Caregiving of an older adult can be difficult. Some caregivers find themselves in the position of having to make the difficult decision of choosing between home care options (professional caregivers) or having to move an elderly family member into some type of residential care situation for the health and safety of their senior loved one.
But what if that senior loved one refuses to move? Can someone be forced into a care home situation?
If your parent(s) or elderly relative(s) have executed a power of attorney health care proxy – you may have some rights to move them to a safer more appropriate living environment. If not, you will need to petition the court for conservatorship and/or guardianship. You may have to obtain both petitions to manage all of the senior’s affairs.
The mental capacity and mental health of the senior person(s), as well as a list of their health problems, will most certainly come into question and if it is deemed by health care professionals that they cannot make financial or medical decisions safely for themselves, then being granted the conservatorship and/or guardianship will be much easier for you.
Legal Documents For Family Caregivers
When someone becomes a family caregiver, it is important to have the legal documents in place to support this role. These legal documents include health directives, power of attorney, and conservatorship or guardianship.
Each of these documents has specific roles and responsibilities that help to ensure that the needs of both the family caregiver and the care recipient are met.
Having legal documentation in place enables the caregiver to act quickly and confidently in situations where their loved one may be at risk or in need. Thus, legal documents are an essential part of any family caregiver’s toolkit as they help to protect both parties throughout the caregiving journey.
We recommend that, when family caregivers become the surrogate decision maker for older adults, they get legal advice from an elder care lawyer right away to begin the process of gathering the legal paperwork that may eventually be needed as your parent(s) grow older (also, some states offer legal assistance for those with low income).
Power Of Attorney Health Care Proxy
Also sometimes called a Living Will – a Durable Medical Power Of Attorney is a type of advance directive that gives legal authority to a designated person who will make healthcare decisions for an elderly patient if they can’t make their own medical decisions. Read more about how to get a power of attorney over an aging parent.
In many states, a guardianship and conservatorship are the same thing and are used interchangeably.
Some states, though, may use the terms separately. In these cases, the main difference between a guardianship and a conservatorship is in the duties. A guardianship covers just about every duty in an elderly person’s life whereas a conservatorship deals with only financial issues.
Guardianship of an elderly parent is a legal relationship created by the court. It gives an individual the right to care for a person who is unable to care for themselves. The guardian is responsible for the welfare and safety of the senior.
Larry Abrams, administrator for Workmen’s Circle MultiCare Center, a short- and long-term care facility in The Bronx, New York, says that in cases where guardianship is not obtained and family members somehow convince an elder to move to a senior living community, there is no guarantee that the elder will stay there.AgingCare.com
Once an elderly resident is admitted into a long term care facility – they and/or their caregivers may have the option to leave (possibly against medical advice). We would recommend that you get this information directly from the facility before you sign the admittance papers.
A physician and/or social workers may recommend that you or your senior loved one move into a care home environment but you do not have to do so – as long as you are capable of caring for yourself and your affairs safely and effectively.
Can A Senior Citizen Be Forced Into A Nursing Home?
An unwilling person cannot legally be “forced” into a skilled nursing facility – unless it has been demonstrated that the person is unable to care for themselves, there are safety issues, and/or that they require continuous nursing care, and/or that care in their own home is not a viable option and/or that there are no other alternative housing environments for that person.
Many caregivers of older people have to answer the tough questions…
- Can I tend to his/her care needs (physically, medically and emotionally)?
- Can I physically manage this person? (i.e. transferring, toileting, feeding, etc.)
- How much time can I commit to caregiving?
- Will I need and can I get respite care?
- Can we afford home care? What will Medicare cover?
- Is my family supportive? (i.e. can they help with the caregiving)
- Do I have the mental health to be the main caregiver?
- Can I afford to hire outside help for personal care when and if I need it?
The guidelines to qualify for admittance to nursing homes varies from state to state. But, generally there are criteria to meet, such as the person’s health, any physical and cognitive impairments, any behavioral concerns (wandering, aggression, impulsiveness), and their ability to accomplish the daily tasks that make up the normal activities of daily living (ADLs).
Additionally, they must need:
- Continuous, ’round the clock care and daily supervision
- Needed in-patient medical services, physical therapy and/or occupational therapy
- Services that require a licensed physician’s order
The social services department in a long term nursing facility can help you review qualifications and answer your questions.
When home health care is no longer feasible due to the cost or the medical condition of an elderly person, then a skilled nursing facility may be the next best option for optimal senior care services.
But we understand that making this decision is difficult and usually done as a last resort. There are emotional issues to review in such cases, as well as what Medicare and/or Medicaid funding will pay for.
Know that while Medicare covers most home health care services for those who qualify, it does not cover everything. Click here to read more about what Medicare covers.
Can Someone With Dementia Be Forced Into An Assisted Living Facility?
Medicare is required to cover a screening for cognitive impairment to be done during a participant’s annual wellness visits. This also includes testing for Alzheimer’s, which is the most common form of dementia.
If your senior loved one’s family doctor or specialist has diagnosed him/her with dementia or Alzheimer’s – they still have a legal right to make decisions – as long as they can demonstrate that they have the mental capacity to understand and make sound decisions for themselves.
The person living with dementia maintains the right to make his or her own decisions as long as he or she has legal capacity. Power of attorney does not give the agent the authority to override the principal’s decision-making until the person with dementia no longer has legal capacity…In most cases, a person living in the early stage of the disease is able to understand the meaning and importance of a given legal document, which means he or she likely has the legal capacity (the ability to understand the consequences of his or her actions) to execute (to carry out by signing it).Alzheimer’s Association
Of course, this can all get very tricky, depending on the stage of the disease they are in and how cooperative (or not) they are. This is where caregiving can become very difficult.
It would be strongly advisable to speak to an elder law attorney as soon as you or your senior loved one is diagnosed with dementia or Alzheimer’s or with any other illness that will eventually impair cognitive capacity.
At the end of the day, even though it is in the best interests of the individual, moving into a care home of some type is a difficult and emotional decision for elderly people, as well as the adult children. Having help from a social worker or other professional (i.e. elder law attorney) can help you to make the best decision for everyone involved.
Also know that many care homes do provide support for their new residents and families to help with the transition process, as well as continued caregiving by the family.