The writing is on the wall: Your aging loved one is no longer safe living at home. Maybe Dad has started fires because he keeps forgetting to turn off the stove. Perhaps Mom is prone to falling and keeps winding up in the hospital. You’ve tried to reason with them, talked about the benefits of assisted living, encouraged them to tour local communities, begged, pleaded, and bribed, but nothing works. Your loved one refuses to even consider moving.
Family caregivers encounter all kinds of challenges when it comes to ensuring their loved ones' well-being. We all want what’s best for our aging parents. But when older adults refuse to accept the help they need and continue to put themselves in harm’s way, family members are left feeling powerless, frustrated, and endlessly worried. What’s an adult child to do when their aging parent insists on living independently?
What are my options when an elderly parent refuses assisted living?
The only way you can legally force your aging dad or mom to move to assisted living against their will is to obtain guardianship (sometimes called conservatorship). By obtaining legal guardianship, you can place your loved one in an assisted living community even if it’s not their personal will to do so.
Seeking forced guardianship of an elder isn’t an easy or inexpensive process, according to Susan B. Geffen, Esq., M.S.G, a California-based elder law attorney specializing in guardianships and the author of Take That Nursing Home and Shove It! The process of obtaining guardianship involves going to court and is often lengthy. In some cases, a family member will initiate this proceeding. In others, the county’s adult protective services (APS) agency will petition the court to have a guardian appointed. The latter typically happens when a neighbor or other concerned party reports that a senior’s experiencing elder abuse or neglect, whether it’s at the hands of someone else or self-imposed.
Guardianship can only be established over a person who’s found to be incapable of making sound decisions and caring for themselves. If a senior is competent, they can choose how and where they want to live, even if these decisions put them at risk of injury, illness, or death.
“From a legal standpoint, judges value the independence of an individual, including older adults,” Geffen explains. “The courts will bend over backward to make sure that these rights are not trammeled, even if some of a person’s decisions are colorful.”
For example, if a cognitively impaired adult with an appointed guardian has moments of lucidity and can state that they want to remain at home, the judge will usually rule that they can do so. The appointed guardian may then be ordered to establish appropriate systems that ensure their safety and well-being, such as in-home care and home modifications.
Why do the courts take this stance? Geffen explains it’s in line with a 1999 U.S. Supreme Court decision that ruled 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 (which includes senior living settings such as assisted living communities and nursing homes) should be a last resort for people who require long-term care services and support.
How to obtain guardianship
Any attempt to take over the rights of another individual is costly and time-consuming, and the process may not have a favorable outcome for the person seeking guardianship (known as the petitioner). Judges, lawyers, psychologists, neuropsychiatrists, and adult protective services staff are often involved.
The court assigns an independent attorney called a guardian ad litem to represent the elder (known as the respondent). The petitioner is responsible for paying the filing fee and the costs of bringing the suit. Examples of such costs include the guardian ad litem’s fees and any expenses associated with the respondent’s medical, neurological, or psychological evaluations for determining whether they’re competent to handle their own affairs.
In some cases, the courts do favor the concerned family caregivers who petition for guardianship. However, a perfect storm of events must occur for this to happen. A court-appointed representative will conduct a comprehensive analysis of the family. A neuropsychologist must interview the elder and report that they lack the mental capacity necessary to determine if they should continue living at home. A court-appointed attorney then investigates and considers all these results. If everyone in the process agrees that the elder lacks decision-making capabilities and the petitioner is trustworthy and capable of serving as a guardian, then the judge will rule in favor of guardianship.
The court may place any kind of limits on a guardian’s authority over the ward. According to the National Guardianship Association, the guiding principle in all these cases is to use the least intrusive measures and assure as much autonomy as possible for the respondent. The guardian’s authority is strictly defined by the court, and the guardian may not operate outside that authority. Depending on how the terms of a guardianship are defined, a guardian may be able to decide things like where a ward lives, how their money is managed, and/or what medical care they receive.
Misconceptions surrounding the power of attorney
When it comes to putting a parent in a nursing home against their will, some people mistakenly believe that being designated as a financial power of attorney (POA) or medical POA gives them this authority. That’s not the case.
“No document gives the caregiver that authority,” notes Geffen.
There are certain things you can and can’t do with POA, and these things vary depending on how the document is written and when it goes into effect. POA documents only give someone the power to “be the impaired person’s voice for legal, financial, and/or health care matters,” Geffen says.
Laurence Abrams is the administrator at The New Jewish Home’s Sarah Neuman campus, a nursing home in Westchester, New York. He says that in cases where guardianship isn’t obtained and family members somehow convince an older adult to move to a senior living community, there’s no guarantee that they’ll stay there.
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“We usually can’t force someone to stay,” Abrams admits. “If an elder wants to go home, we can’t legally stop them if they’re lucid and able to make rational decisions. We put a discharge plan in place that states how and where they’ll continue receiving care. That plan might include in-home care. However, as long as the person has mental capacity, we must allow them to leave and then report the case to adult protective services.”
On the other hand, “If the elder doesn’t have the mental ability to make rational decisions, we won’t let them leave,” Abrams assures. “A psychiatrist will evaluate the resident and, if they find that the resident lacks sufficient mental capacity and will be unsafe living on their own, we say, ‘Sorry but we can’t let you go.’ It’s a tricky situation because oftentimes the resident becomes more challenging to manage.”
Balancing a senior’s independence and well-being
Regardless of a family’s unique situation, getting elderly parents to move from their homes is rarely easy. The best scenario is to broach the subject gently, frequently, and long before it needs to be acted on. Once moving has been suggested, it’s time to back off for a while. Let the seed germinate. Enjoy time together in other ways for a while before bringing it up again. In this way, the entire family can work together to understand how a loved one wishes to live out their golden years and then plan accordingly. Unfortunately, many families struggle to discuss this topic, and seniors’ willingness to embrace change often decreases as the decision nears.
For some families, in-home care may be a better alternative than forcing a loved one into assisted living. Home health aides and certified nursing assistants are licensed to provide a range of personal care services. Many will also provide companionship and assistance with tasks like cooking, transportation, and housekeeping. In-home care can be an excellent solution for seniors who wish to age in place.
Ultimately, family caregivers must learn to respect their aging loved ones’ wishes and try to reconcile those wishes with the best decisions for their health and safety. If a senior isn’t capable of partaking in these decisions because of dementia or another mental health condition, then guardianship may be the only way to ensure their well-being — but only as a last resort.
If at any point you need help navigating care decisions for a loved one, reach out to a Senior Living Advisor (SLA) at A Place for Mom, AgingCare’s senior living referral counterpart. A Place for Mom’s SLAs can offer their expertise in senior care and help brainstorm strategies to convince your loved one that assisted living is the right option. They’ll also know what assisted living communities are local to your loved one and which ones have the services and amenities they’re looking for. They can even help you schedule tours. And, their unbiased advice is offered at no cost to you.
Reviewed by caregiving expert Carol Bradley Bursack.
Serving People with Disabilities in the Most Integrated Setting: Community Living and Olmstead (https://www.hhs.gov/civil-rights/for-individuals/special-topics/community-living-and-olmstead/index.html)
What is Guardianship? (https://www.guardianship.org/what-is-guardianship/)