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Nursing Home Debt Collection: A Form of Elder Abuse?

Garcia & Artigliere

Nursing homes allow families to provide care for their loved ones when they do not have the skills, resources or ability to provide that attention themselves. But what happens when the nursing home isn’t paid due to bill disputes or other issues? Many of them seek to obtain legal guardianship of the resident and in doing so gain complete control of the resident’s finances.

Guardianship is the legal process by which one person assumes control of another person’s decisions, finances, and property when that person is unable to do so for themselves. According to the National Guardianship Association (NGA), “Because establishing a guardianship may remove considerable rights from an individual, it should only be considered after alternatives to guardianship have proven ineffective or are unavailable.” The NGA was formed in 1988 to “advance the nationally recognized standard of excellence in guardianship.” Nothing in the standards set forth indicates that bill collection is an appropriate use of this harsh legal tool, and yet that is exactly what nursing homes use it for.

Many people believe that the act of a nursing home seeking guardianship of a resident solely for the purpose of debt collection is a form of elder abuse. The actions are being taken not because the resident, or the person that resident has given the power of attorney to, is unable or unwilling to manage their own affairs, but because payment is in arrears. In fact, a recent New York Times articlefound that this practice has become so prevalent that it can be considered routine.

Nursing homes have used this tactic as a form of pressure on the families to settle past-due bills, even in cases when the amount owed is under dispute or there are problems related to the loved one’s care. In one situation, a resident had access to considerable funds and valuable property, and the sole purpose of the guardianship appeared to be the desire by the facility to gain control over those funds. Although the judge, in this case, did grant the guardianship, he also stated that payment of bills was not the purpose of the law.

Regardless of the circumstances leading to the establishment of the guardianship, the nursing home obtains complete control over the resident. This action often nullifies preexisting powers of attorney and living wills. The nursing home is under no obligation or duty to meet the resident’s expressed and legally established preferences with regard to the handling of finances, property or medical issues.

Nursing homes exist to care for those who cannot care for themselves. Guardianship is a legal process to protect those who cannot protect themselves. Nursing homes using guardianship as a form of bill collection is a misuse of both systems which many consider a form of elder abuse.

If you or someone you know is a victim of elder abuse, contact an elder abuse attorney to help you protect yourself and your rights.


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