Can a power of attorney put someone in a nursing home?

According to the Centers for Disease Control and Prevention, over 1.4 million people in the U.S. reside in a nursing home or other certified long-term care facility. Making decisions about care for an aging loved one is challenging, prompting many to ask, "Can a power of attorney put someone in a nursing home?" This comprehensive guide explores the legal requirements and ethical considerations involved in such a placement.

Quick Summary

A medical power of attorney (POA) can place someone in a nursing home, but only if the principal is deemed mentally incapacitated and unable to make their own healthcare decisions. The authority must be explicitly granted in the POA document, and the agent must always act in the principal's best interests, with decisions often guided by physician evaluations.

Key Points

• Medical vs. Financial POA: Only a Medical Power of Attorney (healthcare proxy) can authorize nursing home placement, not a financial one.

• Mental Incapacity is Key: A medical POA's authority for placement only activates when a physician determines the principal is mentally incapacitated.

• Competent Principals Retain Control: A Power of Attorney cannot override a mentally competent person's decision to refuse nursing home care.

• Fiduciary Duty: The POA agent must always act in the principal's best interests, with legal oversight available to prevent abuse.

• Explore All Options: Before placement, consider alternatives and use the decision-making process to ensure the best possible care for the individual.

Understanding the Different Types of Power of Attorney

It is essential to distinguish between a financial power of attorney and a medical power of attorney. A financial power of attorney manages monetary matters, while a medical power of attorney (also called a healthcare proxy or durable power of attorney for healthcare) is authorized to make healthcare decisions. A medical POA's authority to make decisions, including long-term care placement, typically begins only when the principal is medically determined to be incapacitated. A financial POA does not grant authority over healthcare or personal care decisions, such as nursing home placement [2].

The Role of Mental Capacity

The principal's mental capacity is a critical factor [2]. If the principal is competent and can make their own decisions, their choices about where they live must be honored. An agent cannot override a competent principal's refusal to move to a nursing home [2]. If the situation is critical and the individual is competent but refusing care, pursuing legal guardianship might be necessary, which is a court process [2].

When and How a Medical POA Acts

If the principal is determined to be incapacitated by a medical professional, the medical POA agent can proceed with nursing home placement decisions [2]. This involves consulting with the principal's doctor for a health assessment, reviewing the POA document to confirm the authority for long-term care placement, finding a suitable facility, handling admission paperwork, and communicating with the nursing home staff about care [2].

Financial POA vs. Medical POA Authority: A Comparison

Feature	Financial Power of Attorney	Medical Power of Attorney
Decision-Making Authority	Manages financial affairs, pays bills, handles investments.	Makes healthcare and medical treatment decisions.
Scope of Power	Limited to financial and property matters.	Limited to healthcare and personal care.
Activation	Can be effective immediately or upon a specific event.	Activated when the principal is deemed incapacitated.
Placement Decisions	Cannot authorize nursing home admission.	Can authorize nursing home admission if specified.
Liability	Agent must act in principal's financial best interest.	Agent must act in principal's medical best interest.

Ethical and Legal Safeguards

Agents under a power of attorney have a fiduciary duty to act in the principal's best interests [2]. Laws exist to protect vulnerable adults from exploitation or abuse [2]. If there are concerns about an agent's actions, family members can challenge the POA or the agent's decisions in court [2]. Nursing homes also verify the agent's authority and the principal's incapacity before admitting someone against their will [2]. Maintaining detailed records is advisable for agents [2]. For more information on elder law and estate planning, resources like the American Bar Association's website can be helpful [1].

Seeking Alternatives and Resolution

Nursing home placement is a significant step, and exploring alternatives is important. Care coordinators, geriatric care managers, and social workers can assist [2]. Open discussions with the principal, doctors, and family members are recommended to reach a consensus [2]. Mediation or family counseling can help resolve conflicts before legal action is considered [2]. The decision process, when made by a POA for an incapacitated individual, involves both legal authority and the ethical responsibility to ensure the best care [2].

Conclusion: Navigating a Difficult Decision

The authority of a power of attorney to place someone in a nursing home depends on the type of POA, the principal's mental capacity, and the specific powers granted in the document [2]. Only a medical POA for an incapacitated principal typically has this authority [2]. Agents must act transparently, with thorough documentation, and always in the principal's best interests [2]. Understanding these legal and ethical considerations is crucial when making these challenging decisions [2].

Frequently Asked Questions

Can a financial power of attorney put someone in a nursing home?

No, a financial power of attorney, by itself, does not grant the authority to make medical or personal care decisions. It only allows the agent to manage the principal's finances. A separate medical power of attorney is required for making healthcare decisions, including nursing home placement.

What if the principal disagrees with the nursing home placement?

If the principal is deemed mentally competent, their wishes must be respected. The POA agent cannot force placement against their will. If the principal is incapacitated, the agent must make the decision based on the principal's best interests, often with guidance from healthcare professionals.

What is the difference between a POA and guardianship?

A power of attorney is a document voluntarily created by a competent individual to appoint an agent. Guardianship (or conservatorship) is a court-ordered legal arrangement for an individual who is no longer capable of making their own decisions. A POA is often a less restrictive alternative to court-ordered guardianship.

Who determines if the principal is mentally incapacitated?

Mental incapacity is typically determined by a physician or other qualified medical professional. The medical POA document usually specifies the process and who can make this determination to activate the agent's authority.

What if there is no medical power of attorney in place?

If an individual becomes incapacitated without a medical POA, family members may need to go to court to petition for guardianship. This can be a lengthy, expensive, and stressful process, which is why creating a medical POA is a key component of proper estate planning.

Can a medical POA be challenged?

Yes, a medical POA can be challenged in court, particularly if there is a belief that the principal was not competent when they created it, or that the agent is not acting in the principal's best interest. Concerns about abuse or exploitation can also be grounds for a legal challenge.

What information does a nursing home need from a POA agent?

A nursing home will typically require a copy of the valid medical POA document, proof of the principal's incapacity (usually from a physician), and documentation of the principal's medical and financial information to process the admission.