Doesa POA have the right to makesomeome move into another room in a nursing home against their will if it is in the person’s best interests?

UPDATED: Jan 20, 2011

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Doesa POA have the right to makesomeome move into another room in a nursing home against their will if it is in the person’s best interests?

I am her POA and helth care surrogate. My aunt’s roommate is very controlling, abusive to staff and facility, has been verbally abusive to me in my aunt’s room and generally controls everything about the room. My aunt has lost all autonomy there. I say if my aunt believes she “wants” to stay in that room she is not competent enough to decide what is best for her general well being. The nursing home personnel say they have to abide by her wishes even though they know how bad it is. Is there anything I can legally do?

Asked on January 20, 2011 under Estate Planning, Kentucky


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

In this case, there is probably nothing you can do. The power of attorney will not give you the right to make decisions of this kind, such as what room to stay in. A health care surrogacy only applies if your aunt is unable to make decisions on her own--e.g. unconscious, in a coma, or incompetent. However, incompetency is a legal adjudication--the fact that you may feel she is not competent or that you have the POA and the health care surrogate does not give you the right to have her declared incompetent. Only a court can do that, after the appropriate hearing. If you believe that she is in fact incompetent and cannot look after her own best interests, then perhaps this is the way to go; if you think this is the case, speak with an attorney who specializes in guardianships or elder law about your options, the procedure, the cost, the time line, and whether it seems to be the case that you could have her declared incompetent--and if you did, who would likely be appointed as her guardian.

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