Article Updated: May 1, 2022
Elder Care Power of Attorney for Nursing Home
There are several different types of elder care power of attorney documents. Depending on the situation you are facing, you must be careful to execute the necessary document, without being overinclusive in what rights you give to others in handling your personal finances and assets.
Below, you will learn the 101’s about an elder care power of attorney for nursing home residents. I have helped nursing home residents sign power of attorney documents so that we, with the help of designated family members, can investigate abuse happening in the nursing home.
If my article below does not answer your questions, I invite you to call me for a free consultation.
Clickable Table of Contents
Elder Care POA for Nursing Home
1 – Elder Care Power Of Attorney
2 – Obligations Of A POA
3 – What Rights Does A POA Have?
4 – Misuse of Power of Attorney Rights
5 – Can You Override a POA?
6 – Elder Care Power of Attorney Q&A
Resources
7 – Get Help With Your Elder Care Power Of Attorney Case
8 – Supporting Literature, Citations & Research
9 – About the Author
10 – Legal Help in Maryland & Nationally
Elder Care Power Of Attorney
Laws that are currently in place often fail the elderly with POA concerns not only because they do not create comprehensive systems of checks and balances to ensure abuse does not take place, but also because of the elderly themselves having difficulty holding their family members accountable when it comes to a POA.
Despite difficulties that come with POAs, these are useful and needed tools that a large majority of elderly people in the US choose to use to protect themselves and prepare for a day when they are not able to make life decisions for themselves.
Multiple forms of POAs exist and the most common ones for individuals in nursing homes tends to be ones that deal with financial issues as well as medical issues. There are also POAs that are in place and are inactive until the mental capacity of the nursing home patient requires that it kicks in.
For many of my clients, we prepare a specific “litigation” POA which lets a family member pursue a nursing home abuse case for the elderly victim, but does not give up any other legal rights of the elderly person.
Financial Power Of Attorney
When an individual lives in a nursing home, they often have cognitive problems that makes it hard for them to deal with day to day responsibilities.
Because of this, many choose to have their finances left in the hands of a trusted POA that can make sure that taxes, bills, and any other financial obligations are paid for and taken care of on time.
Additionally, people with a financial POA are better able to potentially protect themselves from individuals who may want to take advantage of their accounts and finances.
There is always the chance that the POA may be the one to abuse the nursing home resident’s accounts. When you believe this is happening, there is always the option of changing a POA at anytime the principle wants to.
Medical Power Of Attorney
A medical power of attorney, also known as a healthcare power of attorney (HCPOA) gives an agent authority to make decisions about your healthcare when you are not able to do so yourself.
The reason for this inability to make decisions can range from advanced stages of illnesses like dementia or Alzheimer’s to the individual falling into a coma post-operation or after a medical condition like a stroke.
A medical POA is highly relied on with some research showing that married couples in nursing homes have a higher prevalence of reliance on one (92% usage).
Some communities like minorities, unmarried elderly people, people living in more rural areas and people within the LGBTQ community also rely on the a medical POA but at a rate that is lower.
An elder care power of attorney tends to be broken into these two major types of POAs.
Obligations of a POA
The obligations of a POA are complicated and revolve around rules that balance technical needs of the POAs duties and the need for limitations to protect a principle from any agent that may want to overreach their power.
Some basic tenets of the POAs responsibilities do exist and are expected at all times.
Acting In Your Best Interest
One clearly established rule for POA obligations is that at all times, and with every single decision, no matter how big or small, the POA agent is supposed to ensure, and is legally obligated, to act in your best interest.
Exploitation of the elderly is a serious problem because the elderly often have slower cognitive functions, poorer hearing and weaker eyesight which makes them susceptible to abuse and fraud.
The job of a POA is to ensure that all decisions are made in your favor and with your well-being in mind.
The number one obligation of a POA is to ensure your best interest and all other decisions should be made based on this principle.
Is A POA Responsible For Nursing Home Debt
An individual being an acting agent for a general POA or a financial POA does not make the power of attorney financially responsible for the debt of the person who is the principle of the POA.
Even if the POA-principle relationship is one of parent and child, this still does not make the POA financially liable for the debts of their parent/ the principle. The only situation in which this would not be the case would be if the individual was a co-signatory on any debts.
The sheer fact that you are a POA does not on its own make you responsible for a nursing home debt.
What a nursing home can do is ensure that as the POA in charge of the finances of your parent or any other principle you are the agent for, you use the funds of the principle to pay nursing home bills.
If you are the POA for example of your parents, the nursing home cannot make you use your own personal funds for the nursing home debt, but can ask you legally as the POA to use your legal role as the parents agent to use their bank account to pay outstanding bills.
Things like billing needs of the nursing home or medical bills that need to be paid are common responsibilities that a POA deals with.
What Rights Does A POA Have?
So long as the individual who signed their rights to a POA does not want to revoke the agreement, the POA holds all power and authority given under their specific POA.
This means that a POA can take a number of actions that may seem intense or extreme. Nonetheless, the decisions the POA makes, so long as it is able to be argued that the decision is done with the best interest in mind of the nursing home resident, is allowable.
