A power of attorney (POA) is an essential legal document that grants someone the authority to make decisions on behalf of someone who can no longer make them on their own. When we talk about POAs in a nursing home setting, they help ensure that the person living at the nursing home receives the proper care and attention they deserve.
A family member or anyone that the person appoints can be their POA. When the person is in a nursing home, often, their POA is their first defense in preventing negligence and abuse. Understanding what this role entails is critical to ensuring they act in the individual’s best interest.
Types of Power of Attorney
Many people think that power of attorney [1] is a blanket term that allows someone to make decisions for someone. While it does grant them the ability to make decisions, there are different types of power of attorney:
- Medical POA: Also known as a healthcare power of attorney, this POA is specifically for healthcare decisions. This allows the agent to make any medical decisions on behalf of the principal (the person granting the agent’s authority). In a nursing home, the POA can make decisions on the principal’s behalf, including having a say in their healthcare plans, medications, and overall care strategy.
- Durable POA: A durable power of attorney remains intact even if the person becomes incapacitated. This is more for long-term nursing home care since they can keep making decisions for the person as they deteriorate physically and mentally.
- Financial POA: This grants the agent authority over the person’s financial matters. It allows the POA to manage their finances, manage the principal’s bank accounts and financial transactions, prevent financial abuse, and protect their assets.
Some people choose to appoint one person as their POA in all matters. That’s why it’s essential to outline everything in a legally binding document sooner rather than later so there’s no confusion.
How a Power of Attorney Protects Against Nursing Home Abuse
Having a power of attorney is the most powerful tool to help protect someone from neglect or abuse while they’re in a nursing home. A power of attorney can help with the following:
- Financial Oversight: An agent with financial power of attorney is responsible for all financial affairs. They can monitor their accounts and ensure that money is used appropriately for their care and there are no unexplained charges or withdrawals.
- Intervention in Care Decisions: Someone with healthcare power of attorney can actively participate in care plan meetings, review medical records, and have a say in medical treatment decisions. This helps ensure the residents get the necessary care and prevents medical neglect or abuse.
- Regular Visitation: Even though this isn’t precisely on the power of attorney document, they can visit regularly, which allows them to monitor the principal. Regular monitoring and visits also help them look for neglect and abuse.
- Legal Representation: When nursing home abuse or neglect is suspected, the POA can act on behalf of the resident. This allows them to file a complaint or lawsuit with regulatory bodies. They can also hire a qualified lawyer to assist with the claim or lawsuit.
- Advocating for High-Quality Care: Even someone with general power of attorney can advocate for higher-quality care for their principal. This can include requesting a change in their care plan, investigating their concerns, or arranging a transfer to a new nursing home if needed.
Choosing the Right Agent
Giving someone legal power over your decisions isn’t a choice you should take lightly. Here are some key considerations as you choose your POA:
- Always choose someone you can trust.
- Ensure that the person can make decisions for the principal. This means they must be educated about nursing home care and have the time to be the POA.
- The agent should have excellent interpersonal skills to interact well with nursing home staff and legal professionals.
- Ideally, the agent would know the residents well and understand their medical and financial wishes.
- It is best to choose a POA who can remain in the role for a prolonged period, like an adult child.
- You’ll want an agent who is proactive about visiting the nursing home and willing to discuss concerns.
Setting Up a Power of Attorney
Selecting and setting up a power of attorney who will handle decisions for someone in a nursing home involves several steps:
- Determine the Scope: Decide what power the agent will have.
- Choose the Agent(s): Choose someone you trust to act responsibly on your behalf.
- Draft the Legal Documents: You can get POA documents online, but working with an elder law attorney is best.
- Include Specific Powers: Include which powers the agent will have, such as health-related decisions and end-of-life decisions.
- Consider Activation Timing: Decide when the POA will be active, such as when you cannot make your own decisions.
- Meet the Legal Requirements: Ensure your document meets all your state’s legal requirements. In most states, you must have a notarized POA document.
- Register the Document: Your state may or may not require you to register the document with the county clerk.
- Give Out Copies: Ensure your agent, successor agents, and other relevant parties have a copy of the POA document.
