The writing is on the wall: Your parent is no longer safe living at home. Maybe they've started fires by forgetting to turn off the stove. Perhaps they've had several major falls that have landed them in the hospital. Or they could be hoarding, with a house packed so full that emergency personnel would not be able to enter, or the elder not be able to exit in an emergency. Whatever the individual circumstances you face, your loved one refuses to even consider moving to an assisted living facility. You've tried to reason with them, had the talk about senior communities, tried to get them to tour local communities, begged, pleaded and bribed. Nothing works.
What's a caregiver to do when they believe at best grievous harm or at worst death is an imminent possibility if their parent continues living at home? If you have a guardianship you can force someone to move. However, that is the only way to make an elder move from their home. Those without guardianship face a much different scenario.
It's not an easy – or inexpensive process, according to Susan B. Geffen, an elder law attorney, gerontologist and author of "Take That Nursing Home and Shove it!" The courts must get involved in a costly and sometimes highly contentious guardianship proceeding in which someone, a guardian (or conservator) can dictate where an individual will live. In some cases, a family member will initiate this proceeding. Or the county's adult protective services, part of the social services in the county where you live will petition the court. This typically happens when a neighbor or concerned acquaintance reports a perceived danger. Many times, the older adult will not let the social worker or investigator in the door.
"From a legal standpoint, judges value the independence of an individual, including older adults," Geffen says. "The courts will bend over backwards to make sure that these rights are not trammeled even if some of the adult's decisions are colorful."
If the older cognitively impaired adult has moments of lucidity and can state what they want, the judge will usually rule that they can remain at home and order the appointed guardian to make sure that appropriate systems such as in home care and home modifications are in place.
Why do the courts take this stance? Geffen explains it is in line with the ruling a 1999 U.S. Supreme Court decision that ruled that unnecessary "institutionalization" of people with disabilities is a type of discrimination prohibited by the Americans with Disabilities Act (ADA). According to Geffen, this decision has become shorthand for the principle that institutionalization (including assisted living) should be a last resort for people who need long-term services and support.
Some people have the misconception that with a financial power of attorney (POA) or healthcare POA, they will have the authority to force their parent to move. That is not the case. "No document gives the caregiver that authority." There are certain things you can and can't do with POA. These documents only give someone the power to "be the impaired person's voice for legal, financial or health care matters," Geffen says.
Any attempt to take over the rights of an individual is costly and time-consuming and the process may not have a favorable outcome for the caregiver (in legal terms, known as the petitioner). Judges, lawyers, psychologists, neuropsychiatrists and Adult Protective Services are often involved. The court assigns an independent attorney to represent the elder. The petitioner is responsible for paying the filing fee and costs of bringing the suit. One example of "costs" would be payment of doctor's expenses if a medical, neurological or psychological evaluation of the elder is necessary
In some cases, the courts do favor the concerned caregivers. However, a perfect storm of events must occur. A court-appointed representative will do a multi-faceted analysis with the family. A neuropsychologist interviews the elder, and reports that the individual lacks mental capacity to determine if they should continue living at home. A court-appointed attorney conducts an investigation and takes all of the results into consideration. If everyone in the process agrees that the elder lacks rational decision making capabilities, the judge will rule in favor of a guardianship for the caregiver.
In cases where no guardianship is sought and family somehow convinces the elder to move to assisted living, there is no guarantee the elder will stay, according to Larry Abrams, administrator for Workmen's Circle MultiCare Center in New York. "We usually can't force someone to stay," Abrams says. "If an elder wants to go home, we can't legally stop them if they are lucid and able to make rational decisions. We put a discharge plan in place that states how and where they will receive care. That plan might include home care. However, as long as the person has mental capacity, we must allow them to leave and report the case to Adult Protective Services."
On the other hand, "if the elder does not have the mental ability to make rational decisions, we won't let them leave." A psychiatrist evaluates the resident, and if he or she reports that the individual lacks sufficient mental capacity and will be unsafe living on their own, we say to the resident, "sorry but we can't let you go." It's a tricky situation, because oftentimes, the resident becomes more challenging to manage.
Regardless of the individual situation, forcing an elder from their home is never easy. Unfortunately, it might not be possible to make an elder move. However, there is a chance. But it takes persistence, legal authority, money and time.