Can you remove a family member from a care home? Understanding the legal authority
The ability to remove a family member from a care home is not an automatic right for relatives. It is fundamentally tied to who holds the legal authority to make healthcare and placement decisions for the resident. This depends on whether the resident is mentally competent to make their own choices or if they lack the capacity to do so.
The resident is mentally competent
If the resident is judged to be mentally competent, their wishes are paramount. A competent resident has the legal right to discharge themselves from the facility at any time. In this scenario, family members cannot override the resident's decision, even if they believe it is not in their best interest. The role of the family is to support the resident and assist them in the discharge process, which includes notifying the facility and their doctor. The attending physician will often document the discharge as occurring 'against medical advice' (AMA) if they do not agree with the move, but a competent resident's choice still stands.
The resident lacks mental capacity
When a resident has cognitive impairments like advanced dementia or Alzheimer's, they are considered to lack the capacity to make their own decisions. In this case, the legal right to remove them falls to the designated legal representative. This is typically an individual with a Health and Welfare Lasting Power of Attorney (LPA) or a court-appointed guardian. If no such legal authority exists, a family member may need to petition the court for guardianship to gain the legal right to make these decisions.
Comparison: Competent vs. Incapacitated Resident Discharge
| Feature | Competent Resident | Incapacitated Resident |
|---|---|---|
| Decision Maker | The resident themselves. | Legal representative (LPA, Guardian) or the court. |
| Legal Documents | No specific documents needed beyond identification. | Health and Welfare Lasting Power of Attorney (LPA), or court order for guardianship. |
| Overriding Wishes | Family members cannot override the resident's decision. | The legal representative makes the decision in the resident's best interest. |
| Discharge Process | The resident requests discharge. Facility coordinates a plan with the resident's representative. | The legal representative requests discharge and works with the facility on a safe, orderly plan. |
| Facility Pushback | Can be released AMA. Facility may require a care plan for safety. | Facility may raise concerns about a safe transition or if they believe the move is not in the resident's best interest. |
Process for a safe and orderly discharge
Even with the proper legal authority, removing a resident from a care home is not as simple as showing up and taking them. It is a process that requires coordination and planning to ensure the resident's safety and well-being. A discharge plan is mandatory.
- Notify the Facility: Provide written notification to the care home's administration regarding your intention to remove the resident. This starts the formal discharge process.
- Attend Discharge Planning Meetings: The facility's social worker or case manager will work with you to develop a comprehensive discharge plan. This plan details the resident's medical needs, medications, and care requirements for their new location.
- Confirm the New Arrangement: The discharge plan must specify a new location that can appropriately meet the resident's needs. This could be a family member's home with home health services or a different care facility.
- Manage Financial and Medical Records: Ensure all financial accounts are settled and that you receive a copy of all medical records.
- Coordinate the Move: Once the discharge plan is finalized and approved, coordinate the logistics of the move to ensure a smooth transition for the resident.
What if you suspect abuse or neglect?
If the motivation for removal is suspected abuse or neglect, the situation is more urgent. Immediate action is necessary to protect the resident. Here is a list of crucial steps:
- Gather evidence, such as photographs, medical records, and detailed notes.
- Immediately report concerns to the care home's administrator.
- If the facility's response is inadequate, contact the state's long-term care ombudsman program, which advocates for residents' rights.
- For severe cases or immediate danger, contact Adult Protective Services (APS) or local law enforcement.
- Consider consulting with a nursing home abuse attorney for legal advice.
When the facility tries to block removal
Sometimes a care home might oppose a family's request to remove a resident, perhaps citing safety concerns if the resident lacks capacity. If this occurs, it's essential to understand your rights and the facility's obligations. A facility can legally block a discharge if they believe the resident would be unsafe without a proper discharge plan. You can appeal their decision through state agencies, and enlisting the help of an ombudsman can be very effective in this situation. In extreme cases, legal action may be required.
Conclusion: Prioritizing the resident's well-being
Ultimately, whether you can remove a family member from a care home depends on a combination of their mental capacity, legal authority, and adherence to proper procedures. The resident's wishes are the most important factor if they are competent. If they lack capacity, the legal representative must act in their best interest. Involving patient advocates like the long-term care ombudsman, and working closely with the facility's discharge planning team, are key to navigating this process smoothly and protecting your loved one's rights. Prioritizing the resident's physical and emotional well-being throughout the transition is essential to a successful outcome. Further information on nursing home residents' rights can be found at the Consumer Voice website: theconsumervoice.org.
