Need help getting a physician to sign an "affidavit of incapacity." Any suggestions?

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Need help getting a physician to sign an "affidavit of incapacity." Any suggestions?

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Long story short. My mother was taken into custody by DSS in her state. She spent a month in a psychiatric unit and then transferred to an assisted living facility where she has been for the last 2 months. I am in the process of requesting conservatorship which requires a physician affidavit of incapacity. Her internist, who has seen her for 20 yrs won't sign saying the psychiatrist at the psych unit should sign. The psychiatrist states he cannot sign unless he has visually seen her in the last 24 hrs and she would have to be readmitted for that to happen.

Everyone that deals with her recognizes the mental issues (she's 94). Must have the affidavit to proceed.

I feel like I've hit a brick wall. Any suggestions?

Cognitive Decline Elder Law Guardianship

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Doctors are dragging their feet, pointing to each other, so they can avoid committing. Best bet is to find a good Elder Care Attorney who can facilitate - nothing like a call from an attorney to grease some wheels. They know all the ins/outs of getting guardianship and can facilitate that as well. It may still require seeing the psych doc (or a different one) again, but whatever it takes. One would think her records would indicate what the Dx was and there should be no question, but doctors can be difficult. Do you have access to her records? Do you have any POA (financial or medical)? Perhaps a new doctor is in order, but if DSS already has guardianship, that Elder Care Attorney is a must! Guardianship will override any POAs.

Mom's doc of many years, during the last visit we had, chatted with me after I exited the exam room when mom became belligerent. He agreed to write a letter, needed for activating our POA. 6+ months and many back & forth messages by phone (generally never got through to a person) and through the portal, no letter was provided. This was mainly an OFFICE issue - they said they cannot do this without seeing POA, which I had already sent to them, but sent again. They needed to know what the pension reps (federal) needed, and I had sent that to them BEFORE the appointment!!! In her case, it was the office staff, not the doctor, but I couldn't get through to him! Frustrating doesn't even cover it.

Because we moved her to MC local to where 2 of us live, we changed primary doctors. That still took a few attempts as the letter needed to have just the right magic words for her federal pension (SS required sign up as rep payee - easiest part of the whole process!) Thankfully we did not have to go the guardianship route, as that is even more time-consuming and expensive. On a slightly different note, do be aware of how the doctor(s) work with you - this new doctor we chose was okay initially, but became a problem as she really didn't understand dementia very well (or our mother.) We changed docs again (would have to anyway as she decided to retire!) You *must* have a doctor who is willing to work with YOU.

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DSS should be assisting you since they initially found a problem and took custody. It would seem, DSS would need to order another evaluation to determine if custody continues or ends.
If they refuse, ask the nursing home if they have a psychiatrist on staff. If that won't work, make an office appointment with the psych doctor who cannot do another eval without seeing her in person. Put her in a car (or request transport if you don't feel safe driving her) and take her back.
Isn't it wonderful how some medical folks create one roadblock after another when they, basically, already know what you are dealing with??? Frustrating.

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First I would think DSS would want to help make this happen if they can since it relieves them of all responsibility for mom's care and safety but if they aren't able to help facilitate this I would insist her internist and the psychiatrist communicate about this and either both sign a letter or decide who should be doing it, it's in everyone's best interest, ALF too for you to have this responsibility, seems to me it males everyone's job easier if you are taking on the decisions, coordination work and responsibilities. Push them all a bit harder on this and point out that it only helps them and makes more work for you so if they really want to keep doing all the tracking and coordination of mom's life you can certainly just visit her and enjoy far less stress..

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Could it be that mom has a substantial estate? They wouldn't want to give up a well paying client.

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Is there a doc at the facility where she is at? One that oversees the facility? Maybe he can see her. Explain the situation. Im sure your not the first person to have this issue. You can always talk to the intake coordinator of the facility. See what they suggest.
Id also see if you can go to the head of the department in the psych unit. They saw her there at the time. How did she miraculously improve so much?

You need help and the docs keep pushing it off. You can always cry a bit, say your overwhelmed by this and no one will help, just passes the buck etc, etc.
Tell them you are out of state. You need help. They have her records. Its rediculious you have to take off from work and drive sev states to deposit her in the psych docs office. Which then he wont be there, or you have to re-admit.

Or just wait till she requires hospitalization or doc visit again.
Go to the head of the hospital if you have to and explain you need help. Good luck.

You can also ask the DSS for help, or call the dept of aging in the state and county she was in. Explain the situation. Good luck.

