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Can Grandson initiate Electronic Surveillance of Grandmother?

Dear Mr. Premack: My grandmother is in a nursing home, and I think that she is being taken advantage of by another resident. She has dementia and gets very disconnected from reality. Sometimes when we visit, she talks about her boyfriend visiting. The nursing staff says that they watch closely and that she does not have any male visitors, but I’m not sure I want to trust them. Since I’m good with computers I had the idea of setting up a networked webcam in her room but they refused. I want to do this for her safety. Don’t I have the right to insure my grandmother’s safety by monitoring her visitors and activities? – E.M.

This is a very delicate balancing act. Of course you want to be sure your grandmother is safe and secure in her nursing home quarters. At the same time, she is an adult woman with her own legal rights. The Texas “Bill of Rights for the Elderly” guarantees her legal right to privacy, the right to handle her own finances, the right to make her own medical decisions, and the right to be free of electronic monitoring.

Texas law assumes that your grandmother is legally competent. If, in fact, her dementia is so severe that she would be classified as incapacitated, then 1) she cannot make her own decisions, 2) she may have delegated that authority in writing to an agent, and 3) she still has all of her rights under the Bill of Rights for the Elderly. While she is incapacitated, her rights are generally delegated to her agent under her durable power of attorney.

The only right that cannot be delegated to her agent named in her durable power of attorney is the right to authorize electronic surveillance. The Texas Health and Safety Code explicitly provides that only the individual (your grandmother), her court appointed guardian, or her “legal representative” as defined in the Texas Administrative Code can authorize electronic surveillance. The law explicitly does not allow her agent under a durable power of attorney to authorize electronic monitoring.

If the patient is considered incapacitated and does not have a court appointed guardian, then her “legal representative” can include (in this order of priority): a) the agent she appointed in her Medical Power of Attorney, b) her spouse, c) a majority of her adult children, or one of them who has consent from all the others, d) her parents, e) someone she clearly identified for this task before becoming incapacitated, or f) her nearest living relative.

Any type of electronic surveillance, be it video or audio, computerized, wireless or a simple tape recording, is legally forbidden without properly authorized legal consent. You, simply in your role of grandson, are unlikely to have the authority necessary to place the monitoring equipment which you envision. You can discuss your idea with the people who are authorized (seek out the agent she appointed in her medical power of attorney) to find out if the agent is willing to give legal consent for your idea.

Although the law seems to be written to protect the resident’s privacy, it has another major impact. If surveillance is legally authorized and installed, and abuse or neglect of the resident is detected, the person who approved its installation can be held criminally liable for failing to report any abuse or neglect of the resident. Failure to watch a recording is not a defense; it is assumed that the responsible party watched the surveillance record within 14 days of its creation.

This places a huge burden on anyone who thinks that recording the resident’s room is a good way to catch a boyfriend, thief or a nurse mishandling the patient. If that recording runs 24-hours a day, the record will have to be viewed in its entirety to look for instances of abuse or neglect. If abuse happens and the recording was not viewed (so the abuse was not reported) the patient’s responsible party can be criminally prosecuted.

Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, January 9, 2012


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