Can my mother check herself out of a nursing home? Resident rights and legal considerations
For many families, the question of whether a loved one can leave a nursing home voluntarily is a complex issue, laden with emotional and legal considerations. At its core, the answer depends on one crucial factor: the resident's mental and legal capacity to make their own decisions.
The right to voluntary discharge
Federal law protects the rights of nursing home residents, including their right to self-determination. If your mother is deemed mentally competent, she can choose to discharge herself from the facility, even if the family or medical staff disagrees. This is known as a discharge against medical advice (AMA). While the nursing home may document the risks involved, they cannot physically prevent a competent resident from leaving.
The role of mental and legal capacity
A resident is considered mentally competent if they demonstrate the ability to understand their current medical treatment, grasp the risks of leaving AMA, and communicate a decision free of coercion. A determination of incapacity, typically confirmed by a physician, is required before a facility can refuse a resident's request to leave.
If a resident lacks the capacity to make informed decisions, a pre-existing Power of Attorney (POA) for healthcare, or a court-appointed legal guardian, is authorized to make decisions on their behalf. However, a POA is only effective when the principal (your mother) is incapacitated. It does not grant control over her decisions while she is still competent.
The discharge against medical advice (AMA) process
When a competent resident requests to leave AMA, the nursing home will follow a specific protocol to ensure they are aware of the risks. This process includes:
- Risk assessment and documentation: Medical staff will assess the resident's decision-making capacity. If they are deemed competent, the facility will explain the potential health consequences of leaving without a proper discharge plan.
- Signing an AMA waiver: The facility will typically ask the resident to sign a waiver stating that they are leaving against medical advice. If the resident refuses, staff will document that the forms were presented and the risks were explained.
- Post-discharge plan and communication: The facility will provide a written summary of the resident's medical status, medications, and any follow-up care plans. They will also inform her primary care provider and, with consent, family members.
The difference between voluntary and involuntary discharge
Understanding the distinction between voluntary and involuntary discharge is crucial for protecting your mother's rights.
| Factor | Voluntary Discharge (Resident-Initiated) | Involuntary Discharge (Facility-Initiated) |
|---|---|---|
| Initiator | The resident or their authorized representative. | The nursing home. |
| Reason | Resident's own preference, regardless of medical advice. | One of six specific reasons outlined by federal law, such as non-payment, improved health, or endangering others. |
| Requires Consent | Yes, if the resident is competent. | No, but requires a formal process and 30-day notice in non-emergency situations. |
| Appeal Rights | Not applicable; the resident is choosing to leave. | Yes, the resident and representative have the right to appeal to the state. |
| Notice Period | Can be immediate, though facility policy may request advance notice. | Minimum of 30 days written notice, with some exceptions for emergencies. |
The family's role and next steps
As a family member, you can support your mother while balancing her wishes with her safety. Here are some steps you can take:
- Assess her capacity: Have an honest conversation with your mother and her medical team to determine her capacity to understand her decision fully. Her doctor's evaluation is key.
- Facilitate the AMA process: If she is competent, work with the nursing home to ensure the AMA discharge process is followed correctly. This includes receiving the proper paperwork and discharge plan.
- Ensure a safe transition: Focus on creating a safe environment for your mother outside the nursing home. This might involve setting up home care services, home modifications, and managing medications safely.
- Consider advocacy: If you believe your mother is being improperly influenced or her rights are being violated, you can seek help from a long-term care ombudsman or an elder law attorney. These advocates can ensure the facility follows legal procedures.
Conclusion
Ultimately, a mentally capable adult has the right to decide where they live, even if it goes against the advice of family and medical professionals. The question "can my mother check herself out of a nursing home" is resolved by her legal capacity to do so, not the family's or facility's preference. For family members, the priority becomes navigating the situation respectfully while focusing on ensuring the resident's safety and well-being after they leave. It is important to remember that a Power of Attorney does not grant the right to override a competent person's wishes. In cases where her judgment is impaired, a formal evaluation by a physician is necessary to establish incapacity and allow a POA to take control. Seeking the assistance of a long-term care ombudsman or elder law attorney can provide valuable guidance in these complex situations.
Frequently asked questions
Q: Can a nursing home force my mother to stay if she wants to leave?
A: No, a nursing home cannot force a resident to stay if they are mentally and legally competent to make their own decisions. The facility must follow the protocol for a discharge against medical advice (AMA), which includes documenting the risks but respecting the resident's wishes.
Q: Does a Power of Attorney (POA) for healthcare override my mother's wish to leave?
A: No, a POA for healthcare does not override the wishes of a mentally competent individual. The POA's authority only becomes active and effective when the person is legally determined to lack the capacity to make their own decisions.
Q: What is the first step if my mother says she wants to leave the nursing home?
A: The first step is to communicate with your mother and the nursing home's social worker or staff to understand her reasons and discuss her capacity to make this decision. A physician's evaluation may be necessary to assess her mental competence.
Q: What happens if my mother's health is at risk if she leaves?
A: If your mother is mentally competent, she can still choose to leave against medical advice (AMA). The nursing home's role is to explain and document the health risks she is facing, provide a discharge plan, and ensure she has the information needed to make an informed decision.
Q: Can a family member contest a voluntary discharge from a nursing home?
A: You can contest the discharge if you believe your mother lacks the mental capacity to make an informed decision. However, a family member cannot legally prevent a competent resident from leaving. You may need to seek a legal determination of incapacity, such as guardianship, if the circumstances warrant it.
Q: What is the difference between a nursing home and assisted living regarding discharge rights?
A: Nursing homes are required to follow federal regulations regarding discharge, which offer more protection to residents. State regulations and facility policies govern discharges from assisted living facilities, which may offer less protection from involuntary moves. It is important to review the specific contract and state laws for assisted living.
Q: Who can I contact for help if the nursing home is resisting my mother's voluntary discharge?
A: If the facility is improperly resisting a discharge, you can contact the Long-Term Care Ombudsman Program in your state. These programs are advocates for residents' rights and can help mediate disputes with the facility. An elder law attorney can also provide legal guidance and representation.
