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

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 Answer

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.