With recent reports of nursing home residents dying from the novel coronavirus, many family members are looking to take their older loved ones out of these facilities. Daniel J. Reiter, Principal Attorney, Law Firm of Daniel J. Reiter, Esq., says that, while he understands that families are concerned about their elders’ health, if the nursing home resident cannot make decisions on their own — for example, if they have dementia — it may not be very simple to transfer their loved ones out of a nursing home, and legal guidance may be required.
According to Governor Andrew Cuomo, more than 3,300 nursing home residents statewide have died from the novel coronavirus. Mr. Reiter points out that nursing homes are “hot spots” for the novel coronavirus. “Because of their age and physical health, nursing home residents are extremely susceptible to this disease,” he says. “Also, they may be living in close quarters, with two or three to a room. One of them may be a carrier without the other roommates knowing it, so the disease can be easily transmitted.”
The disease may be spread not only by other residents, but by staff members as well. “Some of these nursing home employees are overwhelmed and see many residents at a time,” Mr. Reiter says. “The workers may not have the proper protective gear in this environment, thereby infecting the residents and other staff members inadvertently. In addition, many nursing home residents are bedbound, and workers have to make physical contact when turning the resident many times a day to avoid bed sores, which makes maintaining social distancing at six feet medically impossible.”
While he understands that many family members are looking to get their elders out of these facilities as quickly as possible, Mr. Reiter says it is not always as simple as walking in, signing them out and bringing them home. “Moving your loved one out of a nursing home is a decision that should be made in consultation with the appropriate professionals, such as a geriatric care manager,” he says. “However, the legality of moving your loved one from a nursing home if they are mentally incapacitated may require the assistance of a lawyer, or an application to the court on an ‘emergency’ basis. This applies to court-appointed guardians and agents under a power of attorney. Just because someone is named an agent in a health care proxy, or is the resident’s child, does not mean they have the right to remove their aging parent from the nursing home.”
He recommends that guardians check their Order of Judgment appointing them guardian. Some of these court documents — which name a family member as the guardian — do not require the court’s approval to transfer their ward from the facility so long as a “place in abode” provision is included in the Order and Judgment. Meanwhile, a standard New York State statutory short-form power of attorney that is not “modified” and health care proxies do not authorize agents to move residents out of nursing homes.
“Either the resident has the capacity to consent to being transferred from a nursing home, or the loved one will need a power of attorney with a provision in the modifications section of the power of attorney authorizing the transfer or to be appointed guardian,” Mr. Reiter says. “If you need help transferring your loved one from a nursing facility, contact an attorney immediately.”
For more information, call (646) 820-4011 or visit www.djrattorney.com.