The writing is on the wall: Your aging loved one is no longer safe living at home. You’ve tried to reason with them, talked about the benefits of senior living, encouraged them to tour local communities, begged, pleaded and bribed, but nothing works. Your loved one refuses to even consider moving.
Caregivers encounter all kinds of challenges when it comes to ensuring their loved ones’ wellbeing. But when an elder refuses to accept the help they need and continues to put themselves in harm’s way, family members are left feeling powerless, frustrated and worried. What’s a caregiver to do when their loved one insists on living independently? The only way you can legally force someone to move into a long-term care facility is to obtain guardianship of that person.
How Does Guardianship Work?
Seeking guardianship of an elder is not an easy or inexpensive process, according to Susan B. Geffen, an elder law attorney. The process involves going to court and is often lengthy. In some cases, a family member will initiate this proceeding, or the county’s adult protective services will petition the court to have a guardian appointed.
Guardianship can only be established over a person who is found to be incapable of making sound decisions and caring for themselves. If a senior is competent, they can choose how and where they want to live, even if these decisions put them at risk of injury, illness or death.
The Misconception Surrounding POA
Some people mistakenly believe that a financial power of attorney (POA) or medical POA gives them the authority to force their loved one to move, but that is not the case. “No document gives the caregiver that authority,” notes Geffen. POA documents only give someone the power to “be the impaired person’s voice for legal, financial or health care matters,” Geffen says.
The Process of Obtaining Guardianship
Any attempt to take over the rights of another individual is costly and time-consuming, and the process may not have a favorable outcome for the person seeking guardianship (known as the petitioner). Judges, lawyers, psychologists, neuropsychiatrists and Adult Protective Services staff are often involved. The court assigns an independent attorney, called a guardian ad litem, to represent the elder (known as the respondent). The petitioner is responsible for paying the filing fee and the costs of bringing the suit. Examples of such costs include the guardian ad litem’s fixed fees and any expenses associated with the respondent’s medical, neurological or psychological evaluations for determining whether they are competent to handle their own affairs.
A court-appointed attorney investigates and takes all the testing results and analysis into consideration. If everyone in the process agrees that the elder lacks rational decision-making capabilities and the petitioner is a responsible and trustworthy individual capable of functioning as a guardian, the judge will rule in favor of guardianship.
Weighing Independence and Wellbeing
Regardless of a family’s unique situation, getting an elder to move from their home is never easy. The best scenario is to broach the subject frequently and long before it needs to be acted on. In this way, the entire family can work together to understand how a loved one wishes to live out their golden years and then plan accordingly.
Ultimately, family caregivers must learn to respect their aging loved ones’ wishes and try their best to reconcile them with the best decisions for their health and safety. If a senior is not capable of partaking in these decisions, then guardianship may be the only way to ensure their wellbeing.
By, Marlo Solitto, Aging Parent