Guardianship Abuse as a Collection Method

They are having a problem in the state of New York.

Nursing homes, hospitals, and care providers are applying for Guardianship over elders who dispute their bills. A January 25, 2015 article in the New York Times tells the heartbreaking story of a husband who disputed the nursing home’s bill for his wife’s care, who suffers from Alzheimer’s. The nursing home filed a guardianship application over his wife. After months of litigation and $10,000 in expenses, the court finally appointed the husband as guardian. Turns out the husband was right about the billing dispute – the nursing home had been billing $600/mo more than was allowed.

But a study of New York guardianship cases found that 12% were brought by nursing homes as a collection method.

Could a nursing home take the same aggressive action against an elder in Texas? Yes, unless the elder mounts a strong defense.

The starting point is that anyone, including a nursing home, can file a guardianship action against an elder.

That leads to the next step. A person with an interest that is adverse to the elder is not supposed to have “standing” to file a guardianship action. But the lack of standing has to be pled and proved in a defensive motion. That assumes that someone, somewhere, cares enough to pull together the facts, plead them, and present them in court.

A nursing home that is using the guardianship action as a collection method would then, ideally, be tossed from the case and its application would be stricken. However, a court in Texas can take up a guardianship on its own volition – so throwing out the nursing home does not necessarily mean the guardianship case will be dismissed.

If the elder is truly incapacitated, and the Court decides that the elder’s needs are not being met by, say, a spouse with a power of attorney, then the Court will appoint a guardian. A guardian who will, undoubtedly, make sure that any outstanding bills are addressed and paid. In the billing dispute between the nursing home and the elder – who won that round? This is the ultimate Guardianship abuse.

Anecdotally, the problem they are having in New York is also being felt in Michigan, Illinois, Florida, New Jersey…. and Texas.

Hammerle Finley Law Firm. Give us a call. We can help.

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The information contained in this article is general information only and does not constitute legal advice.

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