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If internist won't sign declaration of incapacity is it because she isn't incapacitated? If so, she could appoint you poa/dpoa and your problems go away. In our case, hubby hadn't seen his primary for over a year (because there isn't anything else the matter with him and he only sees her once a year anyway). But I needed 2 letters. She wrote one for me without question and gave me a reference to a neurologist and I was able to make an appointment pretty quickly, the neurologist talked to him for about 10 minutes and wrote the 2nsd letter. It was obvious to him that hubby lacked capacity to make any decisions for himself.

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If she was taken into custody, maybe she is till in their custody and you are no longer entitled to information on her condition?

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What do the discharge papers say from psych unit? There are most likely several diagnoses.

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Ask the doctor that treated your Mom in the psychiatric unit to write the letter. I am assuming that you do not have power of attorney for health care for your mother. If you do, then the psychiatric doctor at the hospital should have to write the letter stating your mother's condition at the time she was in the hospital. I expect that should suffice. If they refuse ask the court clerk for advice. If they won't help there are attorney referral agencies or even attorneys advertising online that will give you a half hour of free help over the phone. And you can ask them for help and suggestions. There are also governmental agencies that help elderly people. If anyone refuses to help you with this make sure you ask if they know someone who can help you. It is possible that your mother's regular doctor must legally write the letter so I would suggest asking the attorney about that or how to get them to do that. I'm also wondering if Medicare would send a doctor to your mother and who would be willing to write that. If not, I wonder if hospice would start seeing your mother and write the letter. When I needed the same letter for my mother I discovered via the Internet that there are doctors that will come to your home and write such a letter after examining your mother. However, they will charge anywhere from $300 - $500 to come. I hope this helps.

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I think she is saying that the doc at the psych unit is the one who has refused to fill out the form without seeing her in person again.

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Get her an appoint with a geriatric doctor to be evaluated and to determine her condition. Once the document stating her being unable to care for herself is signed...an elder attorney will help you petition the court for guardianship / conservator. The process for temporary guardian may be quick but permanent will take at least 90 days as the attorney has to send copy of the petition to other immediate family members for response, etc. Attorney will brief you on this.

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Doctors hate signing things. It means committing to a diagnosis and taking a legal stand, which could leave them open to a lawsuit at some point. And since Americans sue each other at the drop of a hat, and sue doctors even more often, it's understandable. But it sure is annoyingly inconvenient. It sounds like you might be better off with both the psychiatrist and your mother's regular doctor signing off on the incompetence, for the before and after and physical and mental.

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My great-aunt was able to fool the doctors for the short time-frame for the testing for dementia. It took the intervention of a lawyer & his head nurse wife (friends of the family) to find a doctor to ask the right questions to prove incapacity.

In defense of your mother's internist - he has to protect himself from malpractice and also he is supposed to be "for" your mother and protect her rights.

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Unfortunately you don't have the leverage I did with my father's reluctant physician. I do not understand why doctors are reluctant to sign an affidavit supporting incompetence more than a decade after diagnosing vascular dementia and then having the geriatric psychiatrist documenting in his records that Dad was not capable of making either financial decisions or decisions in his own best interest (copy was forwarded to the PCP). I sent a certified letter to the doctor asking for the affidavit again and stating that his reluctance to provide this legal documentation of the findings recorded in my father's medical records meant my father continued to endanger himself and the public by legally driving and carrying a pistol. If something unfortunate occurred, I would be releasing this letter publicly in order to demonstrate the family had pursued every legal option available to prevent any foreseeable tragedies. The affidavit arrived by certified mail 3 days later.

Since you don't have leverage, I would take the previous posters suggestions to have a geriatric psychiatrist visit your father for a new evaluation. To the legal world that you need to navigate, the medical records mean far less than the summary statement of incompetence.

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My MIL's doctor wouldn't commit to her having full blown dementia, even though we went through it with FIL also and recognized the symptoms. My husband and his brother's solution was to get a new doctor for her.

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Is there a doc at the assisted living facility? In consult with other medical staff there they should be able to provide the necessary documentation.

Would the psychiatrist make a house call?

Is she in assisted living or memory care?

Talk with the social worker at the facility that she is in.

Could the facility pursue emergency guardianship/conservatorship until you can get this done? I know this would not be preferable.

She could see any neurologist or psychiatrist to get this done. Doesn't have to be an inpatient. This isn't really a decision that would be made by an internist or a dermatologist like ts2 tried to do once.😀

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Is there a dr she sees at the ALF? Are her mental issues related to mental illness or dementia? If dementia, see a neurologist. Change pcp drs. My mother insisted on seeing a quack who refused to diagnose my stepfather as having any “dementia “ (neurologist considered him moderate to severe Alzheimer’s). I think it’s misguided “ sympathy “ that doesn’t help anyone and makes the whole situation worse.

