F0578

D

Failure to Determine Decision-Making Capacity and Verify Legal Representation for Cognitively Impaired Residents

Flint, Michigan Survey Completed on 01-15-2026

Penalty

No penalty information released

Summary

The deficiency involves the facility’s failure to implement and operationalize its policies and procedures for advance care planning, determination of decision‑making capacity, and verification of legal representation for three cognitively impaired residents. For one resident with dementia, psychosis, and anxiety, the MDS and multiple clinical notes over several months documented that the resident was rarely/never understood, alert only to self, highly cognitively impaired, and unable to make needs known. Psychiatric evaluations repeatedly described advanced dementia, profound cognitive impairment, and limited capacity for engagement, and a physician note explicitly stated the resident was cognitively impaired, unable to make decisions, and would need guardianship. Despite this, there was no documented competency assessment, no identification or activation of a legal decision maker, and no social services documentation addressing designation of a legal representative. The resident’s face sheet listed the resident as their own responsible party, and the granddaughter and daughters only as emergency contacts.

During this same period, the facility obtained signatures on advance directive and psychotropic medication consent forms that were attributed to the resident, even though staff interviews confirmed the resident was not cognitively intact and did not have a DPOA or guardian. The advance directive form documented that the resident did not choose to formulate any advance directives, and psychotropic consents for Zyprexa and Remeron were signed and witnessed by staff, with illegible or inconsistent resident signatures/initials that appeared dissimilar from each other. Social services documented that the resident remained their own person and that the patient was their own decision maker, while other clinical notes described the resident as non‑verbal, unable to verbalize needs, unable to retain education, and exhibiting aggressive behaviors. Discussion with family about pursuing guardianship was not documented until approximately four months after admission, and social services acknowledged that no competency assessment was completed and that they did not address the lack of a legal decision maker because the resident was initially expected to be short‑term.

For a second resident with a BIMS score of 0, severe cognitive impairment, aphasia, dysarthria, and dependence in ADLs, the MDS indicated the resident was rarely/never understood. The face sheet listed the resident’s mother as responsible party, but there was no documentation of competency assessment, guardianship, or DPOA in the EMR. Social services documented that the resident remained their own person and had no wishes to issue further advance directives, while also recording that the resident was nonverbal and that the mother refused psychiatric services on the resident’s behalf, even though she was not documented as a legal representative. When surveyors attempted to interview the resident, verbalizations were not understandable, and a CNA reported it was hard to know what the resident wanted and that they normally could not understand the resident. Despite this, an advance directive form in the EMR showed a clearly written resident signature that closely resembled the LPN witness’s signature; the LPN later denied that the signature was theirs or the resident’s and stated they did not know who signed the resident’s name. The LPN also reported the resident was admitted alone and was unsure who was making the resident’s medical decisions.

For a third resident with heart disease and dementia, the MDS showed severe cognitive impairment and need for supervision to total assistance with ADLs. Two HCPs had deemed this resident incompetent to make medical decisions, and probate court documentation granted a named individual temporary guardianship for a defined period. However, no permanent or current guardianship documentation was present in the EMR after the temporary order expired, even though the face sheet continued to list this individual as the resident’s legal guardian. The Social Services Director stated that the resident had an active legal guardian and that guardianship documentation was maintained in the EMR, but when reviewed, only the expired temporary guardianship order could be produced. The director acknowledged they did not have current guardianship documentation and did not explain how they knew the individual was legally able to make decisions without proof. The facility’s own policies required ongoing assessment of decision‑making capacity, determination of when residents could no longer make their own health care decisions, and maintenance of documentation for guardianship or surrogate decision makers, but these processes were not carried out or documented for the three residents.

The Administrator confirmed that social services was responsible for addressing competency and legal representation but was unable to explain why these issues were not addressed for the residents in question. The Administrator also acknowledged that the signatures on one resident’s advance directive form appeared similar and that it did not appear to be the resident’s signature, and agreed that no one else should sign for a resident unless requested and documented. The Administrator further confirmed that guardianship documentation should be scanned into the EMR and was informed that one resident’s guardianship documentation was not current, without providing further explanation. Overall, the facility did not follow its policies on advance directives, determination of advocates’ authority, and ongoing review of residents’ decision‑making capacity, resulting in the absence of timely competency determinations, lack of appropriate and legal representation for two residents, and lack of current guardianship documentation for the third resident.