The Risks of Not Having a Power of Attorney in Place
When you don’t establish a power of attorney, you’re taking a significant risk, especially when it comes to being in a nursing home:
- Delays in Care: Medical decisions might be delayed without someone to make the decisions.
- Court-Appointed Guardianship: The courts might appoint someone to handle all their decisions, and it can be expensive.
- Financial Mismanagement: Bills might go unpaid, or their financial situations could end up in jeopardy.
- Increased Risk of Neglect: Nursing home residents are more vulnerable to neglect without someone regularly visiting and monitoring them.
- Family Conflicts: Families can disagree on decisions without a designated decision-maker.
Common Limitations of Power of Attorney
Even though giving someone power of attorney, there are limitations that you need to keep in mind:
- Those with general power or any power of attorney cannot override the principal’s wishes when competent.
- Powers of attorney expire upon the principal’s death, effective immediately after they die.
- The power of attorneys can’t make changes to obtain the principal’s will or estate planning documents.
- An agent cannot transfer their authority to other family members or anyone else.
- State law doesn’t allow some things, like voting or creating a will, regardless of what the POA document says.
- If a close family member or other loved one believes the chosen agent isn’t acting as they should, they can challenge the POA in court.
- Some financial and healthcare institutions might not honor the POA if they believe it’s outdated or are concerned about its validity.
The Role of a Power of Attorney in Nursing Home Billing
One of the biggest concerns for family members or loved ones who might become a power of attorney for someone is the financial responsibility that comes with nursing home care. That’s why it’s critical to understand their role in nursing home billing:
- Managing Payments: POAs might ensure that nursing home bills are paid through the appropriate channels.
- Not Personally Responsible: POAs are not responsible for paying for the principal’s nursing home care with their personal finances.
- Applying for Benefits: POA often includes applying for Medicare and Medicaid for the principal.
- Protecting Against Improper Billing: They can help protect the principal from financial elder abuse [2] by ensuring everything is billed correctly.
Sometimes, a nursing home might pressure the POA to take financial responsibility. This isn’t legally required, and you should seek advice from a qualified nursing home attorney.
The Importance of Regularly Reviewing Your Power of Attorney
Once you decide who you want your POA to be, you’ll want to review the document and make updates as needed regularly:
- As the principal’s health condition changes, the POA document might need to be updated to include making health-related decisions.
- Ensure the agent can still take on such power.
- Laws about POAs can change, so reviewing the document with an attorney can ensure that the POA is legal and enforceable.
- The POA might need updating if there are significant financial changes for the principal.
- Any relationship changes between the principal and agent require the introduction of successor agents.
- Certain nursing homes might have specific rules about POAs, so ensuring that your document meets their requirements is key.
What to Do If a Power of Attorney Is Abused in a Nursing Home
Families who suspect that the POA is being abusive or not fulfilling their duties to act in the principal’s best interest in a nursing home setting can take action:
- Document dates, times, and locations of suspected abuse, neglect, or decisions made that weren’t in their best interest.
- Report the abuse of power to the local authorities and the nursing home.
- Consult with experienced lawyers for your legal options.
- If necessary, petition the court to challenge the POA.
Revoking a Power of Attorney
If you feel that it’s necessary to revoke someone’s power of attorney, here’s how to do so:
- Make sure the principal is mentally competent to execute the revocation.
- Create a revocation document including information on why you’re revoking POA.
- Follow your state’s laws regarding revocation of POA.
- Inform the agent about the revocation.
- Inform all relevant parties, such as healthcare providers and the nursing home.
- Designate a new POA.
- Consider hiring an attorney to ensure the process runs smoothly.
How a Nursing Home Abuse Lawyer Can Help with Power of Attorney Issues
Choosing a power of attorney is vital to protect yourself. They’ll make decisions for you when you can no longer make them and ensure your rights are protected. However, some people do get exploited or abused by their POA. Lawyers specializing in elder law, like those at the Nursing Home Law Center, are ready to assist in any way possible.
Contact us today by filling in our contact form or at (800)-926-7565.
References: [1] Consumer, [2] NIH