When a loved one enters a nursing home, families often have concerns about maintaining control over healthcare and financial decisions. A common question that arises is whether a nursing home can override a power of attorney (POA). This comprehensive guide examines the legal boundaries between nursing home authority and the powers granted through a properly executed POA document.

Understanding Power of Attorney Documents

A power of attorney is a legal instrument that allows an individual (the principal) to designate another person (the agent or attorney-in-fact) to make decisions on their behalf. These decisions typically fall into two categories:

Healthcare Power of Attorney

This document authorizes an agent to make medical decisions when the principal becomes unable to do so themselves. These decisions may include:

• Treatment options
• Medication management
• End-of-life care preferences
• Selection of healthcare providers
• Access to medical records

Financial Power of Attorney

This grants an agent authority to handle financial matters, including:

• Managing bank accounts
• Paying bills and expenses
• Handling property transactions
• Managing investments
• Filing tax returns
• Applying for benefits

The Legal Standing of Power of Attorney Documents

When properly executed, a power of attorney (POA) creates a fiduciary relationship between the principal and agent. This means the agent must act in the principal's best interests, with loyalty and good faith.

A valid POA document carries significant legal weight and cannot be casually dismissed by third parties, including nursing homes. Federal and state laws generally require institutions to honor valid POAs, though they may verify the document's authenticity.

Can a Nursing Home Override a Power of Attorney?

The short answer is: generally, no. A nursing home cannot arbitrarily override a power of attorney. However, there are specific circumstances where a nursing home might appear to be overriding a power of attorney or might legitimately challenge one.

When Nursing Homes Must Honor POAs

Nursing homes are typically required to respect valid power of attorney arrangements under both federal regulations and state laws. The federal Patient Self-Determination Act requires healthcare facilities to:

1. Inform patients of their rights to make decisions concerning medical care
2. Document advance directives in patient records
3. Comply with state laws regarding advance directives
4. Not discriminate against individuals based on whether they have executed advance directives

Most state laws explicitly require healthcare facilities to honor valid healthcare directives and powers of attorney, with limited exceptions.

Situations Where a Nursing Home Might Try to Override a Power of Attorney

Despite legal protections, there are legitimate circumstances where a nursing home might question or appear to override a power of attorney:

1. Suspected Agent Misconduct

If a nursing home has reasonable cause to believe that an agent is acting against the principal's best interests, they may temporarily refuse to honor the POA while seeking legal clarification. Examples of suspicious activities include:

• Neglecting the resident's needs while controlling their finances
• Making healthcare decisions contrary to previously expressed wishes
• Preventing the resident from seeing certain family members without clear justification
• Withdrawing large sums from the resident's accounts for non-resident purposes

2. Conflicting Directives

When multiple legal documents exist with contradictory instructions, or when multiple agents disagree about care decisions, a nursing home may need to seek clarification before proceeding.

3. POA Limitations

A power of attorney might not cover certain decisions or might have expired based on its own terms. For example:

• A financial POA doesn't authorize healthcare decisions
• A POA that was not designated as "durable" may have terminated when the principal became incapacitated
• A limited POA might not cover certain types of transactions

4. Invalid POA Documents

If a power of attorney doesn't comply with state legal requirements, a nursing home may be justified in not honoring it. Common validity issues include:

• Lack of proper witnessing or notarization
• The principal lacked capacity when signing
• Improper execution according to state law
• Suspected forgery or fraud

5. Court Intervention

A court may have appointed a guardian or conservator that supersedes a previously executed POA, or may have explicitly limited or terminated POA powers.

How Nursing Homes Sometimes Wrongfully Override POAs

While there are legitimate reasons to question a POA, nursing homes sometimes improperly disregard these documents. Common scenarios include:

Convenience and Administrative Control

Some facilities prefer to deal directly with residents rather than through agents, especially in day-to-day matters. This may lead to gradual sidelining of the agent in decision-making processes.

Financial Interests

When financial interests conflict, a nursing home might try to circumvent a financial POA. For example, if an agent questions certain charges or refuses optional services that generate additional revenue, the facility might try to work around the agent.

Healthcare Philosophy Differences

When an agent's healthcare decisions don't align with the facility's standard protocols or preferred treatment approaches, some nursing homes might pressure the agent or resident to change course.

Misunderstanding of Legal Requirements

Staff members might not fully understand their legal obligation to honor valid POAs, leading to unintentional violations of the agent's authority.

