The legal concept of a “legal guardianship” confers upon others, typically a loved one of the person needing the guardianship, the responsibility to make the right decisions on behalf of someone incapable of doing so on their own – typically a child but also an infirmed adult. These can be touchy and risky subjects, and often residents of nursing homes will need to assign a power of attorney or legal guardianship to a loved one who may suffer from increasing dementia or Alzheimer’s, or old age just simply leaves them unable to make these important decisions.
A Dangerous New Trend
In recent news in the state of New York, there is a disconcerting trend among nursing homes in the state that are taking advantage of legal guardianship powers in order to ensure patients make good on their bill payments. Legal guardianship in New York, as in other jurisdictions, is typically meant for someone who cannot manage their money or is incapacitated and cannot care for themselves or make important health decisions. In one case documented in the New York Times, a New York nursing home filed a guardianship petition in order to take over legal guardianship for a patient. Such power would include the ability to make important decisions, as well as to control that patient’s money.
This is so in spite of the fact that the patient has a living husband, who continues to visit her and look after her well-being. As reported, the husband was stunned to find the petition for guardianship by a nursing home, which would take the power away from him and his wife, and put it in the hands of a total stranger. In this case, the motivation appears to be to avoid billing disputes with the patient and their loved ones, and instead to take total control of the patient’s finances in order to make sure the nursing home gets paid. And this is not just a one-off situation. As the Times reports, “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.”
The report also states that of several hundred guardianship filings in Manhattan alone, nursing homes filed 12% of them. There may be some valid reasons for such filings – for example, if a patient’s family has an internal dispute and is unable to come to a consensus to make the necessary health decisions for the patient, the facility may step in by assuming guardianship to ensure the patient gets what he or she needs. An attorney for the facility in this case indicated that such tactics are also justified for the facility to get the money it is owed.
Nevertheless, others see this as an intimidation tactic to ensure the family pays the bill, even if it is disputed, in the hopes of avoiding an even more expensive, or at least lengthy, legal battle with the facility over the payments. They essentially have to choose the lesser of the two headaches, and the nursing home probably hopes it will be the bill, even if the family disagrees with it for whatever reason, be it inaccuracies or where the facility failed to provide adequate care or services. Another question is whether guardianship, which is meant for the proper care and welfare of the individual, can be legitimately used simply to collect on a bill when the facility can take the normal legal route and file suit against the patient or their family for the money. Facilities apparently wish to take control of the money rather than wait for a payment that may never come or may not be full in the facility’s eyes.
This will be a particularly important situation to follow in New York and wherever else facilities try to take advantage of guardianship statutes in order to collect bills.
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