Assisted Living Key: the Right Health Decision Framework

Assisted Living Legal Key: Setting Up the Right Health Decision Framework

“An ounce of prevention is worth a pound of cure.”

No quote could be more fitting than legal and financial planning relating to an assisted living move.

Are you thinking about moving to an assisted living facility?  Or helping a parent move to assisted living facility?

If yes, you are in a prime position to help prevent unnecessary financial loss.

A move to assisted living, or a continued stay in assisted living, involves a high monthly cost.  If you do not have the correct legal instruments in place, then your stay could be disrupted.

This series of articles cover 5 key considerations for families looking in to a move into an assisted living facility.

The 5 keys decisions are:

  • How can you avoid decision-making red tape (or sibling clashes) regarding medical and care decisions? (this article)
  • Do you want to avoid financial loss and frustrations due to improper account setup?
  • Would you like to maximize veteran’s benefits for assisted living care?
  • What financial pitfalls should you consider about the house?
  • How do you protect assets ahead of time from a nursing home spend down?

Your answers about the medical and aging care issues are in this article.

Documenting Your Plans Regarding Healthcare and Avoid the Court System if there is a Family Dispute regarding Your Assisted Living Stay

You want to set up legal instruments to give your family direction about your care wishes.

You may have these done in the past, but the need is real.

Are your directions current?

Do you have the right people named?  Maybe someone moved away and the “closer to you” child needs to be named.

The legal instruments include:

Designation of Healthcare Surrogate: this will determine who will make medical decisions for you if you cannot make medical decisions.  Your surrogate is the one that signs a DNR (do not resuscitate), says whether or not life support is remove, or whether you go to a nursing home or not.

Your surrogate is also the one to make the decision to place you in an assisted living facility.

The surrogate also can decide whether or not to move you to skilled nursing care, if that is necessary.

Other states refer to the designation of healthcare surrogate (Florida legal term) as a healthcare proxy or healthcare power of attorney.

HIPAA Authorization: ever try asking your family doctor about where you spouse fills her prescriptions?  I have. The answer I received, “I can’t tell you; it is protected information by HIPAA.”  HIPAA is a federal law that penalizes medical professionals from sharing your health information with others.  Most physician’s offices will have you sign one that they keep on file.  But what if you’re rushed to a hospital that does not have this information?  A HIPAA authorization serves as a blanket release.

Living Will: this is a specific directive concerning your medical wishes if you’re incapacitated and cannot express your wishes.  Incapacitated could mean dementia in your day-to-day operation, or it could mean a medical emergency where someone determine if you live or die.

End of life and aging care decisions can tear families apart.  Put it in writing.

A living will can:

  • State your wishes about whether or not you want life support.
  • Direct how you wish to be cared for if you have dementia.
  • Express what types of medical treatment you do or do not want.

Do Not Resuscitate Order (DNR):  You don’t handle this one at a lawyer’s office.  You need to talk to your doctor about this.  The DNR directs whether or not paramedics or emergency room personnel will perform life saving measures on you.

Having these instruments in place prevent you from having to go to guardianship court (I’ll explain in the next section) if there is a dispute in your family, or if there is a question about what you would have wanted.

Pre-Need Guardian Designation: Do you feel like one of your children could be an issue?  Would you like to give your “helper” child a pretty strong way to fend off his or her money hungry sibling (or his or her spouse)? The pre-need guardian designation provides your “helper” child with a nuclear option if a dispute arises.  If this child is taken to court about your medical decision, then your “helper” child will be the one in charge of you.

These legal instruments are important in the assisted living context because of the cost of assisted living.

  • What if your family does not want to pay for the $5,000 a month bill. That actually happens.
  • What if you wanted to be treated a certain way if you had dementia?
  • What kind of care would you want in addition to assisted living? Do you want extra caregivers? Do you want extra treatments?

Why Put these Planning Options in Place Now? During your Assisted Living Stay…

Remember, some family members will think that spending money on care is $1 less they’ll receive in their inheritance.

With this planning, you can:

  • Balance the decision makers out.
  • Use checks and balance.
  • Write and consider specific directions on what you want done.
  • Make sure the assisted living facility has these documents on family.
  • Make sure you have back-ups in place.

You may think your children get along but consider these possible disputes that could arise when someone needs care that can easily cost $5,000 per month:

  • Adult children versus their step-parent.
  • Adult child “A” versus Adult child “B” who is being strongly influenced by his or her spouse.
  • Adult child “A” who has a substance abuse issue.
  • Adult child “A’ who is out of town and does not understand what it is like caring for a parent and does not want to spend the money on assisted living care.
  • Adult child “A” who thinks assisted living is just like a nursing home, and feels like Adult child “B” is placing the parent in harm’s way.
  • Adult child “A” who thinks in-home care is better, but won’t help take care of a parent who needs help from everyone.

What about the 5 Wishes?

The 5 Wishes that you can get from Community Hospice is fine as long as it does not go in front of a judge because there is a family dispute.

Homemade legal documents, or legal instruments not prepared through an attorney are ripe for litigators.  Litigators come into play if there is any type of family dispute.

What’s the Risk in Not Putting Proper Healthcare Legal Instruments in Place while in Assisted Living?

The big risk is a dispute between your children about your wishes.

It could mean a court trip, or it could mean bad blood between them for the rest of their lives.

Let me explain the court trip…

If you have two family members strongly passionate about completely opposite things concerning your care, then they can settle the issue in guardianship court.

Guardianship is very similar to probate court.

The fees and costs are high because you have to be determined incapacitated by 3 medical professionals, there are two filing fees, and everyone gets an attorney.

The judge is in the position to decide the best person to put in charge of making your medical and financial decisions.  Each family member is likely to pull out dirt on each other.

The costs of guardianship can easily exceed $7,500 or more.  The costs can hit the $15,000 + range if there is a court fight.

You never want to get into a fight about healthcare decisions and go to guardianship court.  Most people get torn up from the experience and a simple paid consultation can free up this problem from happening.

If you are in Florida and would like assistance with establishing the legal framework for an assisted living stay, then CLICK HERE to get started with your first step.

Legal and Financial Advice for Caregivers and Families

Florida Board Certified Elder Law Attorney Kellen Bryant assists caregivers and families with asset protection planning for long-term care, wills, trusts, and administration of estates in probate court.  Our law firm practice assists families in Northeast Florida and parts of central Florida from our Pasco County, Florida office.  Click the button to contact us for additional information, to ask a question, or to schedule a consultation.


Kellen Bryant

Kellen Bryant is an estate planning and elder law attorney practicing law in Jacksonville, Florida. A native of Jacksonville, Kellen graduated with honors from both Stetson Law School and FSU. Kellen has previously worked for judges and a large law firm . Kellen is currently a member of NAELA, Florida Bar Elder Law Section, and the Florida chapter of NAELA. Kellen is the author of many educational legal guides, which can be found at