Giving up independence and being forced into a nursing home is one of the biggest fears elderly people have.  You may be somewhat relieved to know that as long as you have the ability to make your own medical decisions, no one can force you to go anywhere you don’t want to go. Your doctor or your nurse can’t force you.  Even a person who you appointed as your agent in your power of attorney (POA) can’t force you.  If your family is insisting that you go to a nursing home or skilled nursing facility, and you don’t want to, if you have the capacity to make the decision not to, no matter how poor that decision is, you have the right to remain home against everyone’s wishes. 

However, if your mental capacity is diminished and you are unable to make your own medical decisions, you may be placed in a nursing home for your safety and wellbeing. If you haven’t done any planning, or proper planning in advance, a guardian or conservator could be appointed by the court to act on your behalf, to make medical decisions for you, and you may be placed there. This appointed person usually is a lawyer who knows nothing about you.  Establishing a guardian is extremely unpleasant for everyone, and it’s also an expensive court process. It is not free. 

In circumstances where there are no family members, and no POA, and the hospital has to establish a guardian for you, and that guardian recommends a nursing home (which they will if the hospital recommends it), then a hospital can force you to go to a nursing home or skilled nursing facility.

Also, if you are unable to make your own medical decisions because you lack the capacity to do so, and you have appointed an agent in a power of attorney (POA), your agent can force you to go anywhere they want you to go, whether you agree to it or not. When considering who to appoint in your legal planning documents, it is so important to make sure you choose someone you trust who knows and will honor your wishes.

Who decides whether you have capacity or not to make your own decisions?

You may be surprised to learn that any licensed physician can make that decision even though most physicians have never been formally trained in the process. Your family doctor could make that decision. Your surgeon could document your lack of capacity and render you incapable of making your own medical decisions. Even your dermatologist can get involved in your medical decision-making process.

If you are concerned about where you will end up if you are unable to make these important decisions for yourself, you need to have the proper legal documentation in place, prepared in advance. Downloading do-it-yourself forms from the internet usually will not be enough to give you the protection you need. An experience counseling-based estate planning and elder law attorney can guide you in this way and provide you with the necessary documents to carry out your wishes.

Monet Binder, Esq., has her practice in Queens, dedicated to protecting families, their legacies, and values. All halachic documents are approved by the Bais Havaad Halacha Center in Lakewood, under the direction of Rabbi Dovid Grossman and the guidance of Harav Shmuel Kaminetsky, shlita, as well as other leading halachic authorities. To learn more about how a power of attorney can help you, you can send her an email at This email address is being protected from spambots. You need JavaScript enabled to view it. or call 718-514-7575.