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Nursing Homes seek Guardianship over Residents to Collect Debts

Posted on: January 26th, 2015 by Mark R. Friedman

The New York Times ran an article today on nursing homes filing for guardianship over incapacitated residents in an effort to collect on nursing home bills, even when other family members are available to serve as guardian.

The Times article covered a woman with a dementia in a Manhattan nursing home that filed to have a stranger appointed as her guardian, even though her husband visits her every day and holds power of attorney for her.  The husband’s representative claimed that the guardianship was an effort to intimidate the family into paying back-owed bills.  Guardianship is meant to allow someone to provide for an incapacitated person’s care and best interests, so if guardianships really are being brought to strong-arm people into paying debts, it is a troubling development.

In New Jersey, I hear of nursing homes applying for guardianship where no family member is available to serve, but I haven’t seen a nursing home seek guardianship when a family member is available. (I have seen nursing homes sue family members who co-sign the resident’s admission agreement as “responsible party”).  And in New Jersey, the nursing home would have difficulty being appointed as guardian where a devoted husband is available to serve, because NJ’s guardianship statute gives preference to family members over others.

Indeed, a court evaluator in the Times case recommended that the resident’s husband be appointed as guardian.  Still, the husband claimed the case cost him $10,000.  The legal bill in and of itself in a contentious guardianship case may be enough to intimidate a family into paying back bills.

A guardianship application is a serious matter that involves taking away a person’s autonomy.  The guardian has a fiduciary obligation to the ward and is supposed to put the ward’s best interests first.  It is not a process with which to be trifled unscrupulously.

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