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Can an elderly person be put in a nursing home against their will by their power of attorney?

1 answer | Last updated: Sep 08, 2014
concerned12 asked...
My elderly friend has been sent to hospital by her daughter who has power of attorney in her favor. The mother is anxious and wants to know can her daughter put her in a nursing home against her wishes and how can she cancel the power of attorney to ensure it doesn't happen?
 

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Caring.com User - Barbara Kate Repa
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Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in...
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As a good-hearted friend who is not related to those involved, you may be in the best position to help make sense of this situation.

First of all, hospital policies See also:
What is the difference between DPOA and POA?
these days generally tilt toward cutting way back on admissions, so it is unlikely that your friend's daughter "sent" her there for no reason. However jarring it may feel, it is unlikely that medical personnel are holding her in the hospital without a legitimate reason to observe or treat her.

And in an odd way, your friend's hospitalization may help buy some time to sort out this situation.

A first step may be to look at the actual power of attorney appointing the daughter to serve as your friend's healthcare agent. Most powers of attorney"”more than 90% of them"”are written to take effect only when the person is considered "mentally incapacitated" and unable to express his or her own wishes for medical care.

So if your friend is cogent and able to express her thoughts"”she sounds to be"”then it is also likely that the daughter has no power under the power of attorney.

And if your friend retains this mental capacity, she also has the power and right to change or revoke her power of attorney at any time. The document itself usually has specific directions for this"”but the safest way is usually to physically destroy all copies of the document and inform all those who had a copy of the change of mind and heart.

You might encourage your friend to finalize a new power of attorney naming a different person to act as her agent"”and to be sure to enter this new directive into her medical records. As a practical matter, this move alone will revoke the earlier document, since legally, the last document will control. It's still a good idea to rip up the old power of attorney, however"”just as an added measure.

Finally, encourage your friend to take the bull by the horns in determining her next move"”and support her in doing that. Consult the hospital's discharge planner or patient representative for resources and advice on how she can arrange in-home care or other alternatives that might cover her care needs"”instead of a nursing home.

 

 
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