It is known as the "guardianship statute" in New York State, and it was enacted in 1993 for the purpose of protecting those who are no longer able to manage their financial affairs due to incapacity. It was meant to be particularly helpful for elderly individuals without friends or family members in their lives to effectively manage their estates, establishing that a court-appointed person, typically a lawyer, be assigned to act as guardian in lieu of these deficiencies.
But this guardianship clause has been hijacked by money-hungry nursing homes like Mary Manning Walsh (MMW) in Manhattan, which is using it to extract money from patients who can't or won't pay disputed medical bills. In the case of 90-year-old Lillian Palermo, whose co-pays not only doubled recently out of the blue but who also hasn't been cared for adequately by MMW, according to her husband, the care facility filed a six-page petition for full control over her money due to unpaid bills.
For many nursing homes today, it's all about the moneyThis sinister tactic, which goes largely unreported in the media, can bankrupt a patient if successful. Though not all judges honor such petitions -- the guardianship clause was never intended to be used as a method of bill collection by nursing homes -- some do, and the consequences for patients and their families can be devastating.
"It's a strategic move to intimidate," stated Ginalisa Monterroso, chief executive of Medicaid Advisory Group, an elder care counseling business that had represented Dino Palermo, Lillian's husband, in his billing dispute case, to the NYT. "Nursing homes do it just to bring [in] money. It's so cruel. Mr. Palermo loves his wife, he's there every single day, and they just threw him to the courts."
According to a lawyer representing MMW, who claims he's brought 5,000 guardianship cases himself before the courts during his 21 years of practice, taking advantage of the guardianship clause in this manner is completely legitimate. But Judge Alexander W. Hunter Jr., a longtime State Supreme Court justice in the Bronx and Manhattan, says it's completely abhorrent.
"It would be an understatement to declare that this court is outraged by the behavior exhibited by the interested parties -- parties who were supposed to protect the person, but who have all unabashedly demonstrated through their actions in connection with the person that they are only interested in getting paid," wrote Hunter Jr. in one of the few decisions where he granted guardianship to another nursing care facility, Hebrew Home for the Aged at Riverdale, in order to collect payment.
Adult protective services biggest exploiter of guardianship clauseNursing homes aren't the only entities taking advantage of the guardianship clause, known specifically as Article 81 of the Mental Hygiene Law. According to preliminary data collected by the Brookdale Center on Healthy Aging at Hunter College, most guardianship cases are filed by Adult Protective Services, with friends and family of the patients and hospitals coming in second and third.
"It has become a system that's very focused on finances," stated Jean Callahan, director of the school, to the NYT.
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Nursing homes legally kidnapping elderly patients to collect on medical bills