Steps to Prevent a Nursing Home from Overriding a Power of Attorney

To avoid potential conflicts, consider these preventative measures:

1. Ensure Proper POA Execution

Make sure your power of attorney documents strictly comply with your state's legal requirements. This typically includes:

• Proper witnessing (usually two adult witnesses)
• Notarization
• Clear specification of powers granted
• Designation as "durable" if intended to remain in effect during incapacity
• Proper signatures and dates

2. Register the POA

In some states, you can register a POA with the county recorder's office or another governmental entity, adding an extra layer of validity.

3. Provide Clear Copies to the Nursing Home

When your loved one enters a facility:

• Provide clear, legible copies of all POA documents
• Request written confirmation that they've been received and placed in the resident's file
• Ask about the facility's specific procedures for working with POA agents

4. Maintain Active Involvement

Agents should:

• Visit regularly and maintain visibility at the facility
• Attend care planning meetings
• Develop professional relationships with staff
• Keep detailed records of all decisions and communications
• Request to be notified of all significant changes in condition or care

5. Know Your Rights and Resources

Familiarize yourself with:

• State-specific POA laws
• The facility's grievance procedures
• Your local long-term care ombudsman
• Elder law attorneys in your area

What to Do If a Nursing Home Attempts to Override a Power of Attorney

If you believe a nursing home is improperly disregarding a valid power of attorney, take these steps:

1. Document Everything

Keep detailed records of:

• All interactions with facility staff
• Dates, times, and names of individuals involved
• Specific decisions or actions where your authority was questioned
• Any written communications from the facility

2. Request a Care Conference

Ask for a formal meeting with the facility's administrative team to address your concerns directly. Bring:

• Original POA documents
• Records of previous communications
• A clear list of specific instances where your authority was disregarded

3. Contact the Ombudsman

Every state has a Long-Term Care Ombudsman program that advocates for nursing home residents. These professionals can:

• Investigate complaints
• Mediate disputes
• Provide information about residents' rights
• Refer to appropriate agencies for further action

4. File a Formal Complaint

If direct communication doesn't resolve the issue, file formal complaints with:

• The nursing home's corporate ownership
• Your state's nursing home licensing agency
• The Centers for Medicare and Medicaid Services (if the facility receives federal funding)

5. Seek Legal Counsel

An elder law attorney can provide guidance on:

• The validity of your specific POA
• Whether the nursing home's actions are legal
• Potential remedies, including court intervention if necessary
• Whether a guardianship or conservatorship might be needed

6. Consider Court Action

As a last resort, you may need to:

• Petition the court to enforce the POA
• Seek a declaratory judgment affirming your authority
• Request damages for harm caused by improper override of the POA

When POA Authority Might Legitimately Need to Be Modified

In some situations, the existing POA arrangements might actually need revision:

When the Agent Cannot Fulfill Duties

If the agent becomes unable or unwilling to perform their duties effectively, a new arrangement may be necessary. This could occur due to:

• The agent's own health issues
• Geographic distance making hands-on management difficult
• Time constraints preventing proper attention to duties
• Relationship breakdowns between the agent and the principal

When the Principal's Needs Change Dramatically

As a person's care needs evolve, the original POA may no longer address all necessary aspects of care, requiring modifications or supplements.

When There Are Signs of Agent Abuse

If there are legitimate concerns about an agent's actions, interested parties can petition the court for:

• Review of the agent's decisions
• Temporary suspension of POA powers
• Appointment of a guardian or conservator
• Termination of the POA

The Relationship Between POAs and Guardianships

It's important to understand how powers of attorney relate to guardianships or conservatorships:

POA vs. Guardianship

• A POA is a private arrangement made voluntarily by the principal
• A guardianship is court-ordered and typically terminates or supersedes a POA
• Guardianships generally require proof that the person is incapacitated and unable to manage their affairs
• The court maintains oversight of guardians, while POA agents have more independent authority

If a nursing home believes a resident needs a guardian despite having a POA agent, they may petition the court, but they cannot override a power of attorney without court intervention.

State Variations in POA Laws

Laws governing powers of attorney vary by state. Key variations include:

• Whether witnesses, notarization, or both are required
• Whether a POA automatically remains in effect after incapacity (durability)
• Specific powers that must be explicitly granted
• Requirements for healthcare directives
• Registration requirements
• Third-party liability for refusing to honor valid POAs

It's essential to understand the specific requirements in your state to ensure your POA will be honored.

How an Elder Law Attorney Can Help You Protect Your Loved One If a Nursing Home Tries to Unlawfully Override Your POA

At Senior Advocate Center, we understand the frustration and concern when a nursing home attempts to override a power of attorney, potentially compromising your loved one's care and wishes.