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There are geriatric drs that see patients in facilities but even they are reluctant without a full psych evaluation. Since it’s been so long I’m not sure I wouldn’t go back to original psych dr. Have ct scans been done or maybe not needed or possible.

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So much missing information--a power of attorney (POA) has to be established; if she is mentally incompetent, the psychiatric unit should have organized a visiting Justice at the unit to establish POA or legal guardian, and a month is a LONG time to be hospitalized; in my opinion, that's cruel to subject to a 94 year old.

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Pay the psychiatrist to visit her in the ALF so that he has seen her - and get him to talk to staff to get a good picture of her mental state. Doesn't need to be re-admitted, he just needs to be offered sufficient inducement to go and see her where she is. Sadly money rules.

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That doesn’t happen here maybe in U.K., but most psychs here do not make house calls.
The facility has a dr on call get that set up, or transfer.

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The law makes it difficult to have a person declared incompetent, and with good reason. If the person has dementia other factors impact the decision to declare a person in need of a guardian. (One's capacity can change from day to day or with regard to certain issues, e.g.) Do you have the PoA? If so, are you able to exercise this to do what is needed for your mother's care? If so, is there really a need for guardianship? You can petition the court for guardianship, in which case the issue of psychiatric testimony might be handled differently.

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Another option may be to check to see if AL has a neuropsychologist they work with who sees patients at the facility. They could do an evaluation; I think Medicare pays for it, and they give you letter of incapacity. It would have been useful for the psychiatrist to have done this while she was in that facility but that ship has sailed.
Go ahead and also talk to elder care attorney just to confirm all the steps and so that you get the proper paperwork the first time.

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Would hospice be able to do this as part of their evaluation?

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The important thing is that you yourself must NOT pay out of your own funds, because you will be unable to recoup this from her funds once you are in charge. It is the worst thing that happens to some people. Without pay, the assisted living will soon enough release or readmit your Mom for the proper papers. I am surprised that any assisted living took her without this all in place. Ask at your assisted living to speak with the social worker about beginning to get a guardianship for your mother. The first step may be an elder care attorney to get you into court to be assigned her guardian. This will get you the power of attorney you need to pay her bills. It is a long process and not without cost. Keep CAREFUL records of anything you spend on the Elder Care Attorney and the process to be made guardian so you can get those funds out of her estate.

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I wonder if you could work with the Social Worker at the facility where she is currently living. There are Doctors that the facilities use, that make rounds there is it possible for that doctor to sign?
Is anyone POA?
How is the facility getting paid?
If you are paying bills for her but do not have the "legal authority" to do so at some point the facility will bend over backwards to do what they can to help you obtain guardianship so they can get what is owed to them.
If the facility Social Worker does not help or will not help next time your Mom is admitted to the hospital ask the hospital Social Worker and when she is brought in to the hospital even if she is not admitted ask for the psychiatrist to evaluate her then have him sign what he needs to.
I would think a court would accept the diagnosis in the patients file in place of an affidavit.

Have you consulted an Elder Care Lawyer? They might help in this matter as well.

Please keep us posted I am sure others have gone through this or will at some point and would love to know how this is resolved

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Pay a psychiatrist to go to the facility where your mother presently resides. We paid about $300 for the assessment and subsequent document. It may cost you more, because we were dealing with psychiatric services that were provided on site.

There may may be additional fees, but the cost is worth having the document in hand. We were dealing with a contentious and non-productive family situation which was readily resolved when I had the document.

Bottom line-the cost of getting someone to assess her circumstances wherever they need to go to get to her, is WORTH the cost.

Hope the rest of your efforts go more smoothly.

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This sets my teeth on edge. Rather than you hitting a brick wall, wouldn't it be wonderful to get the internist and the psychiatrist in the same room and bang their heads together?

I think I'd probably start by sending an email, copied to both of these practitioners, inviting them to resolve this issue in consultation with one another. Once they have, perhaps they would be good enough to recommend next steps.

Fume. The whole thing reminds me of a political cartoon I once saw of a premier operating a remote control on a junior minister and swearing "No, right! I said go right! Not round and round in circles - God! - you really are a crap robot..."

"Crap robot" is quite a handy term for other types of people who are paid to solve problems but come over all helpless, too.

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Need help getting a physician to sign an "affidavit of incapacity." Any suggestions?

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