This column first appeared in the San Antonio Express News and other Hearst Newspapers on January 21, 2019.
Dear Mr. Premack: I live in San Antonio. My mom is self-pay at a nursing home outside of Houston. I am agent for my mom under her Durable Power of Attorney — but the nursing home insisted they keep my mom’s legal documents. I need to do some business for her, as her agent, and I did not keep a copy of the documents for myself during the pressure of leaving mom under their care. I am having trouble getting them to give me the documents. What can be done? OC
The original legal documents do not belong to, and do not belong at, the nursing facility. I am frankly surprised that they want the liability of holding your mother’s, or any of their resident’s, legal documents. You should call the nursing home administrator directly to discuss the issue. Further, your mother (assuming that she is well enough to do so) should instruct the administrator to return the original documents to her. To facilitate the transfer, you should be ready to drive to your mother’s nursing facility to discuss this in person, to help your mother obtain custody of the documents, and (at your mother’s request) to hold the documents for safekeeping.
The nursing home is entitled to copies of certain documents. They most definitely want and are entitled to a photocopy of her advance directives (the Medical Power of Attorney, the Directive to Physicians, and her Out-of-Hospital Do-Not-Resuscitate Order). They should not have nor should they store for her the originals of those documents; they should have copies, which by law are as valid for their use as the originals.
When it comes to liability, ask the nursing home to consider this scenario. Your mother is paying their monthly bill privately, which means that she has some money invested or in the bank. She has appointed you as her Agent in her Durable Power of Attorney. If you cannot access her funds because the nursing home will not release to you the Durable Power of Attorney, then it is possible they could be denying to you the ability to take action on an investment. If you plan to protect her by selling a risky investment but cannot do so because of the roadblock they have placed, and that investment indeed loses value, then your mother may have a cause of action (lawsuit) against the facility for those loses.
Additionally, Texas law specifies that nursing home residents who are age 60+ have, among other rights, the right to manage their personal and financial affairs. Withholding the original legal documents – like the Durable Power of Attorney – is easily construed as a violation of those legal rights.
If the facility administrator will not release the documents to your mother – or to you as her agent – then your next step should be to contact the Nursing Home Ombudsman. You can do so by calling The Office of the State Long-term Care Ombudsman (1-800-252-2412). You can also find your local Ombudsman via your local Area Agency on Aging (AAA). In Houston call the AAA at the Center on Aging at 800-296-2606. For those of you in the San Antonio area who need the Ombudsman’s help, call the AAA of Bexar County at 866-231-4922.
The second to worst-case scenario is if the nursing facility has already lost (or claims never to have possessed) the documents. In that case, contact your mother’s Elder Law Attorney to discuss obtaining updated replacement documents (assuming, again, that your mother is in good enough health to understand and agree to sign the new replacement documents). The worst case scenario is if your mother is no longer well enough to sign new updated documents.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.