Posted on Feb 1, 2019 in Senior Tips
Sometimes it becomes obvious when the time for assisted living has come. Perhaps your loved senior is no longer safe at home, either forgetting to turn off the stove or being prone to falling and injuring themselves. Perhaps you have tried bringing up the conversation before but were shut down. If you’ve tried reasoning with them, begging them, or even bribing them to consider moving into a senior care facility, then you may feel like you’re reached wit’s end.
Caregivers have to deal with all kinds of challenges when it comes to taking care of their loved ones. However, what are caregivers to do when their loved one refuses to accept the help that they need. Fortunately, there are ways that caregivers can legally force their senior loved ones to move into a long-term care facility. The best way to accomplish this is to obtain guardianship of your senior.
What is Guardianship?
Acquiring guardianship of an elderly person is not an easy process. It also comes with several costs and many hoops to jump through. The process begins with going to court and is lengthy and difficult. In most cases, a family member begins the proceedings and the local court’s adult protective services will be dispatched to determine if a guardian is needed. In some cases, adult protective services are contacted when there is legitimate concern over possible abuse being inflicted upon a senior.
Guardianship will only be granted over a senior if they are found to be incapable of making decisions for themselves or accomplishing ADL’s. If a senior is still competent and of sound mind and body, they can decide where and how they wish to live, even if that decision puts them in significant harms way, even at risk of injury or death. Courts will do everything possible to ensure that the rights of seniors are not trampled upon and that they are able to exercise their freedom and independence.
Courts will fiercely protect these rights, even if the senior in question has cognitive impairments or is physically disabled. If the senior expresses a desire to remain at home, the judge will almost always side with them and order the guardian to establish appropriate in home care and home modifications to ensure their well being. This is due to a 1999 SCOTUS decision that ruled unnecessary institutionalization of people with disabilities as a type of discrimination prohibited by the Americans with Disabilities Act.
Power of Attorney
Some people have the mistaken belief that the power of attorney, whether financial power of attorney or medical power of attorney, gives someone the authority to force their senior loved one to into a senior care facility. These documents only give power over the impaired person’s voice for legal, financial, and healthcare related matters, not necessarily living conditions.
Rules on Leaving Senior Care Facilities
In the case where guardianship is not obtained beforehand, yet the family member is convinced to enter a senior living community, there is no legal guarantee that the senior will stay there. Staff at senior care facilities can not legally force someone to stay if they are of sound mind and able to make rational decisions, even if they are physically disabled. If the senior wishes to leave, staff will simply craft a discharge plan and likely advise the senior to stay.
This discharge plan could possibly include at-home care provisions for continuing care. On the other hand, if the person does not meet the mental ability standards to make rational decisions for themselves, staff is allowed to restrict them from leaving. A psychiatrist is brought in to evaluate the patient and determine whether they should stay or not.
Obtaining Guardianship of Your Senior
As with any attempt to take over the rights of another individual, the process of obtaining guardianship of a senior is costly and time-consuming. The process will involve lawyers, judges, psychologists, neuropsychiatrists, and adult protective services. The court will usually assign an independent attorney, known as a guardian ad-litem, to represent your senior. The family member, or whomever petitions the court to start the process, is required to foot the bill for the filing fee and the costs of bringing up the suit. Some costs include the fixed fees of the independent attorney and any fees associated with the senior’s medical, neurological, and psychological evaluations.
In order to successfully complete this process, a neuropsychologist must evaluate the senior and report that they lack the mental faculty necessary to determine their living conditions. An independent, court-appointed attorney must then take all these results into consideration. If everyone agrees that the elder lacks rational decision-making capabilities and that the family member is a responsible and trustworthy individual capable of being an adequate guardian, then the court should rule in favor of the family member who originally petitioned.
Regardless of what your family’s situation is, forcing an elder to move into a senior care facility is not an easy process. The whole experience can be emotionally and physically taxing. The best way to approach this scenario is have conversations about it long before it becomes a pressing issue. This way, everyone in the family can feel like they are collaborating to come up with a solution. Unfortunately, many families struggle to discuss this issue and seniors may become less inclined to discuss it as more time passes.
When evaluating long term care for your loved one, it can become overwhelming to find the best possible option. Fortunately, at Landmark Senior Living we are dedicated to providing informational resources for those seeking to understand senior care options. By making the process easier, we hope to help those in need to find the ideal solution for their senior care needs. Are you looking into a senior living facility for your family member that will support their senior health? Landmark Senior Living is available today to take you and your loved one for a tour at one of our seven premier and affordable communities. Call now for more information!