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Can Nursing Home Release Resident to Someone Who Isn't POA?

  • March 26th, 2024
Q
I have an elderly lady who has dementia and cannot make her own decisions. Her nephew is her POA and placed her in a nursing home. However, her son, who does not have POA, took her out of the nursing facility, and now the lady is wandering and being picked up by law enforcement. Her nephew wants to place her again, but is afraid that the nursing facilities will just allow her to be discharged with the son again. They cannot and do not want to pursue guardianship. Do the nursing facilities abide by the POA and keep her there, or can they allow her to leave with her son?
A

This is a real grey area. Durable powers of attorney allow the agent to make financial and legal decisions. Health care proxies or powers of attorney for health care (the names are different from state to state) empower the agent to make medical decisions. However, decisions on where someone lives seem to fall in the middle, not covered by either appointment.

So, given the circumstances, nursing facilities are likely to require a guardianship appointment. If no one involved wants to pursue this, perhaps the nephew should make a report to the local elder protective services unit, which could then pursue such an appointment. Though then the family would have no control over who is appointed.

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Harry S. Margolis practices elder law, estate, and special needs planning in Boston and Wellesley, Massachusetts. He is the founder of ElderLawAnswers.com and answers consumer questions about estate planning issues here and at AskHarry.info.


Last Modified: 03/26/2024

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