Can I be kept current on Mom's condition without a power of attorney?
My mother lives in an assisted facility in CA. She has Alzheimer's. The eldest sibling is her power of attorney. Three other siblings live in three other states on the east coast. The eldest has chosen to stop talking to us and giving us details on our mother's physical and economic health (we have some reason, no proof, to worry that the sibling is keeping money back from the facility that belongs to our mother). We were told that with the Privacy Act we cannot find out anything. Is there true? Is there a legal way to keep informed of our mother's health and economic well-being without power of attorney? Thank you.
Expert Answer
A person who becomes an agent for another in a durable power of attorney has only the right to make decisions that are in the person's best interests. Without some clear proof that contact with family members seriously jeopardizes the person's health or well-being, most courts, facilities, and human beings agree that it is best for caring family members to keep informed about a family member's condition.
To emphasize this, laws specifically give family members rights when their loved ones become residents in long-term care facilities. The rights are a bit different, depending on whether the facility is considered a "nursing home" or a "residential care facility;" places called "assisted living" may fall into either category.
But the laws are fairly specific. For example, federal gives family members of a nursing home facility residents the rights to: --Visit the resident at any time --Participate in planning the resident's care, and --Be informed of an accident resulting in injury, a significant change in the resident's condition, a need to alter treatment significantly, or a decision to transfer the resident.
And the law provides that residential care facilities must promptly respond to communications by residents' family members and legal representatives.
However, whatever the laws, duties, and rights, the reality is that there are some people and some personalities that impede the flow of information"”and some facility personnel who may not follow the letter of the law because of ignorance or inconvenience. It sounds as if you may be up against both barriers.
I'm assuming you've tried reasoning with your eldest sibling"”and haven't had any luck. So your next step is to contact others for help and information. If you and your other siblings agree that it's the lack of information that is most irksome now, perhaps you could also agree to make one of you the prime out-of state contact to communicate new information to the other siblings.
Your next step might be to speak with the facility administrator and describe your situation. Frustrating as it is, it is sadly not an uncommon one"”and many experienced facility operators will have thought of ways to make the information flow easily.
If you don't get help directly from the facility, consider contacting the ombudsman dedicated to helping solving resident and family problems there. You can find the California ombudsman assigned to your mother's facility at www.aging.ca.gov/programs/ombudsman.asp.
Finally, if all these at tempts don't get you the results you seek, contact the California Advocates for Nursing Home Reform at www.canhr.org. Representatives there may be able to give you counsel or intercede on your behalf.