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When Mom Can’t Live at Home, Does Power of Attorney Help? Yes and No

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Can't live at home

A newsletter reader asks: Can you use a health-care power of attorney to admit someone who can’t live at home safely to a care home?  The answer, legally, is clear: No, you can’t. The practical answer, however, is probably yes.

A health care power of attorney names an agent to make health-care decisions for you if you can no longer make them.  Moving to a care facility, whether it’s assisted living, nursing home, or memory care, in a technical, legal sense, isn’t covered. Consider that residential care is different from medical care. Residential is where someone lives, and the facility may provide different levels of care, but a person is there mostly to live. Medical care is more obvious; you are there to get treatment, and includes hospitalization, skilled nursing, and inpatient psychiatric facilities. If you are there primarily to live, not to get treatment, a health care power of attorney isn’t implicated.

Then There’s Real Life

Do residential facilities appreciate this distinction? Mostly not. Consider the following scenarios:

Mom Carol lives alone and a caregiver, Cindy, comes by a couple of times a week to do light cleaning and help out. Cindy reports some scary things: Carol has forgotten to turn off the range, is having difficulty preparing meals, and forgets to take medication. Carol’s three kids have decided she can’t live at home and should move to a facility; they share powers of attorney both health care and financial.

If Carol is able to decide where she wants to live, she gets to decide. Period. But family members, friends, and professionals can be powerfully persuasive. We have witnessed (and hosted) family meetings where children confront a parent with the fact that they fear for safety at home. Most elders recognize such an intervention as an act of love, and agree to try out another arrangement. Named agents under a power of attorney may have extra leverage. After all, the ailing elder named the agent to make health care and financial decisions, so the agent’s opinion ought to matter. Physicians, financial advisers, and even attorneys can help, too. If the loved one will agree to tour facilities, that can help. Care homes don’t give tours for no reason;  reluctant residents often find that facilities are not the horrible institutions they had imagined. Most of the time, persuasion works.

PoA Can Be a Useful Tool, Though

Even if agents under power of attorney are not the official deciders, they are often integral to the process, especially the agent under a financial power of attorney. The agent for finances can negotiate and sign the contract with the facility, arrange for payment of movers, etc., and make the move actually happen.

But let’s say Carol is impaired to the extent he or she is unable to decide. If she does not object to or refuse to move, facilities are OK with that. Can the children take mom out for ice cream and end up going “home” to a care facility? Sure. As long as Carol makes peace with where she ends up, it’s not a problem. In these situations, Carol still technically has the power to decide where she lives.

‘No, never, I will not go!’

So let’s say Carol’s response to her children is: “No, never, I will not go!” Or that the children take her to a facility and she refuses to stay. In order to legally force Carol to live where she doesn’t want to, a guardianship is needed. A guardian is appointed by a judge after a court proceeding. After the appointment, the incapacitated person becomes the guardian’s “ward.”  The guardian has most of the powers, rights, and responsibilities that a parent does with regard to a minor child. That includes establishing the “place of abode” for the ward.

The court proceeding for guardianship is intrusive and expensive, particularly if either the proposed ward or family members can’t agree on whether it’s needed or who should do the job. However, if a loved one’s health and safety are at risk, it can be important and necessary.

In the End, It May Not Help Much

Note that, even if the guardianship proceeding is successful, having guardianship papers does not transform an angry, annoyed Carol into a sweet, compliant grammom. She may still believe that she’s fine and should can live at home. Whoever is appointed guardian may legally have the power to decide she can’t live at home.  But Carol is still Carol. Maybe angrier than ever. The guardianship process often creates even more turmoil in the family, and Carol may still have enough capacity to change her estate plan and disinherit everyone. We say try persuasion, intervention, and ice cream first.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.