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.
