Understanding the Legal Landscape
Before taking any action, it's crucial to understand the legal framework that governs residents in assisted living. Unlike a prison, an assisted living facility is a residence, and its occupants are tenants with certain rights. The primary factor that dictates the process is the resident's mental capacity to make their own decisions.
If the Resident is Competent
For a resident who has the mental capacity to make their own decisions, the process is straightforward. A competent resident has the legal right to decide where they live. To initiate a move, they must formally terminate their contract with the assisted living facility, typically by providing a written notice. This notice period is stipulated in the resident agreement signed upon move-in, and it’s important to review this document to understand the facility’s specific requirements.
If the Resident is Deemed Incompetent
When a resident has cognitive impairment, such as advanced dementia, they may no longer be considered legally competent to make decisions regarding their residence. In this scenario, the move must be handled by a legally appointed representative. This can be a Power of Attorney (POA) for health or financial matters, or a court-appointed guardian or conservator. It is essential to understand the scope of the POA, as it does not automatically grant the right to override a lucid senior's wishes. A guardianship, granted by a court, is the legal route to take when a senior is unwilling or unable to consent to a move due to their mental state.
The Role of a Power of Attorney vs. Guardianship
While a Power of Attorney (POA) is a powerful tool, it does not grant the right to make decisions against a competent person's will. It only becomes active when the principal becomes incapacitated. In contrast, obtaining guardianship is a court-supervised process where a judge determines if a person is incapacitated and appoints a guardian. This legal process is necessary for a loved one who refuses to leave, despite being deemed incompetent to make that decision safely.
Reasons to Consider Moving Someone Out
Families consider moving a loved one for a variety of reasons. Understanding the motivation behind the move is important for a successful transition.
- Declining Health Needs: The resident’s health may have changed, and their needs may now exceed what the assisted living facility is licensed to provide. For example, a resident with increasing mobility issues might now require the more intensive care offered by a skilled nursing facility.
- Quality of Care Concerns: If a family suspects neglect, abuse, or dissatisfaction with the standard of care, it can be a primary motivator for a move. Documenting all incidents is crucial if this is the case.
- Financial Changes: The financial situation may have changed, making the current facility no longer affordable. This might necessitate a move to a more affordable option or to a family member's home.
- Desire for Independence: The resident's health may have improved, and they may now wish to return home with a lower level of care, such as in-home assistance.
- Relocation for Family: The family responsible for the resident might be moving to another state or city and wish to bring their loved one closer.
Navigating the Moving Process
Moving a resident out of assisted living requires a careful and organized approach. Following these steps can help ensure a smoother transition.
- Review the Resident Agreement: Start by meticulously reading the contract signed with the assisted living facility. Pay close attention to the termination clause, including required notice periods (often 30 or 60 days) and any potential early termination fees.
- Initiate the Conversation: Communicate with the facility's administration about the intention to move. If the resident is competent, they should lead this discussion. If acting as a legal representative, be clear about your authority.
- Find a New Solution: Whether moving home or to a different facility, research and secure the new living arrangement well in advance. This includes assessing care needs, financial implications, and preparing the new living space.
- Create a Discharge Plan: Work with the current facility's staff, doctors, and a social worker to develop a detailed discharge plan. This plan should address medical needs, medication transfers, and follow-up care.
- Address the Logistics: Plan the moving day, including transportation, packing, and settling in. For a person with dementia, creating a calm environment and packing familiar objects first can help ease the transition. Avoid involving a cognitively impaired loved one in the stressful parts of moving.
Comparison of Moving Scenarios
| Feature | Competent Resident | Incompetent Resident with POA | Incompetent Resident (No POA) |
|---|---|---|---|
| Decision Maker | The resident themselves | The appointed Power of Attorney | A court-appointed guardian |
| Initiating the Move | Resident gives written notice | POA gives written notice | Guardian petitions the court and gives notice |
| Notice Period | Based on contract | Based on contract | Based on contract and court orders |
| Legal Action | Not necessary | Not necessary, but POA must act within authority | Requires court proceeding to establish guardianship |
| Resident's Consent | Required and self-directed | Not required if incapacitated | Not required if legally incapacitated |
Special Considerations for Dementia Patients
Relocating a loved one with dementia or other cognitive impairments is particularly challenging. The disruption of routine and familiar surroundings can cause increased confusion, agitation, and anxiety.
- Maintain Familiarity: Before the move, create a new space with familiar furniture, photos, and belongings to provide comfort and continuity.
- Gradual Introduction: Introduce the new space gradually. Consider bringing them for visits before the actual move to help them acclimatize.
- Focus on Routine: Maintain established routines as much as possible, including mealtimes, sleep schedules, and daily activities.
- Provide Emotional Support: Validate their feelings and reassure them throughout the process. Patience is key, as the adjustment period can be lengthy.
Involuntary Removal and Reporting Issues
In cases where you believe a resident is in danger due to neglect or abuse, immediate action is required. While legally complex, removing a resident for safety reasons may be necessary. If you have documentation or reason to believe your loved one is a victim of abuse or neglect, you should report the incident to the state's long-term care ombudsman and the Department of Health. Your state's Attorney General also maintains a Medicaid Fraud Control Unit for reporting and investigation purposes. A long-term care ombudsman is a trained official who advocates for residents' rights and can help investigate and resolve complaints. This action is separate from a standard contractual move and prioritizes the resident's safety.
Conclusion: A Thoughtful, Informed Decision
Ultimately, the ability to take someone out of assisted living is a right that is tied to their mental capacity and is influenced by existing legal agreements. Whether motivated by changing care needs, finances, or concerns over quality of care, a thoughtful, documented approach is critical. By understanding the legal standing of the resident and following the correct procedures, families can ensure a smoother, less stressful transition for their loved one. Always consult the resident agreement and seek legal counsel if there is any uncertainty about the resident's rights or the necessary steps to take.