• Immediate Legal Intervention: Our elder law attorneys can quickly address situations where a nursing home is attempting to override a power of attorney arrangements with cease and desist communications.
• Document Review and Validation: We thoroughly examine your existing POA to confirm its validity and identify any potential weaknesses a nursing home might exploit when trying to override a power of attorney directive.
• Facility Compliance Demand Letters: Our attorneys draft formal legal correspondence requiring the nursing home to honor your POA and outlining the legal consequences of continued non-compliance.
• Care Conference Representation: We attend care planning meetings with you to ensure the nursing home acknowledges your authority as POA and prevents attempts to override your decision-making power.
• Ombudsman Coordination: Our team works with your state's Long-Term Care Ombudsman to file formal complaints about the nursing home's attempt to override a power of attorney arrangement.
• Regulatory Agency Reporting: We help document and report violations to state licensing agencies when nursing homes unlawfully attempt to override a power of attorney documents.
• Injunctive Relief: In urgent situations, we can seek court orders requiring the nursing home to immediately recognize your POA authority and prevent further attempts to override your powers.
• Agent Authority Clarification: We help clarify the specific powers granted in your POA document, addressing any ambiguities that might give a nursing home perceived justification to override your authority.
• Legal Opinion Letters: Our attorneys provide formal legal opinions confirming the validity of your POA that can be presented to nursing home administration to overcome resistance.
• Contract Interference Claims: We can pursue legal action against facilities for tortious interference with the contractual relationship established by your power of attorney.
• Administrative Hearing Representation: Our lawyers represent you in administrative proceedings against nursing homes that violate regulations by attempting to override a power of attorney document.
• Evidence Preservation: We help collect and preserve evidence of a nursing home's attempts to override a power of attorney, which strengthens your position in any legal proceedings.
• Damages Assessment: Our team evaluates potential harm caused by the nursing home's refusal to honor your POA and determines appropriate compensation claims.
• Settlement Negotiation: We pursue resolution through skilled negotiation before proceeding to litigation, often achieving compliance without prolonged legal battles.
• Litigation Strategy: When necessary, we develop comprehensive litigation approaches to compel nursing homes that repeatedly attempt to override a power of attorney arrangement to comply with the law.
• Family Communication Support: We help you explain the situation and your legal strategy to other family members, creating a unified approach against the nursing home's actions.
• Medical Provider Coordination: Our attorneys communicate with your loved one's physicians to ensure they understand and respect your POA authority despite nursing home interference.
• Remedial Compliance Plans: We develop structured agreements outlining how the nursing home must work with you as POA going forward to prevent future attempts to override your authority.
• POA Reinforcement Strategies: We implement additional legal safeguards to strengthen your POA against future challenges from any facility attempting to override it.
• Alternative Placement Guidance: If necessary, we help you identify and transition to nursing homes that will respect your power of attorney without attempting to override your authority.

Types of Power of Attorney Cases We Take

Our elder law attorneys handle a wide range of power of attorney matters to ensure your loved ones' wishes are respected and their interests protected, especially when nursing homes attempt to override a power of attorney arrangement.

• Healthcare Power of Attorney Creation: We draft comprehensive healthcare POA documents that clearly establish your agent's authority to make medical decisions, reducing the risk of nursing homes attempting to override a power of attorney.
• Financial Power of Attorney Establishment: Our attorneys create robust financial POAs that give your chosen agent the specific powers needed to manage assets and pay for care without interference.
• POA Disputes with Nursing Homes: We represent families when nursing homes attempt to override a power of attorney directives, ensuring your agent's decisions are respected and followed.
• Emergency POA Services: For situations requiring immediate intervention, we offer expedited POA creation and enforcement when a loved one's condition suddenly changes.
• POA Validity Challenges: We defend against claims that your power of attorney is invalid, outdated, or insufficiently specific, which are common tactics facilities use to override a power of attorney arrangement.
• Agent Authority Clarification: We help resolve disputes about the scope of an agent's powers when healthcare facilities question what decisions your POA agent can make.
• Nursing Home Contract Review: Our team examines facility admission agreements to identify and modify clauses that could undermine your POA's effectiveness or create grounds to override a power of attorney provision.
• Successor Agent Appointments: We handle the legal transition when a primary agent can no longer serve and a successor must step in, preventing gaps that nursing homes might exploit.
• POA Enforcement Actions: When necessary, we pursue legal remedies against facilities that persistently refuse to honor valid powers of attorney.
• Limited POA Creation: For clients who want to grant specific, targeted powers rather than broad authority, we craft limited POAs that address particular concerns.
• POA Revocation Assistance: We help properly terminate existing POA arrangements when circumstances change or concerns about an agent's conduct arise.
• Springing POA Implementation: When a previously inactive "springing" power of attorney needs to be activated due to incapacity, we handle the legal documentation and verification.
• POA Modernization: We update older POA documents to ensure they comply with current laws and include provisions specifically addressing nursing home care.
• Interstate POA Issues: Our attorneys resolve complications when powers of attorney must be enforced across state lines or when agents live in different states than the principal.
• POA Agent Guidance: We provide ongoing legal support to agents who encounter resistance when exercising their authority, particularly when nursing homes attempt to override a power of attorney decision.
• POA Abuse Intervention: In cases where an agent is misusing their authority, we take swift action to protect vulnerable seniors from exploitation.
• Medicaid-Compliant POA Creation: We develop powers of attorney with specific provisions that facilitate Medicaid planning without triggering eligibility problems.
• Physician Orders for Life-Sustaining Treatment (POLST) Coordination: Our team ensures your POA works seamlessly with POLST forms to prevent conflicts about end-of-life care decisions.
• Capacity Evaluation Documentation: We coordinate with medical professionals to document capacity at the time of POA signing, creating evidence that helps prevent future challenges.
• Facility Non-Compliance Litigation: When all other approaches fail, we litigate against nursing homes that unlawfully override a power of attorney directive, seeking both compliance and damages.

