What legal issues can we anticipate going against my step-mother's wishes to keep Dad in an assisted living near her?

2 answers | Last updated: Sep 14, 2017
A fellow caregiver asked...

For four years my now-88 year old father's memory has been diminishing and his health has been unstable. He had several hospitalizations for blood loss, numerous falls with injuries that required nursing support due to blood thinners, lost his drivers' license and, finally, this winter, his wife of 10.6 years called frantically, saying she was no longer able to handle Dad, while he was screaming about her stealing from him, hiding his things, crying to come live with me. This set in motion a knee-jerk reaction wherein two of four siblings assisted the wife in moving Dad into assisted living in their own community.

Within two months, Dad was sent to the behavioral health unit in a local hospital for an evaluation. One assessment observation and blood work ended in a severe-dementia/Alzheimer's dementia diagnosis and recommendation for 24/7 placement care. Dad was returned to the "memory" unit of the nursing care wing in the same local community.

Now, six months later, the siblings are all pretty unhappy about the level of care and the situation. We are all out-of-state...our parents retired to a huge retirement community in the midwest and Dad had moved into his wife's home with the second marriage after Mom died. Two siblings had great difficulty and never liked, nor trusted, Dad's second wife.

I found a respected gerontologist to see Dad in the capitol city of the state, a 90 minute drive from her home, where Dad is now. Everyone was satisfied with the new doctor, the change in medication and closer supervision of health care. The second visit is coming up and I'll be there.

So, my question is, I believe the sibling concensus is to move Dad out of state to improve his quality of life and care in a significantly better memory unit closer to us vs. his wife. She still won't take him home, even with home care, says if he's moved out of their community it will be difficult for her to go see him, hasn't been pro-active in finding help, just complained all the time about his weakening memory and was unreliable with medical follow-up. She will get his significant pension after Dad's gone, but is getting nothing currently as determined by their antinuptual agreement.

My question, therefore, is: what legal problems should we anticipate if Dad is given the medical go-ahead to move and we do it? Any experiences with such a move, considering he's not moving into one of the siblings' homes, on an aging parent with very poor short-term memories? He'll be literally five minutes from my family, on my way home from teaching middle schoolers, so it would make me very happy.

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.

There would be a fairly straightforward legal answer if your father completed a power of attorney for healthcare while he still had the mental capacity to do so. In that case, if he named an agent or proxy to direct his care, then that person is authorized to make those decisions.

But if there is no such document, for better and worse, unless a current spouse's actions or inactions amount to abuse or neglect, his or her wishes usually trump those of the adult children.

Well-meaning as you and all your siblings may be, you also know that it's disruptive for anyone to move"”and can be especially unsettling for someone with Alzheimer's. And whether you like and trust her or not, there are also the rights and feelings of your father's wife to consider. If you are married and on friendly terms with your own spouse, think of how a similar move away might feel to you. And she is also in the best position to know whether a it is no longer possible for her to care for him at home. From your description, it sounds as if home care would not be a safe option for anyone involved.

If you're concerned about the quality of care your father is getting, there may be ways for all of you to work together to improve it. Perhaps the gerontologist would be willing to review your father's care plan and make suggestions for improvement. If you have specific complaints about the care he's receiving, do not hesitate to take them up with the ombudsman for the facility, who will be charged with investigating and helping to reach a solution. You can find the local contract through the National Long-Term Care Ombudsman Resource Center at www.ltcombudsman.org/ombudsman.

If the consensus remains that it will be measurably better to move your father because it will improve his quality of care and life, try to involve his wife in these discussions. It may be possible for her to relocate or get some type of temporary housing that would allow her to visit more easily or more regularly.

It sounds as if dealing with your father's wife may be difficult for at least some of the siblings, but there may be some additional sources you can consult for guidance.

It may be helpful to contact the local Area Agency on Aging to discuss your concerns confidentially. A staffer there should be able to help you decide what local resources might be fitting and available. You should be able to find the local office through the agency's national arm at www.n4a.org.

And if the expanded family dynamics remain dicey, you may want to consider contacting an experienced family mediator to help figure out how all of you can work out your father's final care and make it possible for you all to maintain a relationship with him.

Community Answers

Heidiho answered...

Thank you so much. We have the POA prior to the dementia for health and finances, just no specific authorization for custodial care. You've actually supported information and suggestions I've gotten here in SoCal from LeezaPlace and other Elder resources. While I totally love the local Memory Care/reminesence Unit, and do believe the wife is, at best, stupid and self-centered, this is the person my Dad chose after Mom died at home in '96 over moving closer to any of the siblings, back to his hometown or the adult grandchildren. Thank you for your support. Sincerely, Deborah Coltun