Can a person who does not have the capacity to understand her decisions make a withdrawal of care decision?

UPDATED: Oct 1, 2022

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Can a person who does not have the capacity to understand her decisions make a withdrawal of care decision?

I sent a message to my HR of my company addressing that a lot of theft and vehicle break-ins happen in our parking lot and that we needed cameras and my bike was stolen. They called my manager about it and he told a couple of crew members who aren’t managers about the call and they told me that he was annoyed. I’m slightly embarrassed and was wasn’t aware my HR would bring this to my manager. Isn’t it against confidentiality to tell my fellow team mates or a form of retaliation for even mentioning it?

Asked on August 9, 2018 under Employment Labor Law, Colorado


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

For some reason, the question in bold does not match the explanation below it: I will answer both briefly--
1) Can a person without mental capacity make a "withdrawal of care decision": no, she cannot--people without mental capacity cannot consent to, direct, withdraw, etc. care. HOWEVER, there must a legal determination (such as in a legal action brought in family or chancery court to challenge the decision) that the person is mentally incompetent: an adult is presumed mentally (and so legally) competent until and unless a court finds to the contrary.
2) Is it a breach of confidentiailty or retaliation to inform coworkers of a complaint about theft/break-ins in the parking lot? No, it is not--not unless the complaint was made after receiving some written assurance (e.g. in an employee handbook or policy manual) that any complaints made to HR are confidential. In the absence of a policy or agreement to keep a complaint like this confidential, HR may share it with other employees.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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