Question: My Mother was admitted to a Dementia Unit at our local hospital. She does not have a Health Care Proxy or a Durable Power of Attorney. The hospital tells me that the long term care facilities will not accept my Mother without these documents. What should we do? Do we need a lawyer?
Answer Part One: Obtaining guardianship is step one. You need to file for guardianship over your mother and ask for specific authority to authorize transfer to a long term care facility.
The situation described above is a common one in my practice. Often, Elders lacking capacity who are being screened for admittance to a nursing home, long term care center or rehabilitation centers can have a difficult time being placed if there is no one to sign the admittance papers under a health care proxy or durable power of attorney. At this point it is too late to draft one because the Elder lack capacity to sign legal documents and the only option left the Elder and Elder’s family is to pursue guardianship within the legal system.
Answer Part Two: Yes, we recommend you use a lawyer, although it is not required.
Because your mother lacks the ability to make personal, medical or residential decisions due to incompetency, a lawyer can petition the court to appoint a guardian over your Mother. An experienced lawyer can sometimes expedite the court hearing and have a temporary guardian appointed over your mother in very short time. A lawyer can also work with the hospital and nursing home to ensure an easy and supportive transition process for your Mother.
If money is an issue we recommend doing your research on local guardianship and elder law attorneys. Some attorneys agree to an arrangement called “Limited Representation.” This means the attorney will act in a supervisory/consulting capacity to help you navigate the legal system, support you in obtaining necessary documentation and avoid any pitfalls. Under this arrangement, since you would appear in court, speak to the judge and file all the necessary paperwork, the legal costs are reduced while still ensuring that the process is a smooth and efficient as possible.