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

5 answers | Last updated: Oct 25, 2016
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?

Expert Answers

Barbara Repa, a 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.

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 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.

Community Answers

Carolo4 answered...

It's really quite sad that someone outside of a family member wants to interfere with family wishes. It is the family who knows what their own parent needs are and what they are capable of doing outside of a nursing home. And, as written above, most people are not in a nursing home unless a doctor feels they should be. Perhaps she is not eating or bathing as she should, forgetting to pay her bills or take her medications. Perhaps she is getting forgetful and her daughter doesn't want her burning the house down. Let people worry about their own parents!

Rickbc1 answered...

Completely agree with carolo4. Mom is diagnosed with Alz and Lewy body dementia. I have had Durable POA and POA health care. Moms specific and notarized instructions were to NOT be a burden on the family in any way. Then enter the "friends" who don't believe that anything is wrong with her, and, even though I have 2 different doctors saying she cannot drive and the state removed her license, when I removed her car because she does not remember that she cannot drive the friends file an anonymous complaint with the state for abuse and I get investigated for 2 weeks. (Unfounded thank you very much). In her diminished and gradually lessening mental capacity the friends have convinced her that I am the bad guy and have ruined her life. Now my mom and her only child (me) and remaining family member have NO relationship save a hostile one.

A fellow caregiver answered...

Every situation is different - But sometimes burned out family members make the worst advocates for their senior relatives care. I may be entering just such a scenario now - as the son of my aunt has used the power of attorney he holds to move her funds into an account under his name. Now he's ready to move her from her home into a nursing facility against her will. Sucks to be old and dependent on America. This is why I think people with adult children should cut financial ties and stop bailing them out when they get into trouble. If these parents hadn't financially sacrificed for their adult children - then they would have the funds to defend themselves when the wolves come to the door.

Dtaber answered...

Is this "friend" going to provide care? Is he/she going to pull up their boot straps, jump in and help? Are they going to go in the middle of the night, if there are needs that must be met? If any of these answers are "no", then they need to shut their pie hole and butt out. My siblings and I are currently dealing with a situation in which my 100% immobile mother is adamantly opposed to nursing home care. She has threatened to have the POA revoked. She cannot care for herself, her toilet needs, feed herself, but it is her wish that she die in her house. We, her children, cannot in good conscience allow this to happen. There are not funds available for 24 hour care, hospice will not provide 24 hour care, she cannot live with one of us, as two of us are out of state. Our resources are limited and we are trying to make the best decision, for her, that we can. This "friend" is only getting one side of the story. Unless there are visible signs of neglect, abuse, etc, stay out of it!!!