Can I Trick My Brain-Damaged Brother Into Taking His Meds?

This question, or variations on it, come up frequently in the world of elder law and special needs planning. An adult child will call, asking about how to help get his mother (who is experiencing memory loss and paranoia) to take needed medications. A parent of an adult child with a cognitive impairment will have ask about persuading (or deceiving) their loved one into taking their meds, or going along with placement in a facility. People have heard that guardianship is expensive and intrusive. They often look first to solutions that avoid the court process.

The recent Ethicist article in the New York Times (link here), titled Can I Trick My Brain-Damaged Brother Into Taking His Meds? is a helpful analysis of the ethical issues involved in these situations. As the article points out, “There are more and more people, many of them toward the end of their lives, who have suffered cognitive deterioration that leads them to make bad decisions about their own best interests.” It also concludes that “[i]n the absence of a court order or a true medical emergency, however, it’s unlawful to treat someone against his or her will, including through deception.”

These decisions, and the issues that are raised, are not easy. Family often turn to others for advice. While doctors and care providers can and do provide opinions about a patient’s capacity and ability make decisions, family members should also be mindful of various provisions of Oregon law. Lawyers familiar with capacity issues can help wade through the issues with a focus on the legal issues and implications. In those cases where it seems clear that a person no longer has capacity (but has yet to have their decision-making rights taken away by a court), lawyers can help clients through the guardianship or conservatorship process. Lawyers can help analyze capacity issues and give guidance about what tools are available (and best) to use given a set of complex facts. Guardianship is a tool, not a solution. Sometimes less restrictive means are available (and preferable) in a given situation. However, sometimes court authority is necessary, and a court proceeding is unavoidable.