Mom won’t move into assisted living: Can I make her?

Last week’s Hurley Elder Care Law blog and newsletter article prompted some phone calls to our office with more questions about Guardianship and Conservatorship. A common call to our office is from an adult child who asks if they have “the right” to move their mother into an assisted living community against the mom’s will. In today’s example, the daughter,  Laura, has a General Durable Power of Attorney in place for her mother, but what rights does Laura really have? Does she have the right to establish a residence for her mom, Helen? Can you use a General Durable Power of Attorney to compel someone to take action?

How do you help someone who won’t help themselves?

Helen has been diagnosed with Mild Cognitive Impairment (MCI) and recently experienced some falls in her home, where she resides alone. Laura believes it is time for Helen to transition to an assisted living community to provide safety and socialization. Initially Helen was excited over the three meals that would be provided for her daily. After touring some communities together, they chose one…. but when the movers came to pack up her home, Helen announced she’s “not going anywhere!”

What is the difference between capacity and competency?

Being able to make a decision is called having capacity. Capacity is not solely based on cognitive impairment. In fact, a person with mild cognitive impairment may still have the capacity to execute legal documents and make their own decisions. Indeed, capacity is a fluid concept—it varies throughout the day, week, month.  Unless her mother has lost capacity, Laura cannot move her into a long-term care community without her mother’s consent. There is a gap between a Durable Power of Attorney – which allows the delegation of legal and financial authority – and a Georgia Advance Directive for Healthcare – which permits the delegation of health care decisions. So, under a durable financial power of attorney Laura can sign a contract so Helen has an apartment at an assisted living community, but she cannot force her to move there.

What about competency?

Competency can only be determined through the court system.  The judge determines whether the individual in question is no longer able to handle his/her own affairs.  If  Helen has been determined to lack capacity, Laura can then petition the court for guardianship.  A guardianship is sometimes necessary when an individual has lost sufficient functional or cognitive capacity to make or communicate significant, responsible decisions about their health and safety. If Laura is declared Helen’s guardian, she could then legally determine where her mother will reside. It gives her the right to establish a residence for Helen. These terms can be confusing!  If you have questions if guardianship may be necessary, please call Hurley Elder Care Law at 404-843-0121 for a complimentary phone consultation.

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