Can a POA Stop Family From Visiting?
Yes, a nursing home resident’s family can be stopped from visiting their own family member if the POA says this is what needs to happen.
Within the general powers that a medial POA has, or a general POA has, the agent has the authority to restrict or deny any visitor from seeing the nursing home resident or principal.
If the nursing home resident is cognitively able to make their own decisions, the POA cannot override them.
However, many in nursing home residents are not mentally competent and will not be able to have a say outside what their POA decides for them.
If you are being kept away from your loved one by a POA, your course of action is to go to court and argue why you believe that the POA is attempting to isolate your family member from everyone other than themselves.
Can A Power of Attorney Control Funeral Arrangement Decisions?
Different states will have different rules on how far a POAs authority can go and different types of POAs have different limits as well.
This is important because after a principle passes away, there will be different processes and authorities on what happens next depending on a number of factors including whether or not there is a will and an estate attorney already on retainer.
If a person has a healthcare power of attorney (HCPOA) or a medical POA, their authority under that legally ends once the principal dies, so if a HCPOA tries to limit family in decision making about funeral arrangements, this is not allowed.
However, if there is a more comprehensive and general POA, particularly one that includes the designation of a person for funeral arrangements, then they can limit others from being involved in the funeral planning process.
This designation needs to be a formal one that is written by the principle before they die and needs to be dates, signed and notarized.
If no such document exists, and the HCPOA is the only POA for the decedent then different states have different rules for who has authority to plan a funeral for the nursing home resident which goes in order as: surviving spouse, child(ren), sibling, guardian.
Limitations In POA Rights
The biggest limitation in POA rights comes with to what extent best interest is used by the agent when making decisions.
The POA cannot act however they want and they cannot make whatever decisions they want as all decisions need to be made according to this concept of best interest.
Another limitation in the POAs rights and capabilities is that they cannot change or alter any wills.
A POA also cannot use their status as your agent to make decisions for you after you have passed away unless they are explicitly given these rights as the executor of your will or have notarized paperwork giving them specific rights like funeral planning rights, or additional rights have been given to them in the will.
The POA is also not a transferable document or authority and the POA cannot pass it along to another person. The only person that can change the POA is the principle themselves or a court.
Misuse of Power of Attorney Rights
A POA can misuse their power and their abuse of power has been classified in different states as anything from, theft, to elder adult abuse statute, to embezzlement or an exploitation of an infirm individual.
The problem with proving misuse of a POA is that the law presumes that the POA is an individual who has the nursing home resident’s express permission to execute any number of financial and health decisions. Without someone coming forward to testify that the decisions were not what the principal (the person signing the POA) wanted, it is difficult to prove abuse of the power of attorney duties.
Can A Nursing Home Sue The Power Of Attorney?
It is not easy for a nursing home to sue a POA but it is not impossible.
If the nursing home is attempting to sue the POA for financial reasons, it will be hard to do this if the goal is to take funds from the POAs own personal accounts.
However, if the nursing home is attempting to sue the POA to force them to fulfill their duty of using the principal’s finances to cover debts owed to the nursing home, this is a more plausible area for the nursing home to be successful.
Barriers to Prosecution of POAs
One barrier to reporting and prosecuting financial abuse in a nursing home patient by a POA is that the POA includes family members as perpetrators.
Suggestions have been made to overcome barriers to reporting and prosecution such as using victim support teams, specialized law enforcement agencies for elder care and working to gain the trust of elderly nursing home residents to help encourage them to take action against a POA who is abusing their position of trust.
Accountability & Mitigation of Power of Attorney Abuse
The biggest mitigation for POA abuse is to help elderly individuals get educated about the risk of financial abuse that can happen if they use a power of attorney.
One suggestion is to include the execution of narrowly drawn powers of attorney with limited powers and requirements for oversight so that no one person can take advantage of the nursing home resident.
The elderly individual can also ensure that they work with an investment or banking organization that has in place tools to help protect elderly customers.
One example of this is seen in some investment firms that have crafted policies that require all financial reports to be sent directly to account owners, even if the POA requests that statements be sent to a different address.
When law enforcement agencies and nursing homes also work on encouraging reporting and prosecution, this gives the nursing home residents more room in working to report the abuse in a comfortable manner.
One option is to give the victim the “option to say what punishment he or she wants for the perpetrator” which can be comforting since the perpetrator/ POA is often a family member.
Another potential method to reduce POA abuse is to encourage court ombudsman programs to help older people to understand the legal and social service system that is available to them by assisting them with completing legal documents, and helping them to better understand the legal process.
Can You Override a POA?
Usually, only the original principal can override a POA.
The principal can cancel the POA at any time they want. They do not need to have a reason but to change or cancel it.
They do, however, need to show that they have the same capacity as if they wanted to enter into a contract.
This is needed so that a person with conditions like advanced Alzheimer’s or dementia do not make a decision that is against their own best interests.
In some cases the POA may not be acting in the best interest of their principal. Alternatively, relatives may be concerned that the POA is acting in an unhelpful manner.
