Nursing Home Deaths Prompt Families to Remove Loved Ones, But Legal Obstacles Make It Difficult for Many

With nursing homes and assisted living facilities being hit the hardest by the novel coronavirus pandemic, many family members have pulled their loved ones out of long-term care facilities. However, Daniel J. Reiter, Principal Attorney, Law Firm of Daniel J. Reiter, Esq., says that, sometimes, there may be legal obstacles in doing so if the resident is mentally incapacitated, for example, with severe dementia.

According to the New York State Department of Health, there were 2,983 nursing home deaths statewide, as of April 26 (the number includes residents who died at either a facility or a hospital). Some of them, according to the agency, resulted from presumed or confirmed cases of the coronavirus. In New Jersey, the state Health Department reported that nursing homes in The Garden State had 16,244 cases of the coronavirus, resulting in 2,981 deaths, as of April 27.

Before family members can move their loved one out of a nursing home, Mr. Reiter says they should speak with someone at the facility, or seek outside assistance from an appropriate professional, such as a geriatric care manager. “If you are the adult child of a resident who may have dementia or is mentally incapacitated, then you may need legal assistance,” he says. “Being the resident’s child, by itself, does not mean you can remove them from the nursing home.”

If the court has named a family member as a guardian, Mr. Reiter advises that the guardian check the Order and Judgment appointing them guardian. If there is a “place of abode” provision, they may not need to seek the court’s approval to remove their parent from the nursing home. However, in New York State, someone with a statutory short-form power of attorney without modifications, or a health care proxy, cannot authorize agents to move a resident out of a nursing home.

“Even if you want to move your loved one out of these facilities, more often than not, the resident has the last word,” Mr. Reiter says. “But if the resident does not have the mental capacity to make these decisions, you may require legal assistance. If you need help transferring your loved one out of a nursing home, contact an attorney immediately.”

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