Choosing to put a loved one in a nursing home is a difficult decision. Defenseless nursing home residents face risks of falling victim to neglect and abuse. But lately, a disturbing trend is appearing amongst nursing homes nationwide. The very institution holding itself out as the protector and caregiver of the elderly is, in fact, deceitfully and shamelessly exploiting the elderly population through the use of legal guardianship proceedings. The reason that nursing homes petition the courts for guardianship over their residents is clear: bill collection. And its turning golden years into nightmares.
What is Guardianship?
When a person becomes mentally incapacitated due to age or infirmity, guardianship is a legal means of transferring decision-making powers to someone else, typically a trusted loved one or family member, who can act in the best interests of the incapacitated elderly individual. Nursing Homes, however, have found a new, sinister way to use guardianship proceedings as a sword instead of a shield. These nursing homes are petitioning courts for guardianships over residents who they claim have not paid their nursing home bills. The petitions not only ask the court for decision making powers related to health, but also those related to the elderly individual’s finances. Guardianship petitions are being filed with alarmingly increasing frequency. In a randomized sample of 700 guardianship cases filed in Manhattan over a more than 10-year period, Hunter College found that over 12 percent of those cases were brought by nursing homes.
Seizing Guardianship to Collect Debts
Nursing home debt collection through court-appointed guardianship has a mixed track record in the country’s court system. A handful of judges have sided in favor of the petitioning nursing home. Other judges, however, have stated that the Mental Hygiene Laws governing these petitions was never meant to allow guardianships as a means of financial collection. For their part, nursing homes claim that they have no other choice if they want to stay afloat. In any event, such petitions are costly to nursing home residents and their families. It is a strong-arm method of intimidation, and a hope that a judge will rubber stamp the nursing home’s malevolent tactics.
How an Attorney Can Help
The Nursing Home system has, unfortunately, become one more concerned with bill collection and finances than with the welfare of its residents. It is best to be prepared for the future. Residents of nursing homes, those who are planning to be residents, and their loved ones should seek out an attorney in their area to create a plan in anticipation of the possibility of being faced with one of these petitions. Seniors must be aware that they can have a power of attorney in place; a health care directive; and a will, but all of that planning can be overturned by a guardianship being established by a nursing home that includes control of the senior’s finances.
Medicaid Asset Protection should be a major consideration. Medicaid Asset Protection is the process of protecting assets from having to be completely spent to pay for the devastating expenses of long term care, while helping to ensure that you or your loved one get the best possible long term care and maintain the best possible quality of life. The process is also called Life Care Planning. Life Care Planning can and should be started while you are still able to make legal and financial decisions. If you are over 65, we recommend that you begin your asset protection planning as soon as possible.
Contact the Law Office of Cohen & Jaffe, LLP
If you have any legal questions concerning nursing home abuse, feel free to contact our law firm at the Law Office of Cohen & Jaffe, LLP.
I don't understand how they can get away with this.
ReplyDeleteDo they do this because they know family can't afford to hire an attorney and fight back?
ReplyDeleteIt's also a way to override a PoA. If a family member is PoA and the nursing home bills aren't paid, then that's a chance for a guardianship. It stinks to high heaven.
ReplyDeleteI didn't know this and it scares me to death! Thank you for posting!
ReplyDeleteWhy don't judges just tell nursing homes to hire a collection agency like any other company trying to collect a debt?
ReplyDeleteThis article points out how powerful the nursing home lobby is. If they can change the rationale of guardianship proceedings from "protect" to "collect", and they have, then that's what we're all up against. Money and profit over people and care.
ReplyDeleteThe scariest part of this is that people are losing all of their fundamental rights to freedom, property, or the ability to hire independent council, which leaves elders and their families in the grip of an institution that can then drain the estate. It's akin to a college deciding to remove your parental rights, taking over your kid to get you to pay your bill. It's disgusting.
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