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The Legal Check Up
By
Judith Flynn |
 Dear
Attorney Flynn:
I have found an available
bed at a reputable nursing home, but the facility has
informed me that I need to obtain guardianship of my mother
before they can accept her because she is no longer
competent. My mother has both a Durable Power of Attorney
and Health Care Proxy appointing me as her agent, but
apparently these are not sufficient. Can the facility
force us to seek guardianship?
Sincerely, Bill from Braintree
Dear Bill:
There are a number of
reasons why a guardianship may be necessary even though your
mother has a valid Durable Power of Attorney (DPOA) and
Health Care Proxy (HCP) in place.
If the DPOA was executed a long time ago or if it was not
drafted by an elder law attorney, it may not have many of
the specific powers that are frequently required for elder
law purposes.
Some of the important powers to be enumerated include: the
power to manage real estate (including the power to rent,
mortgage, sell, or obtain a reverse mortgage); the power to
deal with all banks and brokerage
institutions; the power to deal with the Internal Revenue
Service and the Massachusetts Department of Revenue; the
power to authorize the principal’s admission to a hospital,
nursing home, or other facility and to enter into all
necessary care and financial agreements; the power to apply
for any public benefits the principal may be entitled to and
to access all documentation and verifications necessary to
obtain those benefits; and, the power to make gifts, which
is usually necessary for Medicaid planning.
A well-drafted DPOA will also include a clause nominating a
guardian in the event a guardianship ever becomes necessary.
This is just a sampling of the many powers that should be
included for elder law purposes, and powers will be
customized, added or deleted based on each client’s specific
circumstances.
A guardianship may also become necessary even though there
is a valid Health Care Proxy in place if the principal is
being treated with anti-psychotic medications such as
Risperdol, Seraquel, or Zyprexa. While a health care
agent may consent to the administration of anti-psychotic
medications on behalf of the principal, the Health Care
Proxy is automatically revoked if the principal shows any
sign of refusing or rejecting the medication. For example,
if the principal swipes the medication out of a nurse’s hand
as she tries to put it in the principal’s mouth, this is
considered a revocation of the Health Care Proxy and a
guardianship becomes necessary.
Even if a person has not rejected anti-psychotic medications
before admission to the nursing home, the facility will
usually require the family to obtain the guardianship prior
to admission to avoid a crisis if the resident later refuses
the medications.
So, while the facility may not force you to seek
guardianship, they have every right to defer your mother’s
admission until there is proper decision-making authority in
place. If their request is based on any of the factors
outlined above, it is reasonable. Policies such as these may
seem burdensome at times, but they ultimately serve to
protect both elders that no longer have capacity to advocate
for themselves and the people and facilities that care for
them.
Be aware that many facilities will allow the elder to move
in so long as the guardianship is pending, but you will want
to consult with an elder law attorney who can petition the
court for an emergency appointment if they require it prior
to admission.
Best of luck to you.
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About The Author
Judith M. Flynn is an Elder Law Attorney in Hingham. To
receive her quarterly newsletter or a packet of
informational articles, call (781)740-2288 or contact her at
jflynn@TheLegalCheckUp.com.
Learn more about her practice at
www.thelegalcheckup.com
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