When a Parent Refuses Assisted Living: What a Family Can and Cannot Do

Usually, yes. California's Probate Code starts from a presumption that all persons have the capacity to make decisions and to be responsible for them. It adds that a person who has a mental or physical disorder may still be capable of contracting, making medical decisions and performing other actions.

The licensing law points the same way. Assisted living communities and board and care homes are licensed in California as residential care facilities for the elderly (RCFEs), and the Department of Social Services describes them as chosen voluntarily by the individual or by the individual's guardian, conservator or other responsible person. A resident keeps personal rights after moving in, which are covered in resident rights in a California RCFE.

None of this means the family is wrong to worry. It means the first tools are conversation, the doctor and time.

Capacity is a legal idea, not a diagnosis. The Probate Code says a court finding that a person lacks the capacity to do a specific act should be based on evidence of a deficit in one or more of the person's mental functions, rather than on a diagnosis of a mental or physical disorder.

Families cannot declare a parent incapable on their own. A doctor can evaluate memory, judgment and safety and put the findings in writing, and that is often the most useful first step. Whether those findings mean your mother or father lacks legal capacity for a particular decision is a question for an elder law attorney and, if it comes to that, a judge.

If you are still at the stage of raising the subject, start with how to talk to a parent about assisted living.

The descriptions below come from the California Courts self-help guide and the Probate Code. They are general information, not advice about your family's documents.

Two points are easy to miss. First, a power of attorney and an advance health care directive are made by the parent. A relative cannot make one on a parent's behalf. Second, the Probate Code says nothing in the health care decisions law authorizes an agent under a power of attorney for health care to make a health care decision if the person objects. If the person objects, the matter is handled as though there were no power of attorney.

Whether a given document gives an agent any say over where a parent lives depends on its wording and on the law. An elder law attorney can read it and tell you.

Conservatorship is the court route. The California Courts guide says that anyone asking a court for a conservatorship must show that less restrictive options would not work. Under the Probate Code, a conservator of the person may be appointed for someone who is unable to provide properly for their personal needs for physical health, food, clothing or shelter. The standard of proof is clear and convincing evidence. What a conservator may decide, including where the person lives, is set by the court and the Probate Code.

Sometimes the worry is past the point of persuasion: a parent who is not eating, is wandering or is being exploited. If someone is in immediate danger, call 911.

Every California county has an Adult Protective Services (APS) agency. The Department of Social Services says APS helps adults 60 and older, and dependent adults, when they are unable to meet their own needs or are victims of abuse, neglect or exploitation. County APS agencies investigate reports about people who live in private homes, apartments, hotels or hospitals. To make a report, call 1-833-401-0832 and enter the zip code to reach the county's APS office, 24 hours a day, 7 days a week.

The state says APS staff evaluate cases and arrange for services such as advocacy, counseling, money management, out-of-home placement or conservatorship. APS is not a way to force a move. Under the Welfare and Institutions Code, a victim of elder abuse may refuse or withdraw consent at any time to an investigation or to protective services, and the agency acts only with the person's consent unless a crime is alleged. The same section says that when a person is so incapacitated that they cannot legally give or deny consent, a petition for a temporary conservatorship may be started.

APS covers people living in the community. Concerns about a licensed care home go to California's Community Care Licensing Division, whose complaint line is 1-844-538-8766.

Most refusals are settled over weeks, not in court, as a parent's objections are heard and answered. These steps are practical, not legal.

1. 1

   Find out what the no is about

   Cost, losing the house, a pet, a spouse's memory, fear of a nursing home. Each has a different answer.

2. 2

   Bring in the doctor

   Ask for a visit focused on safety at home, and ask the doctor to speak to your parent directly.

3. 3

   Offer choices, not a verdict

   More help at home may be enough for now. Our comparison of assisted living and home care lays out when each tends to fit.

4. 4

   Suggest a short stay

   Some homes take short-term residents when a room is open. A respite stay lets a parent see a home without committing to it.

5. 5

   Get legal advice early

   If no power of attorney or health care directive exists, an elder law attorney can explain the options. The California Courts self-help guide lists court self-help centers, lawyer referral services and legal aid.

Hamssa Benrekia is a senior living placement specialist in Torrance. She works alone, so the family talks with the same person each time. She can describe what local assisted living communities and board and care homes in the South Bay and Harbor area are like, and she goes on tours with families. She does not give legal advice and cannot place anyone who has the right to refuse and does. When your family is ready to look, contact Hamssa. Related topics are in the California Assisted Living Placement Guide.