If you believe that a POA is abusing their responsibilities or is neglecting the care of your loved one, you can attempt to take legal action without the principal (assuming the principal is either not mentally capable of making a decision or the POA is keeping you away from the principal).
In order to override, or attempt to override an existing POA, you will want to take the following steps:
If you reach the end of these options and you find yourself in court, a few things are important to remember.
The first is that you will need to convince a judge that the POA needs to be removed which means proving that they are failing in their basic duties.
You will also have to prove to the court that you are respecting the wishes of the original principle and asking that their choice for a POA needs to be rejected now.
Elder Care Power of Attorney Q&A
Can a POA stop family from visiting?
Yes, a POA does have in their general powers the ability to stop family from visiting their family member in an nursing home.
Can a nursing home sue a power of attorney financially?
Yes and no. A nursing home can sue a POA to make sure they are adhering to their duty and using the principal’s finances to pay nursing home debts. A POA cannot however be sued by a nursing home to use their own personal funds to pay these debts.
Is POA responsible for nursing home debt
A POA is not personally responsible for a nursing home debt or any other debts of their principal unless they had co-signed for any of those debts.
Who is responsible for billing an estate for elder care?
Billing an estate for elder care will generally fall to the individual who believes that they are owed funds for the services they gave in caring for an elderly individual.
What is the difference between a healthcare power of attorney and a medical power of attorney?
While it may seem that a healthcare power of attorney and a medical power of attorney are different, these are both names for a similar kind of POA that deals with making healthcare decisions for the principal on the part of the agent.
Elder Care Power Of Attorney Help
As a nursing home abuse lawyer, I personally deal with one particular type of power of attorney document. It is a custom, limited power of attorney that allows family or friends to pursue and investigation nursing home abuse on behalf of the elderly resident.
If you need help with that form of power of attorney and believe that someone you know in a nursing home is being abused or injured by that nursing facility, contact me immediately for help.
I have handled hundreds of nursing home investigations and am on standby to help you.
Warmly,
Reza Davani, Esq.
State Bar No.: #1212110211
Federal Bar No.: #30168
Cellphone: (301) 922-4598
Email: reza@nursinghometruth.com
Supporting Literature, Citations & Resources:
Daaleman TP, Williams CS, Preisser JS, Sloane PD, Biola H, Zimmerman S. Advance care planning in nursing homes and assisted living communities. J Am Med Dir Assoc. 2009;10(4):243-251. doi:10.1016/j.jamda.2008.10.015
Rabiner, D. J., O’Keeffe, J., & Brown, D. (2006). Financial exploitation of older persons: Challenges and opportunities to identify, prevent, and address it in the United States. Journal of aging & social policy, 18(2), 47-68.
Nerenberg, L. (2007). Elder abuse prevention: Emerging trends and promising strategies.
Payne, B. K., & Strasser, S. M. (2012). Financial exploitation of older persons in adult care settings: comparisons to physical abuse and the justice system’s response. Journal of Elder Abuse & Neglect, 24(3), 231-250.
Purser, K., Cockburn, T., Cross, C., & Jacmon, H. (2018). Alleged financial abuse of those under an enduring power of attorney: an exploratory study. British Journal of Social Work, 48(4), 887-905.
Black, J. A. (2008). The not-so-golden years: Power of attorney, elder abuse, and why our laws are failing a vulnerable population. . John’s L. Rev., 82, 289.
Mossman, A. (2015). Autonomy vs abuse: Can a patient choose a new power of attorney?. Current Psychiatry, 14(3), 37-40.
Dickson, L., Bunting, S., Nanna, A., Taylor, M., Hein, L., & Spencer, M. (2021). Appointment of a healthcare power of attorney among older lesbian, gay, bisexual, transgender, and queer (LGBTQ) adults in the Southern United States. American Journal of Hospice and Palliative Medicine, 38(11), 1291-1298.
About the Author
This nursing home and medical malpractice article was written by Baltimore, Maryland nursing home attorney Reza Davani, Esquire. Mr. Davani received his Juris Doctor degree from a Tier 1 law school, the University of Maryland Francs King Carey School of Law. He received his first license to practice law from the State of Maryland’s Court of Appeals (MD State License No. 1212110211), and just four months later received a federal law license from the United States District Court for the District of Maryland (Federal License No. 30168).
Mr. Davani has been practicing law for over 10 years. He began practicing law by helping clients as a sanctioned student lawyer before receiving his law license, and second chaired his first jury trial in federal court before even graduating law school. He is a registered member of the Maryland Association for Justice (MAJ), the American Bar Association (ABA), the American Association for Justice (AAJ), and was formerly on the MAJ’s Legislative Leader’s Circle.
Mr. Davani has taken over 20 cases to trial in state and federal court, and favorably settled well over 100 cases for injured victims. He has personally helped his clients recover over $15,000,000 in personal injury, medical malpractice, and nursing home abuse settlements and verdicts in Maryland and other states. He is dedicated to fighting for justice, and welcomes the opportunity to help you.
Nursing Home Abuse Lawyer Near You in Baltimore, Maryland & Beyond
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