Can the nursing home force me to surrender my POA and guardianship over my mother?

3 answers | Last updated: Oct 09, 2016
Carsonw asked...

My mother has lived with me for 6 years. She is 82, in a wheelchair, has Alzheimer's, diabetes, heart disease and a list of other ailments. The time is fast approaching when I can no longer care for her and must put her in a nursing home. I have held a full POA and legal guardianship papers for her for 7 years. I have talked to the nursing home of her choice, and because her pension will not cover the full cost of her care, she must go on Medicaid ( she has no other assets).

I am stunned that the nursing home has told me that because she will be on Medicaid, that I must relinquish my power of attorney. I have never heard of this before, and cannot believe that they can force me to surrender my guardianship and POA. I live in Illinois. Can, in fact, they force me to do this? I am willing to fight this legally, as I don't think you should EVER trust a facility that much!


Expert Answers

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

I'm stunned along with you"”and have not heard of a nursing home insisting on such conditions.

In fact, most facilities will encourage residents who are able to finalize powers of attorney, as the agent's input can be invaluable in helping direct decisions about personal and medical care. From the resident's and family member's standpoints, it may also be a valuable check on overreaching or wrongdoing"”or just plain making sure the vulnerable resident's wishes are understood.

While it is difficult to be an advocate while you are in the tough spot of relocating your mother to a nursing home, perhaps your anger can help motivate you.

First, be sure that you talk directly with the facility administrator"”not some staffer who may not be aware of the facility's true policies or the residents' rights.

Speaking of those rights, Illinois law clearly provides for them, including one provision that states: (210 ILCS 45/2"‘102) (from Ch. 111 1/2, par. 4152"‘102)

Sec. 2"‘102. A resident shall be permitted to manage his own financial affairs unless he or his guardian or if the resident is a minor, his parent, authorizes the administrator of the facility in writing to manage such resident's financial affairs under Section 2"‘201 of this Act. (Source: P.A. 81"‘223.)

While it may bore you to do it, sometimes reciting chapter and verse of the law will get the nursing home personnel to understand that you understand a potential resident's rights and will not be pushed around.

While a huge percentage of nursing home residents receive help from Medicaid, some facilities will make it more difficult to admit them, since they tend to take in a lower amount for them than for private pay residents. If you sense this is what is happening, you may want to reconsider choosing the facility. Both state and federal laws prohibit discrimination against Medicaid recipients. And while a nursing home that accepts Medicaid recipients can limit the number of such recipients, it cannot require a resident to give up legal rights to enter.

But you may also want to fight a little to right the wrong. In your state, the Illinois Department of Health, www.idph.state.il.us, is responsible for licensing nursing homes and making sure operators keep within the limits of the law. Consider contacting personnel there to discuss your concerns about this facility. That, too, may speak loudly.


Community Answers

Carsonw answered...

Thank you for your well thought out and extensive answer. I have told this nursing home-a five star facility, very highly rated-that under NO circumstances will I surrender my guardianship and POA. I just found out that they applied a full-court press to a friend of mine whose mother was just admitted, and she caved in and surrendered her POA. I have contacted the local Area Council on Aging and asked them to advise the proper authorities, as this is serious scumduggery, and there has to be a reason-not a good one!-why they are insisting on this. My take is so that they can go snooping around looking for assets to seize. I appreciate the time you took to answer-thank you again very much. Carson BTW-I've used your WillMaker software before. Excellent product.


Jump answered...

I've had my mother in the last six months up to differ nursing homes in Eastern Ontario. There is major problem with some of the paperwork these nursing homes have without a question. There is one document and there were you do sign overfull power of attorney rights to the nursing home which I must state is illegal without a question! The nursing home lawyers under guidelines of the ministry of health have to be certified by a lawyer. That statement come from a lawyer for the record. However a lot of people and family sign these documents and are not aware that they are illegal.

I'm in a situation with the nursing home and their paperwork at this time regarding my own mother. There are extremely annoyed with me as I will not sign their illegal papers. However funny in the last few days the lawyer is going to have them certified finally. LOL

Do not sign any papers from the nursing home unless you know exactly what you're signing. There is the center for elderly in Toronto which will look at the paperwork for you for nothing.

If you want this address or telephone number please email me. I will be glad to give you the information I have. It is a really bad situation in Eastern Ontario about how bad the paperwork in these nursing homes are. Some of these nursing homes thinks their ability levels about God which is in right under the law. However. Please take care

Take care

Amida