Child Wants Mom Moved Out of Assisted Living Facility Due to COVID-19

By | 2022-01-11T09:10:15-05:00 January 6th, 2022|0 Comments

When a guardian or conservator is appointed for an adult person (the ward), the guardian’s responsibility is to make decisions based on the welfare of the ward, regardless of the type of decision that has to be made.

In the following case, a non-family member guardian’s decision to keep her ward in an assisted living facility during the COVID-19 pandemic was legally challenged by one of the ward’s daughters.

Details of the Case

Court proceedings were initiated by two adult daughters to appoint a guardian for their 79-year-old mother. The court proceedings found that the mother had dementia, was disabled, and was unable to care for “her person and property.”

The court found that there was “good cause” not to appoint either of the daughters as their mother’s guardian due to their “lack of credibility and the acrimony between them.”

Instead, the court appointed a woman who was the director of an agency on aging as the personal guardian. One of the daughters appealed the decision, but the special court of appeals affirmed the trial court decision.

One of the daughters then filed an emergency motion to temporarily change her mother’s current residence from an assisted living facility to her own home. She alleged, among other things, that:

  • She had safety concerns for her mother due to the COVID-19 pandemic.
  • The county in which the assisted living facility was located had a high rate of cases and deaths due to COVID-19.
  • Residents in long-term care facilities were very vulnerable to COVID-19.
  • The facility was small, so maintaining safe distancing would be impossible unless residents were kept in their rooms most of the day.

The guardian opposed the daughter’s motion, stating that:

  • There were no COVID-19 cases among the facility’s 75 residents.
  • The governor had ordered people to shelter in place and had not recommended any resident changes to those in nursing homes.
  • The daughter’s motion included no details about any care plan for the mother, no information on the daughter and her husband’s health, and whether it was intended to re-admit the mother to the facility once the pandemic was over.
  • The mother’s physician submitted a statement that it would be inadvisable for the mother to change residency at the time due to her need for constant care, including medication administration.
  • Moving a resident out of the facility and then back would place that resident and others at risk.

Amid additional, unfounded claims by the daughter that the assisted living facility was unsanitary and that the mother had suffered abuse at the home, she asked for a hearing on her motion.

The court denied her motion without a hearing. The daughter appealed that decision, arguing the decision was an abuse of discretion by the court.

Appellate Court Decision

Among other statements, the court stated that it was the daughter’s burden of proving that a change from the assisted living facility to her home was in the mother’s best interest. The daughter did not meet this burden.

It also cited state case law that a personal guardian has the legal authority to establish a ward’s residence as long as there is court authorization for any change of domicile.

Additionally, the appellate court found no abuse of discretion by the lower court in ordering that it was in the mother’s best interest to stay at the assisted living home.

The lower court’s ruling was affirmed.

How the Court’s Ruling Applies to You and Your Practice

The appellate court’s decision is not precedent and cannot be cited as persuasive authority in the state. Even so, it has guidelines that may apply to you, regardless of the state in which you live.

This case involved an individual who was a personal guardian for the ward. As such, she had the responsibility to provide for all the ward’s personal needs, including health care.

If you work with adult patients who have been appointed a guardian, you need to ensure that the person is a personal guardian (not an estate guardian, whose responsibilities include the ward’s personal and real property, not personal needs).

In addition, it is important to know what limitations, if any, have been specified in the guardianship order.

In either case, it is essential to follow your facility’s policy on requesting guardianship papers and making them a part of the patient’s medical record.

Remember that if a personal guardian is appointed for one of your patients, it is that person who makes healthcare decisions for the ward. No other individual, including a family member, has the authority to do so.

If you work with minor patients that have been appointed a personal guardian due to parental rights being limited or rescinded, the same concerns discussed above apply to that guardianship.

As seen here, a guardianship cannot bend or change due to an outside force, such as a pandemic.

Had the daughter presented facts and evidence about her mother continuing to reside in the assisted living facility during the pandemic, along with realistic plans for a change to her home, the change of residency might have been granted.

Guardianship law mandates must be followed during any circumstance so that the ward’s best interests are always at the forefront of any decision.


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About the Author:

Nancy J. Brent, MS, JD, RN
Our legal information columnist Nancy J. Brent, MS, JD, RN, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. Her posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.

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