I often hear from clients who tell me that an elderly parent is no longer safe living alone, due to physical limitations or cognitive decline or both, but the parent adamantly insists on staying in the home. It can be challenging and expensive to locate and schedule professional caregivers, but there may be no other choice if family members and friends are not available 24/7. Sometimes the elderly parent denies that help is needed and actively resists having any “strangers” in the home. Over time, the parent becomes more and more isolated. The adult child may eventually decide that an assisted living facility is the best option to make sure that the parent is safe, that medications and health appointments are properly managed, and that the parent has some opportunity for socializing with others, all of which may help slow cognitive decline. But how can the adult child actually make such a move happen?
If the parent has executed a Durable Power of Attorney, giving the adult child legal and financial authority, that document could permit the adult child to sign a contract with an assisted living facility. But that document does not allow the adult child to legally force the parent to move. On moving day, the parent sits in a chair and says, “No way.” Now what?
If the parent has executed an Advance Directive for Health Care, giving the adult child authority to make health care decisions and contract for health care services, that document does not give the adult child legal authority to force a move to assisted living, even if that seems to be the best option for the parent’s health.
However, an adult child will have legal authority to make residence decisions for the parent if a court has appointed the adult child as guardian for the parent.
In order to be named as a guardian, you must show the court that your parent lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety. After a hearing, if the court determines that your parent does indeed lack capacity based on that standard, the court will appoint a guardian with the right to make medical and residence decisions for the parent.
Moving a parent into assisted living is never easy, even if you are sure that it is the best option, given all the circumstances. There are many emotional, financial, and family considerations to be weighed. But knowing whether you actually have the legal right to make the residence decision for your parent is vitally important.
If you have questions about your right to make residence decisions for a loved one, please consult with Baumbusch Law for knowledgeable and understanding legal advice.