Getting dad out of a nursing home

April 19, 2005 4:08 PM

Can a child remove a parent from a nursing home to live with the child if the parent's spouse (from remarriage) approved the nursing home placement? I've googled but am having trouble finding resources that aren't about nursing home abuse and neglect.

Apparently the dad was in a VA hospital for two days for a condition that does not appear to the child to require alot of continued medical assistance, and then was released (at direction of spouse) to a nursing home. He is 80, and allowed himself to be put in nursing home by spouse, but when child asks him if child can take him home to live with child, he says yes, let's go. Not aware of whether anyone has power of attorney.

The dad has some ongoing medical issues (walks with a cane, apparently was on oxygen for a while in the hospital), but nothing that seems to absolutely require nursing home care.

I thought nursing homes were sort of a last resort, but I don't know how rights between children and spouses work. (To be clear, the spouse is not the child's mom -- she's a stepmom from a subsequent marriage.) Wouldn't a nursing home naturally release someone who wanted to leave, and does the fact that they're not doing it suggest there are medical or capacity issues?

I'm not going to interpret any of this as legal advice, and child is seeking an opinion from an actual family law attorney, but a sibling is looking for a reality check and trying to determine whether they should get involved. Any guidance or links appreciated. Thanks!

posted by onlyconnect to law & government (9 comments total)

Unless he's mentally incompetent I can't imagine it matters at all what his spouse thinks. Do you need your spouse's permission to move somehwere?

Power of attorney only comes in if the person cannot make his or her own decisions. If your father can make decisions, then they're his decisions to make.

IAN Even Close to AL
posted by duck at 4:11 PM on April 19, 2005

Agreed with duck -- the only big problems here, barring a power of attorney or a decree of incompetence, are those of the ill will and inevitable family discord that will be sown by the adult child interfering (even if it's for the best) in the spousal relationship. (IAN your lawyer. This is not legal advice, merely familial advice from someone who has been there, done that. Please do seek an opinion from a licensed family law specialist in your state if there are legal matters in question, and please be sure what your Dad really wants.)
posted by Dreama at 4:27 PM on April 19, 2005

Your father is his own legal guardian as far as his medical decisions go. As long as he's competent not even somebody who has power of attorney can force him to go somewhere he doesn't wanna go.

You need to talk to the nursing home administrator with your father and let me know what's up. They can't force him to stay there, period. Nursing homes are not prisons.
posted by taumeson at 4:58 PM on April 19, 2005

Also to consider, if I was a bystander of this potential family drama, what is the situation with monetary funds going or not going with the father? Nursing homes usually cost a lot of money and the spouse may have issues with just paying the sum to a child. Or if the payments/support are coming from a health fund or the state the child might not qualify for extra monies. In my experience (sadly), the real family wars follow the money, not from who lives where.
posted by dness2 at 5:51 PM on April 19, 2005

Some random thoughts:

* Even if there isn't particularly good relations between the child and his stepmother, are there many negatives to contacting her to ask whether she has any objections to the proposed move?

* Money is almost always important. Living with a child is obviously less expensive than a nursing home, but if (say) the dad has a pension that the stepmother controls, she could well feel threatened if the dad moves in with the child. She could feel even more threatened if she felt that the dad might change his will if he moves in with the child, and the dad has substantial (a subjective adjective, admittedly) assets.

* It's possible that the dad has some sort of long-term care health policy that makes it (essentially) free (to the stepmom) to put him into nursing care, at least until the policy limits are reached.

* Would the nursing home administration have a copy of the power of attorney or other documentation if in fact that was how the stepmother placed the dad in the nursing home? At mimimum, if the child told them that the dad was considering moving out, and did they have any issues with that, he is likely to learn more.

* If there are serious disagreements about what is best for the dad, one option is to get the Adult Protective Services folks (government agency, exists in most states) involved.
posted by WestCoaster at 7:28 PM on April 19, 2005

Before you do anything, consult a lawyer. Really.

If there is any dissention by the spouse at all combined with any doubt about the parent's competence at all you could be in serious legal and financial trouble as a result. There does not have to be a declaration of incompetence right now. The spouse could swear an affidavit using the unscheduled nursing home departure as the last straw of "evidence."

Nearly all laws recognize that spouses have the highest authority in determining care, over and above even blood family members. This is why 24 court cases went in Michael Shiavo's favor, even with the whole country lined up picketing against him. Before you put yourself on the wrong side of such precedents, make sure your position is unassailable.
posted by localroger at 7:28 PM on April 19, 2005

I'm with WestCoaster on point one - I don't see any downside of getting the spouse's input. If they are amenable the lawyer issue could be avoided entirely. It seems a reasonable chance that, for whatever reason, they don't want to cohabitate with your dad, but why should it matter who's caring for him? In any event, if there is a legal dispute talking to her first couldn't possibly make it worse, and if the main issue is the sort of family dissent potential, getting lawyers involved before reviewing what you'd like with the spouse is bound to make it worse. Definitely no action should be taken until the legal issues if any are addressed, but I don't agree that getting a lawyer should be the first step. I say get more information first.

Oh and not to nitpick, localroger, but multiple polls have shown that the majority of people in this country were in favor of Michael Shiavo's actions and against congressional intervention.
posted by nanojath at 11:38 PM on April 19, 2005

Please don't turn this into a thread about Shiavo.

Thanks.
posted by raedyn at 7:39 AM on April 20, 2005

Sounds like there may be competency issues at play here. In this case, the spouse's wishes usually hold legal trump unless there are mitigating circumstances (spouse is incompetent or mentally ill, prior expressed wishes of the patient suggest someone else should be given priority, etc.)

I've found that if the parties involved actually sit down and talk rather than going around having their friends posting questions on websites for them, there's rarely a disagreement after a few hours of intense discussions. Guidance from empathic professionals smooths this process very much.

High-profile, drawn-out legal cases, not to name any names, are very much the exception and not the rule.
posted by ikkyu2 at 7:57 AM on April 20, 2005