This is one of the most difficult and emotional situations a family can face. When a person with Alzheimer’s lacks legal capacity but is physically unwilling to move, you cannot simply force them to go. The process must be handled through the legal system to ensure their safety and legal rights are protected.
The only way to legally compel an unwilling adult to move into a memory care facility is to obtain guardianship (sometimes called conservatorship if it includes financial matters) from a court.
The Legal Requirement: Establishing Incapacity
In the United States, all adults are presumed to be competent and have the right to make their own choices, including where they live. The diagnosis of Alzheimer’s alone is not enough to take that right away.
To override their objection and legally place them, you must prove to a court that the person is incapacitated.
Incapacity means a person is unable to make or communicate necessary decisions about their health, safety, and personal care. This definition is heavily dependent on the state’s incapacity statute.
If you have a power of attorney for health care, that document only allows you to make decisions for them when they lack capacity. It does not give you the power to override their direct, conscious objection to being moved if they retain legal capacity.
The Primary Legal Process: Guardianship
Guardianship is the legal mechanism that transfers decision-making power from the individual to a court-appointed person (the guardian).
Petition the Court
You or another concerned party must petition the court (usually the probate court in your county) to have a guardian appointed. The petition, generally, must clearly state:
- Why the person is incapacitated (supported by detailed doctor’s reports).
- Why guardianship is necessary (i.e., the current living situation poses a threat to their health or safety).
- Why moving them to a memory care facility is the least restrictive way to ensure their safety.
Court Investigation and Hearing
This process is formal and includes:
- Court visitor. The court will appoint an independent investigator, often called a court visitor, to meet with the person, assess their living situation, and interview all concerned parties (family, doctors, caregivers).
- Attorney. The court will often appoint an attorney to represent the person who is the subject of the guardianship proceeding to ensure their legal rights are protected.
- Medical evaluation. A court-appointed medical professional may also perform a capacity evaluation.
- The hearing. A judge reviews all evidence. If the judge agrees that the person is legally incapacitated and that moving them is necessary for their safety, the court will grant you (or another suitable person) guardianship, which includes the authority for placement decisions.
Options for Immediate or Emergency Safety
If the person is in imminent danger due to neglect, wandering, or self-harm, you may need a more immediate intervention.
If the individual is in immediate danger, call 911 or a local crisis line. If a doctor, police officer, or mental health professional determines the person is an imminent danger to themselves or others, they may be placed on an emergency mental health hold for evaluation. This is a temporary measure, not a permanent placement.
If the individual is facing urgent safety concerns, contact Adult Protective Services (APS) in your county. APS can launch an investigation to assess for abuse, neglect, or self-neglect and may petition the court for emergency guardianship if necessary to remove the person from a dangerous situation.
Consult an elder law attorney in your area immediately to get advice tailored to your specific state and circumstances.
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