Can you avoid the nursing home?
When thinking about old age, many people are adamant that they never want to be placed into a nursing home. Is it possible to prevent that ever happening to you?
Whilst you have capacity to make your own decisions, you cannot be forced into a nursing home against your own will.
If you lose capacity to make your own decisions, then one of two things will happen:
- If you have not appointed an enduring guardian, then an application to the Guardianship Tribunal may be necessary. This would result in somebody being appointed as your guardian. This may include appointment of the NSW Trustee and Guardian. That person (or organisation) would make a decision as to what is in your best interests. If you have clearly expressed a view that you do not wish to be placed into a nursing home, that view must be taken into account, but is not conclusive.
- If you have appointed an enduring guardian, via a document complying with the legislation, then that person will make decisions about what is in your best interests. The document appointing the guardian can specify that he or she must not place you into a nursing home. The guardian is then bound by that restriction. However, this may not necessarily be the end of it. It would be possible for somebody to apply to the Guardianship Tribunal for orders overturning that restriction. The Tribunal would need to be satisfied that circumstances had arisen which you could not have foreseen when placing the restriction and/or that it is in your best interests to go into a nursing home despite your wishes to the contrary.
If you wish to ensure that your views will be given proper weight in the event of you losing capacity to make your own decisions, then it is essential that you put in place a properly prepared, binding document which appoints an appropriate person as your enduring guardian and sets out any restrictions or wishes. Our estate planning solicitors can assist you with this, whether as part of your overall estate planning review or on its own.
