A little-known but worrying aspect of care for the elderly in New York is that nursing homes can, and do, file for guardianship of incapacitated residents, gaining control of their finances.
If a nursing home believes that someone in their charge is unable to manage their legal affairs, under New York’s 1993 guardian statute, Article 81, they may apply for legal guardianship. Guardianship, which can supersede powers of attorney and health care proxies, transfers the residents’ legal rights – including control of their finances – to the nursing home.
Originally enacted to protect vulnerable people who, due to incapacity, were unable to manage their own affairs without a court battle, the Statute has enabled some nursing homes to abuse their position by taking over financial control of their charges’ money in order to pay their bills. Unfortunately, this practice is on the rise.
For obvious reasons of privacy and confidentiality, and in some instances, sealed records, information regarding actual guardianship cases in New York is not easy to access – most are closed from public view; however, the New York Times asked the Brookdale Center for Healthy Aging at Hunter College to conduct a review of guardianship cases in New York, and far from being anomalous, what their research showed was that increasingly, nursing homes petitioning for guardianship of the elderly is rapidly becoming the norm.
Looking into a random sample of 700 out of the 3,302 petitions for guardianship which were filed in Manhattan during the past 10 years, Hunter discovered that 12.4% were brought by nursing homes. Naturally, not all nursing homes apply for guardianship for financial reasons, indeed, in many cases, such as those involving family feuds, or a lack of competent relatives, the well-being of the resident is truly paramount. However, according to lawyers involved in some cases, the instances of nursing homes using guardianship primarily in order to secure payment for residents’ bills are growing, even when there are family members who are more than capable of making decisions for their elderly residents.
One New York judge has ruled that by petitioning for guardianship, nursing homes are openly abusing Article 81. In addition, he remarked, even if the petitions are unsuccessful, families will have been subjected to costly legal battles.
Chief executive of Medicaid Advisory Group, Ginalisa Monterroso, a former employee of the Mary Manning Walsh Nursing Home in New York, where she handled patients’ Medicaid accounts, commented;
“It’s a strategic move to intimidate. Nursing homes do it just to bring money.”
Referring to a recent incident last year, when the husband of one the residents at Mary Manning Walsh queried his wife’s bills, which had suddenly doubled, who then suddenly discovered that the home had filed for guardianship, Ms Monterroso said;
“It’s so cruel, Mr. Palermo loves his wife, he’s there every single day, and they just threw him to the courts.”
Despite a court evaluator querying the guardianship petition brought by the nursing home, and reporting that Mr Palermo’s guardianship was entirely appropriate, Mary Manning Walsh still refused to drop the case, costing Mr Palermo $10,000 in legal fees. However, as soon as Mrs Palermo’s copay bill had been recalculated by Medicaid (and was assessed at being $600 per month less than the home had claimed), and had been paid by Mr Palermo, Mary Manning Walsh withdrew its petition, giving weight to Ms Monterroso’s claim that the guardianship petitions are used for intimidation.
According to the Administration on Aging, by 2030, almost one fifth of the entire US population will be over the age of 65. If the current trend of nursing homes applying for guardianship continues, even those who have made proper provision for their old age will have no guarantee that their wishes will be carried out, and families cannot have any peace of mind that their senior relatives’ needs are of prime concern to those to whom they have charged their care.
If you or someone you know wishes to file a petition for guardianship of an elderly relative, New York guardianship lawyer, Richard Cary Spivack, will be happy to assist you through the process. Call 718-544-1000 today for a free consultation.