No one wants their elderly relative to live the rest of their lives in assisted living facilities. However for some elderly people, this is the only option, especially as they develop health problems and experience diminished mental capacity. Maybe you’re watching your elderly loved one suffer from a lack of daily care at their own home, or maybe you’re an elderly person wondering: can social services force someone into a nursing home? Chicago nursing home lawyers at Curcio Law Offices recognize and understand difficult situations like this, and we want to protect everyone’s rights. For a free consultation, call 312-321-1111 today.
Can Social Services Force Someone Into a Nursing Home?
In short, no one can force an elderly person into an assisted living facility unless friends or families have proven that:
- They can’t safely take care of themselves.
- They require round the clock care.
- Home health care isn’t an option.
- Family members can’t house and take care of them.
- They are suffering from cognitive impairment, such as dementia.
This means that social workers cannot intervene unless they clearly see that an elderly person is suffering outside of skilled nursing care. They are at risk of falling, developing bedsores, becoming malnourished, or just can’t continue to care for themselves, in general. The goal of a social worker is to help elderly people by keeping them safe and healthy. Sometimes, nursing homes are the best solution, even if it’s not the preferable solution.
What is a Power of Attorney (POA)?
Basically, a power of attorney is a document that appoints someone to make financial or medical decisions on behalf of someone else, especially if they’re unable to make their own decisions. This document also provides specific instructions about what someone wants for medical care or financial management. Generally, the person appointed is called the agent. Many people of older age will appoint a trusted friend or family member as their agent so that they can receive care that they desire, especially when they’re too physically or mentally ill to do so.
Uniform POA Act
The National Conference of Commissioners on Uniform State Laws (ULC) proposed this U.S. law in 2006 with the goal of creating consistent POA provisions throughout the country. 29 U.S. states have legislated the Uniform POA Act as of 2021.
The provisions of this act include:
- A POA document is valid and long-lasting as soon as someone signs it.
- The responsibilities of a POA agent end once the senior citizen dies.
- The POA document must specifically state compensation rules for agents, as well as other beneficiary changes.
- Third parties can’t be held liable for an agent’s decisions made under the guise of a valid POA agreement.
What An Agent Can Do
An agent can decide:
- Whether they should admit or release their loved one from a nursing home or a hospital
- Which medications or treatments their loved ones should or shouldn’t receive
- Who can access their loved one’s medical records
It’s important to remember that an agent can only make decisions like this if their loved one can’t make these decisions by themselves for whatever reason. The agent is also required to honor the wishes of their loved one while deciding on major medical care. Another important thing to keep in mind is that the agent can only make medical decisions based on the senior citizen’s financial means. So if the senior can’t afford to live in an assisted living facility, they can’t just send them there.
What if I Don’t Have a Power of Attorney?
If you don’t have a power of attorney, the people listed below (in order of priority) can make financial or medical decisions for you if you’re unable to:
- Conservator or guardian
- Partner or spouse
- A child that’s over the age of 18
- A sibling that’s over the age of 18
- Close friend
- Nearest living relative
Power of Attorney for Health Care vs. Living Will
In short, a living will is a document that provides instructions on end-of-life care. More specifically, this document states whether or not you want health care withheld or withdrawn if you’re suffering from a terminal illness.
How Can You Legally Force Someone Into a Nursing Home?
Maybe you’re a worried friend or family member reading this and you’re wondering how you can legally put your loved one into a home. Basically, the only way you can legally do this is by obtaining guardianship of your loved one.
What is Guardianship?
Guardianship, also called conservatorship, means that a person is court-ordered to provide appropriate care for the health and property of someone else. Guardianships are most common for:
- Senior citizens who can’t take proper care of themselves
- Mentally or developmentally disabled adults
- Adults found to be medically incompetent
Obtaining Guardianship of a Senior Citizen
Oftentimes, a senior citizen’s loved one or Adult Protective Services (APS) will start the lengthy guardianship process. Judges, APS staff, neuropsychiatrists, psychologists, and elder law attorneys will generally be involved in the process. The person pursuing the guardianship will have to pay for the senior citizen’s legal counsel, all physical or mental evaluations by the doctors, and various other court fees.
If all doctors and APS staff members determine that the senior citizen can no longer make sound decisions or provide their own care, then the person pursuing the guardianship will likely win. If the guardian wins, the court will likely provide limits over their authority for the sake of providing as much autonomy to the senior citizen as possible. For example, the court may allow the guardian to decide where the senior citizen lives, what kind of physical care they receive, and how their money is managed. If a guardian acts outside of the court-ordered authority, they may have to spend more time in court.
How Do I Know if I Need to Go to a Nursing Facility?
If you’re a senior citizen, you may worry that either social services or family members will violate your rights and wishes as you get older by forcing you into a long-term care facility. Of course, many families don’t do this with evil intentions. Generally, loved ones make decisions about nursing homes with your well-being and best interests in mind. Your family may determine that a senior living community is the best option for you for the reasons listed below.
You Need Round the Clock Care
As you get older, you may struggle to take care of yourself like you always have. This means that you’ll need friends, family, or even a primary care physician to meet your daily needs. For many loved ones of seniors, providing constant care can feel impossible because they often have jobs, kids, and other responsibilities. Unfortunately, most families feel that they can’t provide appropriate care for their senior loved one, and therefore the best alternative is a long-term care facility.
You Don’t Have the Mental Capacity to Make Sound Decisions
Some seniors develop severe mental and neurological issues in their old age, such as dementia or Alzheimer’s. If this is the case for you, your doctor and loved ones will likely have to make health decisions for you, especially if you’re incapable of understanding reality and making safe decisions. This is because it’s dangerous for dementia and Alzheimer’s patients to remain living in their own homes without constant support.
You Require Respite Care
Respite care is often required for seniors who are recovering from a major procedure or a lengthy hospital stay. For example, maybe you’re recovering from a back injury and your doctor says you’re well enough to leave the hospital, but not to go home alone. That’s when friends or family may suggest a respite care home while you finish healing.
You Can’t Afford Home Health Care
Many loved ones prefer home health care for their senior parents or loved ones. Unfortunately, hiring a full-time nurse in your own home is often more expensive than long-term care facilities, even with health insurance. However, the exact rates depend on the state, the assisted living center, and home care providers. Monetary situations like this often leave social services with no other choice but to take seniors to a facility in order to receive care.
Call an Elder Law Attorney at Curcio Law Offices Today
Not everyone wants their elderly relative to spend the rest of their lives in a nursing facility. It’s often a tough and emotional decision for the loved ones and the senior citizen. Similarly, no one wants to feel like they have no other choice but to obtain guardianship over a senior citizen. Whatever your situation is, an elder law attorney at Curcio Law Offices wants to protect your legal rights. We also provide representation for senior citizens suffering from nursing home negligence and elder abuse. For more information on how we can help you, call 312-321-1111 today. We also handle nursing home bed sore cases and have some of the best Chicago nursing home falls attorneys around.