Written by attorney Judith A. McDougall-Flynn

May a Nursing Home Require a Guardianship? (Massachusetts)

I am frequently consulted regarding whether a nursing home may require a family to get guardianship of their loved one as a condition for admission. Beth had found an available bed for her mother at a reputable nursing home close to her home. The facility informed Beth that she needed to obtain guardianship of her mother before they would accept her, however, because her mother is no longer competent to make her own decisions regarding health and medical treatment. Beth's mother had previously executed both a Durable Power of Attorney and Health Care Proxy appointing Beth as her agent, but the facility did not feel that the documents were sufficient. There are a number of reasons why a guardianship may be necessary even though Beth's 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, Seroquel, 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 often 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 a person to seek guardianship, they have every right to defer a person's admission until there is proper decision-making authority in place. The specific facts of each case will dictate whether the facility's request is reasonable or not. 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.

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