaluated by a physician to require an emergency relocation to a facility providing a more skilled level of care. Reasons for relocation must be set forth in writing. In order for a facility to terminate the residency of an individual without notice as provided herein, the facility shall show good cause in a court of competent jurisdiction.

Rule 59A-36.006(5), Florida Administrative Code, states as follows:

DISCHARGE: If the resident no longer meets the criteria for continued residency, or the facility is unable to meet the resident’s needs as determined by the facility administrator or health care provider, the resident must be discharged in accordance with section 429.28, F.S.

Rule 59A-36.021(9), Florida Administrative Code, requires the following for discharge of a resident enrolled in Extended Congregate Care Services:

DISCHARGE: If the facility and the resident are unable to agree on a service plan, the facility is unable to meet the resident’s needs as identified in the service plan, or the resident no longer meets the criteria for continued residency, the resident must be discharged or relocated in accordance with sections 429.26 and 429.28, F.S.

Learning Summary

This lesson explained the common issues that Ombudsman face in the advocacy work they perform for residents. Now you should know how to:

  • Understand the importance and requirements for consent and capacity;
  • Identify the legal representatives such as guardians, power of attorney, etc.;
  • Understand discharge rights and responsibilities.
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