Nursing Home Ombudsman and Power of Attorney: When Mom Can't Consent

A nursing home ombudsman can still help when your mom can't consent, and even when the person holding her power of attorney or guardianship is the problem. You may have been told the ombudsman "follows the resident's wishes," and then wondered what that means when Mom has dementia, or when your sister holds the POA and keeps saying no. The federal ombudsman rule answers each of those cases, and it gives you more to work with than that one line suggests.1,2

In This Guide

• Key Takeaways
• How the Nursing Home Ombudsman Handles Power of Attorney and Consent
• Who Counts as Mom's Representative?
• Situation 1: Mom Has Memory Loss but Can Still Say What She Wants
• Situation 2: Mom Can't Consent and Has No One to Speak for Her
• Situation 3: Mom Can't Consent and Her POA or Guardian Is the Problem
• Can the Nursing Home Ombudsman Help Revoke Mom's Power of Attorney or Change Her Guardian?
• Each Situation at a Glance
• What You Can Do on Your Own
• Frequently Asked Questions
• Learn More

How the Nursing Home Ombudsman Handles Power of Attorney and Consent

If you're reading this, something at your mom's nursing home is wrong, and the person who is supposed to speak for her either can't or won't. That's a lonely place to be. The good news is that the ombudsman's rules were written with your situation in mind.

The long-term care ombudsman is the free, confidential advocate every state provides for people living in nursing homes and similar care facilities, under the federal Older Americans Act.4 Our guide to the long-term care ombudsman covers what the program does and how to reach yours. This page picks up where the usual explanation stops: when someone other than the resident files a complaint, the program must find out, to the extent possible, what the resident wants and follow that direction.4

So the real question is how the ombudsman learns what Mom wants, and what happens when she can't say. The federal rule at 45 CFR 1324.19 answers that differently for three situations, and each one leaves you with a clear next step.2

Who Counts as Mom's Representative?

Before the three situations, it helps to know who the rule treats as speaking for your mom. Under the federal ombudsman rule at 45 CFR 1324.1, a "resident representative" can be any of these:5

• Someone Mom chose: an individual the resident picked to support her in decision-making, access her medical, social or other personal information, manage her finances, or receive notifications for her.5
• Someone authorized by law: a person authorized by State or Federal law to act for her in those ways, including an agent under a power of attorney, a representative payee or another fiduciary.5
• A legal representative: as that term is used in section 712 of the Older Americans Act.5
• A guardian or conservator: one the court appointed for her.5

There's an important limit. The rule says nothing in it is meant to expand any resident representative's authority beyond what the resident, State or Federal law, or a court specifically authorized.5 In other words, being on the paperwork gives your sister only the authority the paperwork gives her. Our guide to guardianship vs. power of attorney explains what each document usually lets someone do.

Situation 1: Mom Has Memory Loss but Can Still Say What She Wants

Watching Mom's memory slip is hard enough without being told she's "unable to consent" to help. The federal ombudsman rule leaves more room than families often expect.

Under 45 CFR 1324.19(b), a resident's informed consent for complaint processing can be communicated in writing, or orally or visually, including through auxiliary aids and services; when consent is oral or visual, the ombudsman must document it at the time under the program's procedures.2 When federal officials finalized the rule in 2015, the federal Administration on Aging said it agreed that residents with varying abilities may communicate consent in a number of ways, and it added "visually" to the final rule wherever "consent orally" appeared.2

The federal ombudsman rule (45 CFR 1324.19) also says that whoever files the complaint, the ombudsman must support and maximize the resident's participation in resolving it, and must offer the resident privacy to share information confidentially.2 That privacy matters if a relative or staff member tends to answer for her.

Your next step: When you call, tell the ombudsman how Mom communicates best: the time of day she's sharpest, whether she does better with yes-or-no questions, whether she has hearing aids or glasses that help. That gives the ombudsman the best chance to hear Mom directly instead of through someone else.

Situation 2: Mom Can't Consent and Has No One to Speak for Her

Some residents can't communicate consent at all and have no POA agent, guardian or chosen representative. If that's your mom, you may worry the ombudsman will simply close the file. The federal rule says otherwise.

Under 45 CFR 1324.19(b)(2)(iii), when a resident is unable to communicate informed consent and has no resident representative, the ombudsman must take appropriate steps to investigate and work to resolve the complaint to protect the resident's health, safety, welfare and rights.2 In that case, where a resident can't communicate consent and has no representative, the ombudsman must also determine whether the complaint was resolved to the satisfaction of the complainant, meaning the person who filed it, possibly you.2

This situation also opens two narrow doors. The ombudsman can review a resident's records without consent when the resident can't communicate consent and has no legal representative, with the State Ombudsman's approval under the rule.6 And the ombudsman can refer suspected abuse, neglect or exploitation to an outside agency without consent when the rule's conditions are met and the program's procedures are followed.6

Your next step: Make the complaint yourself and say plainly that your mom can't communicate consent and has no one with legal authority to speak for her. If the longer-term gap is that nobody can make decisions for her, our guide to alternatives to guardianship walks through the options.

