Advance Directives for Nursing Home and Assisted Living Residents in Maine

Moving a parent or spouse into a nursing home or assisted living facility in Maine triggers an immediate question about advance directives — and not just because it's good planning. Federal law requires the facility to ask.

Under the Omnibus Budget Reconciliation Act (OBRA) and the Patient Self-Determination Act, every Medicare and Medicaid certified facility must ask incoming residents whether they have an advance directive, provide information about their right to create one, and document the answer in the medical record. They cannot condition admission on whether you have one — but they're required to bring it up.

The Staff Restriction Most Families Don't Know About

Maine law puts a specific limitation on who can serve as your healthcare agent that's directly relevant to nursing home and assisted living residents.

Under 18-C M.R.S. § 5-803(2), an owner, operator, or employee of a residential long-term healthcare institution where you are receiving care cannot serve as your healthcare agent — unless they are related to you by blood, marriage, or adoption.

This means the nursing home aide your mother has grown close to, the facility administrator who's been helpful, or the social worker coordinating her care cannot legally serve as her healthcare agent. The restriction exists to prevent conflicts of interest between the facility's operational concerns and the resident's medical autonomy.

If your parent signed a directive naming a facility employee before moving in, that designation may still be valid — the restriction applies to employees of the facility where the person is "actively receiving care." But if there's any overlap, update the directive to name a family member or independent friend.

Timing Matters: The Capacity Window

The transition to a nursing home often coincides with cognitive decline — the very thing that makes advance directive planning urgent. The legal requirement is clear: the person signing the directive must have capacity at the moment of signing. Capacity means understanding their medical condition, evaluating treatment options, comprehending consequences, and communicating a decision.

For someone with early or moderate dementia, this creates a narrowing window. The directive must be signed while the person can still demonstrably meet those criteria. Waiting until they're settled into the facility and "comfortable" might mean waiting too long.

If there's any question about capacity, have the primary care physician present during signing. The doctor can document in the medical record that the patient had capacity on that date — strong evidence if the directive is ever challenged.

What to File with the Facility

Once the advance directive is signed, provide the facility with:

• A copy of the complete advance directive (healthcare agent designation and individual instructions)
• A copy of any POLST or DNR order signed by the physician
• Contact information for the healthcare agent and alternate agent

The facility should place these documents at the front of the resident's medical chart. Confirm that the nursing staff on all shifts know the directive exists and know how to reach the healthcare agent.

If the resident already has a directive from before admission, review it. Moving into long-term care often changes the calculus — treatment preferences written while healthy and independent may not reflect what the person wants now that they're in a care facility. The directive can be updated at any time as long as the person has capacity.

Common Scenarios in Facility Care

A fall requiring hospitalization. The facility calls 911. EMS arrives and will perform full resuscitative measures unless they see a POLST or DNR order. The advance directive alone won't direct their actions — make sure a POLST is posted visibly in the resident's room.

Declining to eat. If a resident with advanced dementia stops eating, the facility and family face the feeding tube question. The advance directive's individual instructions should address artificial nutrition explicitly — without guidance, the healthcare agent must decide under pressure.

Transfer to the hospital. When a facility resident is transferred to a hospital for acute care, the advance directive follows them. But the hospital is a different institution with different staff. The healthcare agent should confirm that the hospital has a copy on file and that the attending physician has reviewed it.

The Maine Advance Directive & Living Will Kit includes facility-specific guidance, a distribution checklist for care settings, and treatment-preference prompts that address common nursing home and assisted living scenarios.

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