Protect Your Loved One's Wishes Today

Don't wait until a nursing home attempts to override a power of attorney for your loved one to seek legal protection. At Senior Advocate Center, we're committed to safeguarding your loved one's autonomy and ensuring their wishes are honored. Contact us today for a confidential consultation about your power of attorney needs.

Power of Attorney FAQs

What makes a power of attorney "durable"? A durable power of attorney contains specific language stating it remains in effect even if the principal becomes incapacitated. Without durability provisions, a standard POA terminates when the principal can no longer make decisions, which is often when it's needed most.

When does a power of attorney take effect? A standard power of attorney takes effect immediately upon proper execution. A "springing" power of attorney, however, only becomes effective when a specified event occurs, typically the principal's incapacity as certified by a physician.

Can I have multiple agents on my power of attorney? Yes, you can name co-agents who act together or separately. However, naming multiple agents can create complications if they disagree about decisions, potentially giving a nursing home grounds to question which agent's instructions to follow.

How often should I update my power of attorney documents? We recommend reviewing your power of attorney every 3-5 years or whenever there are significant changes in your life, such as moving to a new state, changes in health, or changes in your relationship with your chosen agent.

Can a power of attorney be challenged by family members? Yes, family members who disagree with the agent's decisions or believe the document was executed improperly can challenge a power of attorney in court, which is why proper execution and documentation of capacity are crucial.

What's the difference between a general and limited power of attorney? A general power of attorney grants broad authority over multiple aspects of your affairs, while a limited power of attorney restricts authority to specific matters or transactions, such as selling a particular property or managing specific investments.

Does my power of attorney expire? A power of attorney can expire if it contains an expiration date, if the principal revokes it, upon the principal's death, or if a court invalidates it. A non-durable POA also expires when the principal becomes incapacitated.

Can I revoke a power of attorney if I change my mind? Yes, as long as you still have capacity, you can revoke a power of attorney at any time by executing a formal revocation document, notifying your agent in writing, and informing any third parties who have the original document.

What happens to a power of attorney after death? A power of attorney automatically terminates upon the principal's death. At that point, the authority to manage the deceased's affairs transfers to the executor or personal representative named in their will.

Is a power of attorney the same as guardianship? No, a power of attorney is a private arrangement voluntarily created by the principal, while guardianship is court-ordered when someone is deemed incapable of managing their affairs and typically terminates any existing POA.

Can my agent make decisions that go against my known wishes? No, an agent has a fiduciary duty to act according to the principal's known wishes and best interests. If an agent makes decisions contrary to these obligations, they can be removed by court action.

Do all states recognize powers of attorney from other states? Most states recognize validly executed out-of-state powers of attorney, but some may have different requirements or limitations. If you move or have property in multiple states, it's advisable to have your documents reviewed for multi-state compliance.

How much does it cost to create a power of attorney? The cost varies depending on complexity, but creating a properly executed power of attorney with legal guidance is typically more affordable than addressing problems that arise from improperly drafted documents or court proceedings for guardianship.

What's the difference between a power of attorney and an advance directive? A healthcare power of attorney names someone to make medical decisions for you, while an advance directive (like a living will) specifies your wishes regarding certain medical treatments. These documents work together as part of a comprehensive plan.

Can a power of attorney override a nursing home's medical recommendations? Yes, a properly executed healthcare power of attorney gives your agent the authority to accept or reject medical recommendations, provided they're acting in accordance with your best interests and known preferences.