Situation 3: Mom Can't Consent and Her POA or Guardian Is the Problem

This is the hardest one. Maybe your brother holds the power of attorney and stopped paying the bill, or the guardian keeps refusing the therapy Mom needs. It can feel like the one person the system listens to is the one hurting her. The federal rules give the ombudsman real authority here.

ACL, the federal agency that oversees the program, says in its ombudsman FAQ that when a complaint is about an action, inaction or decision a resident's representative made with a service provider or agency that adversely affects the resident's health, safety, welfare or rights, the ombudsman program has authority to investigate and resolve it.1 Three rules then limit how much weight the ombudsman gives the POA agent or guardian:

1. The ombudsman checks the paperwork. Before relying on a representative to communicate or make decisions for the resident, the ombudsman must ascertain the extent of the authority granted by the court order, power of attorney or other document, or by other applicable law.1 A guardianship can be limited to certain areas of life, and the court order appointing a guardian should specify the scope of the guardian's authority.7
2. Best interests come first. When a resident can't communicate informed consent, the ombudsman may rely on the representative's consent or view of the resolution only if the ombudsman has no reasonable cause to believe the representative isn't acting in the resident's best interests.1
3. Narrow exceptions allow action over the representative's objection. The ombudsman can refer suspected abuse, neglect or exploitation to protective services, regulators or law enforcement without consent when the resident can't communicate consent, the ombudsman has reasonable cause to believe the representative's own action, inaction or decision may adversely affect the resident, the other conditions in the rule are met, and the State Ombudsman approves.6 The ombudsman can also review Mom's records over the representative's refusal when the records are needed to investigate a complaint, there's reasonable cause to believe the representative isn't acting in her best interests, and the State Ombudsman approves.6

Notice what decides those questions: the ombudsman's own judgment about reasonable cause, not a family member's say-so. Your part is to give the ombudsman something to judge. How the program handles abuse reports in general is covered in our ombudsman guide.

Your next step: Write down what you've seen, with dates: the missed bill, the refused treatment, the money that went missing. If you know what the POA document or guardianship order covers, say so. Specific facts are what an ombudsman needs to find reasonable cause.

Can the Nursing Home Ombudsman Help Revoke Mom's Power of Attorney or Change Her Guardian?

Stopping one bad decision is a relief, but you may also want the person out of the role. The ombudsman's part is to connect Mom with the people who can make that change, and her wishes still steer it.

ACL gives two examples. With the resident's consent, the ombudsman program could refer a resident who wants a power of attorney revoked to remedy financial exploitation by the agent to a non-profit legal services program.1 And where a resident wants a guardianship removed or the guardian changed, the program could help with a referral to legal services and provide information to the court overseeing the guardianship, again with the resident's consent.1

You have your own court route too. According to the U.S. Department of Justice, the person under guardianship, or anyone concerned about that person's rights, can petition the court to terminate the guardianship or modify it to restore some rights, though the process varies significantly by state, court and judge.8 Our guide on ending a guardianship walks through that process, and if the POA agent is taking Mom's money, see our guide to elder financial exploitation.

Each Situation at a Glance

The ombudsman powers in that table come from the federal ombudsman rule and ACL's guidance on it, not from any one state's rules.2,1,6

What You Can Do on Your Own

The ombudsman is one route, and you don't need anyone's consent to use the others. If Mom is in danger, don't wait on any of this.

• Immediate danger: Call 911. For suspected abuse, neglect or financial exploitation that isn't an emergency, report to a state or local Adult Protective Services (APS) agency.3 APS is run by state and local governments, and in every state it is charged with receiving and responding to reports of adult maltreatment.9
• Nursing home care or conditions: Medicare sends complaints about nursing home care, including abuse of a resident, to the State Survey Agency, which investigates them; you can file with the agency directly and anonymously, and 1-800-MEDICARE (1-800-633-4227) can give you its contact information.10 For an assisted living residence, see our guide to assisted living complaints.
• If you disagree with the ombudsman: Every state's ombudsman program must have a grievance process, and ACL lists a complainant who disagrees with how a case was resolved, such as a case closed before the work felt finished, among the matters it covers.11
• If someone retaliates: Under the Older Americans Act, each state must prohibit retaliation by a facility or other entity against any resident or other person for filing a complaint with or cooperating with the ombudsman, and must provide sanctions.12

Our step-by-step guide to reporting nursing home abuse goes deeper on each of these.

Learn More

Find personalized help when your parent's power of attorney or guardian is part of the problem at brevy.com.

The information on Brevy.com is for educational purposes only and is not a substitute for professional legal, financial, or medical advice. Rules vary by state and program and change frequently. Always verify with the relevant agency or a qualified professional. Brevy is not a law firm, financial advisor, or healthcare provider.