Nursing homes are regularly using guardianship petitions as a means of bill collection. Other parties may also abuse the guardianship process to serve their own needs. A recent study of guardianship cases filed over a ten-year period indicated that 12 percent of such cases were brought by nursing homes. 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. 1
A 2007 study funded by a grant from the Retirement Research Foundation states: “As of 2007, a total of 44 states have specific statutory provisions on public guardianship, whereas seven states include no such reference in their code.”
Seniors can have in place a power of attorney, a health care directive and a will, but all of that planning can be overturned by a guardianship established by a nursing home or other parties. Seniors should be aware of guardianship laws in their state, discuss with an attorney their plans for long-term care, and manage the transition from private pay to Medicaid.2
Guardianship can be a necessary and useful legal means of protecting the rights and assets of a loved one who has lost the ability to make important decisions. Unfortunately, guardianship laws are sometimes abused by persons wanting to protect and enrich their own interests rather than the person in a vulnerable position. This abuse can come from nursing homes, unscrupulous family members, friends, business partners, caregivers, and even persons connected with the court system. In virtually every case, the only way to fight such abuse is to have an experienced and effective attorney on your side who understands the laws relating to elder care and the legal system. Kilgore & Kilgore has attorneys with experience in protecting the elderly and the heirs when the inheritances were compromised by the actions of others.
Guardianship gives a person the legal right and duty to manage the personal and/or financial affairs of someone who is unable to do so for him or herself. In Texas, guardians are appointed by the court for persons who are proven to be “incapacitated.” Because any guardian appointed by a judge will have full control over all or some of the affairs of the incapacitated person (called a “ward”), the appointment process is not easy by design. It almost always requires an experienced attorney to act on behalf of the family member or other person who is requesting that a guardian be appointed.
In the vast majority of cases, guardianships do what they are designed to do: protect vulnerable persons from abuse, neglect and exploitation. Unfortunately, however, in some cases, persons with their own agendas try to use the guardianship laws for their own benefit. A recent report in the New York Times put the spotlight on nursing homes which abuse the guardianship process as a method of bill collecting. The nursing home may petition the court for a guardian to be appointed on behalf of someone in their care who has not paid what the nursing home claims to be the outstanding balance. By doing so, the nursing home initiates an expensive and stressful process that puts pressure on the person in its care to either pay the demanded amount or risk losing control of his or her personal finances.
Persons in Texas have been shown to abuse the guardianship process as well. In 2012, the San Antonio Current published its own exposé on guardianship abuse. The focus of this report was on a process in Texas called “court-initiated guardianships.” Under the laws governing this process, if a judge becomes aware of any person on whose behalf a guardian may need to be appointed, the judge is obligated to commence an investigation to determine whether doing so would be appropriate. If the investigation shows to the court’s satisfaction that a guardian should be named, then the judge may do so regardless of whether any family member has expressed a desire for a guardian to be appointed—and sometimes even over the objections of the person becoming the ward.
In theory, when choosing a guardian, the judge is required to follow a priority list provided by Texas law, but there are ways around this. For example, if the ward is an adult, then the law directs the judge to first look to whether the ward has already designated a guardian in the event of incapacity, and if not the judge looks to the spouse, the next of kin, and so on. However, there are many legal methods for a judge to disqualify a person from becoming a guardian. These include a determination that a person has a claim adverse to the ward’s assets, has engaged in notoriously bad conduct, lacks the ability or education to handle the ward’s affairs, or is otherwise found unsuitable by the court. So in reality, the judge can often overlook the stated wishes of the ward and the family in order to appoint an independent guardian.
Such an independent guardian sometimes acts in a manner detrimental to the ward and the family. Guardian fees, which can be extremely high, are paid directly out of the ward’s assets. Some independent guardians have even limited or excluded contact by family members with the ward. And the ward and his or her family have no control over the independent guardian’s use of the ward’s assets to pay disputed bills such as in the nursing home cases.
As you can see, whether you are in the unfortunate situation of needing to petition for guardianship of a loved one to protect the loved one’s interests, or need to contest a guardianship initiated by another person or the court, you will absolutely need an experienced attorney on your side. If you are in either of these situations, or have other issues relating to elder care abuse, contact Kilgore & Kilgore today. Our commercial litigation attorneys are ready to evaluate your situation. Call us today at (214) 969-9099 or email dem@kilgorelaw.com to set up a free review of the facts of your case with a Dallas commercial litigation lawyer.
1 New York Times, January 25, 1025, To Collect Debts, Nursing Homes Are Seizing Control Over Patients,http://www.nytimes.com/2015/01/26/nyregion/to-collect-debts-nursing-home-seizing-control-over-patients.html?_r=0
2 Senior Living Blog, January 27, 2015, by Don Taylor, Nursing Homes: Guardians of the Elderly,
http://www.bankrate.com/financing/senior-living/nursing-homes-guardians-of-elderly/