Understanding the different types of POA
Before addressing nursing home placement, it is essential to distinguish between types of Power of Attorney. The two most relevant are the financial POA and the medical or durable healthcare POA. A financial POA grants an agent the right to manage the principal's monetary affairs, such as paying bills or managing bank accounts. This type of POA does not give the agent the authority to make medical or healthcare decisions, including where the principal will live.
A medical POA, on the other hand, is the relevant document for healthcare decisions. It allows the agent to make decisions about medical treatments, doctors, and—critically—long-term care facilities, but only if the principal becomes unable to make those decisions themselves.
Incapacity vs. competency: The critical legal distinction
This is the most important factor in determining if an agent can place someone in a nursing home. A Power of Attorney is a tool that allows a person (the agent) to act on behalf of another (the principal) if the principal loses the capacity to make their own decisions. The principal must be of sound mind when the POA is initially created.
As long as the principal remains mentally competent, they retain full control over their own life and decisions, including where they live. An agent cannot override the wishes of a competent principal, even if they believe it is in the principal's best interest. For the POA to become active for medical decisions, a physician or other medical professional must typically declare the principal incapacitated.
The role of a medical assessment
The process of using a medical POA for nursing home placement begins with a medical assessment. A physician must verify that the individual requires a higher level of care and is no longer competent to make their own decisions. This medical documentation is required by nursing homes and is a critical step in the process. Without it, the POA has no legal basis to make placement decisions if the principal objects.
The specifics of the POA document
The authority to make decisions about long-term care placement is not automatically included in every medical POA. The document must explicitly grant the agent this power. Because state laws vary, the language in the POA can have different legal implications. A nursing home will require a copy of the POA to confirm the agent's authority before accepting a resident. If the document is unclear or does not grant the necessary power, the facility may refuse the admission.
The fiduciary duty of the agent
Acting as a POA is a position of significant responsibility and legal obligation. The agent has a fiduciary duty to act honestly, responsibly, and in the principal's best interests. This is particularly sensitive in nursing home placement, where the agent's decision can profoundly affect the principal's quality of life. The agent must make decisions based on the principal's known wishes, as outlined in the POA or through prior discussions, rather than their own personal desires.
If family members suspect the agent is not acting in the principal's best interest, they can petition a court to review the agent's actions and, if necessary, have the POA revoked. Legal consequences, including civil and criminal charges, can arise from misuse of a POA.
POA vs. Guardianship
If a person becomes incapacitated without a valid durable medical POA in place, family members may need to seek guardianship through the courts. This is a more complex, time-consuming, and expensive process. Unlike a POA, which is created by the principal, a guardian is appointed by a judge. The court supervises the guardian's actions and reporting, providing an added layer of oversight.
| Aspect | Power of Attorney (POA) | Guardianship (Conservatorship) |
|---|---|---|
| Initiation | Created by the principal while mentally competent. | Court-ordered process after the person is declared incapacitated. |
| Decision-Maker | An agent chosen by the principal. | A guardian appointed by a judge. |
| Autonomy | Principal retains all decision-making power while competent. | Principal's legal rights are removed or restricted by the court. |
| Authority | Limited to specific powers granted in the document; only active when specified (often upon incapacity). | Broader authority, defined by the court, potentially covering all personal and financial decisions. |
| Oversight | Limited court oversight unless a dispute arises. | Subject to ongoing court supervision and reporting. |
| Revocation | Principal can revoke at any time while competent. | Requires a court order to revoke. |
For more information on the legal nuances of guardianship, an excellent resource is the Administration for Community Living.
What if a principal resists placement?
If a principal is medically incapacitated but resists moving to a nursing home, a POA's authority becomes crucial. However, the agent must still approach the situation with sensitivity and focus on the principal's best interests. This is often a difficult situation for families. In cases where the principal's well-being is at risk, and they lack the capacity to understand the necessity of the move, the POA may proceed based on the medical evidence and their legal authority. If the principal is competent and refuses, a POA cannot legally force them to move, and court intervention for guardianship would be the only alternative.
Conclusion
While a POA can legally place someone in a nursing home, it is not a blanket authority. The power rests on two critical factors: the principal's mental incapacity and the specific authority granted within the POA document. For a mentally competent adult, a POA cannot force placement against their will. This emphasizes the importance of open communication and advance planning to ensure a person's wishes for long-term care are understood and respected by their designated agent.
