It is less than common knowledge that nursing homes can file for guardianship of their residents to collect debts. However, this practice has increased ten-fold in recent years. In fact, studies show that up to two thirds of all guardianship proceedings nationwide are brought forth by a government entity or institution. Elderly and disabled nursing home residents with unpaid debts are at the core of this seemingly untoward practice. A report by the Brookdale Center of Healthy Aging and Longevity has shown between 2000 and 2012, over twelve percent of Manhattan’s guardianship cases were initiated by nursing homes. A study of the entire state resulted in a similar outcome.
Why Would Nursing Homes Want Guardianship of Residents?
Guardianship transfers an incapacitated individual’s right to make decisions regarding themselves to another party. Once the appointment is complete, the guardian (a person or entity) will make all financial and personal decisions for the individual. Guardianship effectively trumps a healthcare proxy or power of attorney. In situations where unpaid debts are accumulating against the nursing home, the facility may petition for guardianship to avoid family feuds, prevent embezzlement by family members, or to obtain Medicaid coverage. However, many people argue that the real reason for this practice is to force the resident’s family members to pay unpaid debts and settle bill disputes. In these situations, the guardian (nursing home) is usually paid with the incapacitated resident’s money. In fact, a nursing home with guardianship can directly take unpaid debts out of the resident’s bank account.
Although the primary reason for nursing home guardianship is typically financial, the granting of guardianship also gives the facility the last say in the resident’s care. In doing so, the nursing home is able to continue collecting payments by keeping the incapacitated person in their facility. It goes without saying that this type of arrangement creates a scenario in which nursing homes could take advantage of residents.
Can Guardianship Be Avoided?
A guardian has access to an incapacitated individual’s bank account and other readily accessible funds; however, guardianship does not supersede the trustee of a trust. By placing all of your loved one’s assets in a trust before they go into a nursing home, you can protect their assets from guardianship.
Andrew M. Lamkin – Elder Care Attorney
When an individual no longer has the capacity to make financial and healthcare decisions on his or her own, a guardianship proceeding may be required. If you need to help a loved one during this difficult time, you may consider filing a petition for guardianship. This is a complex legal process that requires the help of a skilled elder care attorney. As discussed above, guardianship can also be petitioned for by an institution or government entity. If you are looking for ways to protect your loved one’s assets from this type of guardianship arrangement, an elder care attorney can help you in this situation as well. At the Law Office of Andrew M. Lamkin, we have been representing older New Yorkers and their loved ones for many years. We understand the complexities and emotional challenges surrounding elder care law and estate planning. It is our goal to make this process as painless as possible, and to protect the assets and wishes of you and your loved ones. Contact the Law Office of Andrew M. Lamkin for a free consultation.