Caregivers deserve support, not debt

Finally, I can see the light.

I’m slowly but steadily climbing my way out of a mountain of debt that I accrued as a caregiver.

The financial burden of being a caregiver can be devastating, but it is often overlooked. We don’t like to talk about caregiving in dollars and cents, because acts of compassion are priceless, right?

Well, not quite. Doing the right thing morally can destroy you financially.

Caregivers shouldn’t be forced to choose between family duty and financial stability. A new University of Pittsburgh study, “Addressing the Needs of Caregivers at Risk: A New Policy Strategy,” outlines the grim realities caregivers currently face, while offering suggestions for policy improvements. According to the study, family caregivers provide over 90 percent of the long-term care for 12 million Americans, yet lack access to meaningful financial resources and helpful programs like flexible working schedules.

In five years as my parents’ caregiver, I racked up over $20,000 in credit card debt. I burned through my modest savings and drained a Roth IRA before tapping into my parents’ savings. I was a few months away from tapping into my 401K before my financial situation began to improve.

In many respects, I was fortunate.

Initially, the additional expenses I incurred as a long-distance caregiver were manageable. My parents retired to New Mexico and I live in Georgia. After my father was placed in a memory care facility, I paid for what the monthly fee didn’t include, such as adult diapers and nutritional drinks. Even with my father’s Teamsters pension and Social Security, there was not enough to cover the over $4,000 monthly facility payment, so after exhausting dad’s limited savings, my mother was forced to dip into money she had won from a lottery jackpot. After taxes, the amount totaled about $60,000, and over half was spent on my father’s medical care.  (Click to continue)

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Caregivers deserve support, not debt

Nursing Homes are Taking Control Over Patients

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.

To Collect Debts, Nursing Homes Are Seizing Control Over Patients

Dino and Lillian Palermo

Lillian Palermo tried to prepare for the worst possibilities of aging. An insurance executive with a Ph.D. in psychology and a love of ballroom dancing, she arranged for her power of attorney and health care proxy to go to her husband, Dino, eight years her junior, if she became incapacitated. And in her 80s, she did.

Mr. Palermo, who was the lead singer in a Midtown nightclub in the 1960s when her elegant tango first caught his eye, now regularly rolls his wife’s wheelchair to the piano at the Catholic nursing home in Manhattan where she ended up in 2010 as dementia, falls and surgical complications took their toll. He sings her favorite songs, feeds her home-cooked Italian food, and pays a private aide to be there when he cannot.

But one day last summer, after he disputed nursing home bills that had suddenly doubled Mrs. Palermo’s copays, and complained about inexperienced employees who dropped his wife on the floor, Mr. Palermo was shocked to find a six-page legal document waiting on her bed.

The Palermos at the Mary Manning Walsh Nursing Home

It was a guardianship petition filed by the nursing home, Mary Manning Walsh, asking the court to give a stranger full legal power over Mrs. Palermo, now 90, and complete control of her money.

Few people are aware that a nursing home can take such a step. Guardianship cases are difficult to gain access to and poorly tracked by New York State courts; cases are often closed from public view for confidentiality. But the Palermo case is no aberration. Interviews with veterans of the system and a review of guardianship court data conducted by researchers at Hunter College at the request of The New York Times show the practice has become routine, underscoring the growing power nursing homes wield over residents and families amid changes in the financing of long-term care.

In a random, anonymized sample of 700 guardianship cases filed in Manhattan over a decade, Hunter College researchers found more than 12 percent were brought by nursing homes. Some of these may have been prompted by family feuds, suspected embezzlement or just the absence of relatives to help secure Medicaid coverage. But lawyers and others versed in the guardianship process agree that nursing homes primarily use such petitions as a means of bill collection — a purpose never intended by the Legislature when it enacted the guardianship statute in 1993.

At least one judge has ruled that the tactic by nursing homes is an abuse of the law, but the petitions, even if they are ultimately unsuccessful, force families into costly legal ordeals.

“It’s a strategic move to intimidate,” said Ginalisa Monterroso, who handled patient Medicaid accounts at the Mary Manning Walsh Nursing Home until 2012, and is now chief executive of Medicaid Advisory Group, an elder care counseling business that was representing Mr. Palermo in his billing dispute. “Nursing homes do it just to bring money.”

“It’s so cruel,” she added. “Mr. Palermo loves his wife, he’s there every single day, and they just threw him to the courts.”

Brett D. Nussbaum, a lawyer who represents Mary Manning Walsh and many other nursing homes, said Mr. Palermo’s devotion to his wife was irrelevant to the decision to seek a court-appointed guardian in July, when the billing dispute over his wife’s care reached a stalemate, with an outstanding balance approaching $68,000.

“The Palermo case is no different than any other nursing home bill that they had difficulty collecting,” Mr. Nussbaum said, estimating that he had brought 5,000 guardianship cases himself in 21 years of practice. “When you have families that do not cooperate and an incapacitated person, guardianship is a legitimate means to get the nursing home paid.”

Guardianship transfers a person’s legal rights to make some or all decisions to someone appointed by the court — usually a lawyer paid with the ward’s money. It is aimed at protecting people unable to manage their affairs because of incapacity, and who lack effective help without court action. Legally, it can supplant a power of attorney and a health care proxy.

Although it is a drastic measure, nursing home lawyers argue that using guardianship to secure payment for care is better than suing an incapacitated resident who cannot respond.

Mr. Palermo, 82, was devastated by the petition, brought in the name of Sister Sean William, the Carmelite nun who is the executive director of Mary Manning Walsh. “It’s like a hell,” he said last fall, speaking in the cadences of the southern Italian village where he grew up in poverty in a family of eight. “Never in my life I was sued for anything. I just want to take care of my wife.”

A court evaluator eventually reported that Mr. Palermo was the appropriate guardian, and questioned why the petition had been filed. But the matter still dragged on, and Mr. Palermo, who had promised to pay any arrears once Medicaid completed a recalculation of the bill, grew distraught as his expenses fighting the case reached $10,000.

In the end, Medicaid’s recalculation put his wife’s monthly copay at $4,558.54, almost $600 less than the nursing home had claimed, but still far more than the $2,642 Mr. Palermo had been paying under an earlier Medicaid calculation. As soon as the nursing home cashed his check for the outstanding balance, it withdrew the guardianship petition.

“They chose to use a strong-arm method, asking for somebody to be appointed to take over her funds, hoping for a rubber stamp to do their wishes,” said Elliott Polland, Mr. Palermo’s lawyer.

Many judges go along with such petitions, according to lawyers and others involved in the process. One judge who has not is Alexander W. Hunter Jr., a longtime State Supreme Court justice in the Bronx and Manhattan. In guardianship cases in 2006 and 2007, Justice Hunter ordered the nursing homes to bear the legal costs, ruling they had brought the petitions solely for the purpose of being paid and stating that this was not the Legislature’s intent when it enacted the statute, known as Article 81 of the Mental Hygiene Law.  (Continue Reading)

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To Collect Debts, Nursing Homes Are Seizing Control Over Patients