Can I force my aging parents to leave their home?

The transition from the family home to an alternative living arrangement is not always a pleasant one for aging individuals. Often the change is brought about not by a real desire to move, but by physical and mental impairments that may accompany aging.

When a parent doesn't want to move, it can be a delicate subject. If the aging parent's children see that the parent is struggling with mobility or health or loneliness, they may want to suggest that the parent live in a retirement community or with one of the kids, or if there are daily living issues perhaps in an assisted living facility. Ideally, the parent will agree that the change is necessary and would be beneficial, and will participate fully in finding the right place to live.

But what if the parent doesn't agree? I've certainly run across a few seniors in my practice who dig in their heels and refuse to move, consequences be damned. Depending on the particulars of the situation, it may be possible to find caregivers who will come in to the parent's home to give the needed assistance, but even that may not be enough.

This leaves families at an impasse. The kids know that their parent isn't safe, or is slowly wasting away from lack of exercise and interaction. They are absolutely positive that the parent's life would be vastly improved by a change of address. The parent becomes defensive and upset when the topic is raised. Now what?

This is where the kids begin to wonder if they may have to force the parent to move, for the parent's own good.

Under normal circumstances, nobody can be forced to move out of a house they own and live in without bothering anyone else. A private citizen doesn't lose that right just because he or she is old. Therefore, if you can't persuade your parent to move willingly, you will need some legal authority to make decisions for them before you can take action to make them move against their will.

You can make decisions about where your parent lives if you are appointed by the parent under a Personal Directive (also known as Health Care Directive, Advance Directive, Health Care Proxy, etc). Being named isn't enough; you are also going to have to have your parent declared incompetent by at least one doctor to bring the directive into effect. Each document states what it takes to spring it into effect.

If your parent has not signed a Personal Directive, you may have to apply to the court to become your parent's guardian. This procedure also hinges on the finding of incompetence by a doctor.

For the record, I am not at all in favour of aging parents being forced to do things because their children want them to. However, I know that there are some seniors out there who truly are at terrible physical risk because they refuse to give up their homes, particularly where there isn't much money to pay for in-home caregivers. Hopefully a persistent son or daughter can help the stubborn parent see the advantages of moving.

Alternatives to court-ordered guardianship and trusteeship for an aging parent

The legislation setting out policy and procedures for becoming a guardian and/or a trustee for aging parents is made provincially, not federally, so it differs across the country. One concept that is present in the legislation of most parts of Canada is that a full guardianship and trusteeship is a last resort. Other, less intrusive, means of helping an aging parent should be tried first, or at least considered.

The idea behind this is that taking away full control of a person's money and life is going overboard. It's like doing a major surgery when all you needed was a few stitches. The amount and type of help offered should be appropriate to the person's specific situation.

Now that we've established that looking at alternative solutions is a good idea, let's look more closely. What exactly are those alternative solutions?

Enduring (Continuing/Durable) Power of Attorney - this document allows a senior to choose the person who will make financial decisions once the senior loses the ability to do that for himself. It enables someone to do all of the things - and more - than someone could with a court appointment as trustee. It's cheaper and quicker, but best of all it allows the senior to exercise control over important decisions.

Health Care (Personal/Medical/Advance) Directive - this document allows the appointed person to make decisions about health care, medical procedures, place of residence and many more matters when the senior can no longer do that. Again, it allows the senior to choose who represents him.

Representation agreements/Supported decision making - under this kind of arrangement, the senior can choose someone to help him or her with decision-making to the extent that he or she wants help. Unlike powers of attorney or health directives, this arrangement enables the person to make decisions with the senior, rather than for the senior. This is available in one form or another in BC, Saskatchewan, Yukon and Alberta.

Informal trusteeship - this refers to an arrangement whereby a person gains legal authority over another person's pension or benefit income, to use those income sources on behalf of the person who owns them. He or she may collect the pensions, deposit them and use them to pay the owner's bills. Informal trusteeship is available for Old Age Security, Canada Pension Plan, Guaranteed Income Supplement, Spouse's Allowance, Survivor's Allowance and Veteran's Affairs benefits. I posted about informal trusteeship once before - click here to read it.

In-Home Support - (sometimes also called Aging in Place support) - this refers to any combination of medical services, housekeeping services, companionship and transportation that allows an aging person to continue living in his or her own house rather than moving to a seniors' residence. If the problems are more severe, medically speaking, the in-home care might have to be a full-time live-in caregiver.

Renovations to the senior's home - making appropriate renovations might make it possible for a senior to stay in his or her home longer, particularly when teamed with in-home support. A variation on this is to renovate the home of one of the senior's children and have the senior move in there.

Custodial bank account - this is a type of account offered at most banks that provides additional services, such as managing the investments, getting the annual tax return filed and paying bills.

Joint assets - those of you who read my blog often know that I'm not generally in favour of placing a senior's assets in joint names with anyone but his or her spouse, but from time to time it's the right solution. Placing assets in joint names gives both people a right of survivorship of the assets, so it should only be used when the senior has an opportunity to talk to a lawyer first.