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An article on the front page of the New York Times today entitled To Collect Debts, Seizing Control Over Patients discussed a case where a nursing home applied for guardianship over one of its patients. The patient had previously granted her husband a Power of Attorney, and he claimed that the nursing home was bringing the action as a strong-arm tactic to get paid. His wife’s copayments had risen dramatically and he was disputing the calculation. This is not the only case of this type; nursing homes do occasionally apply for guardianships for incapacitated patients.

The case was messy, and highlights two important points. First, it is crucial for you to have a Power of Attorney in place. Then if you become incapacitated, you have a trusted agent in place who will look after your interests.

But second, it also highlights the fact that nursing homes want and need to be paid in order to stay in business. Nursing home care is expensive for the nursing home as well as for the patient. If a patient stops paying the nursing home, the nursing home cannot kick the patient out, and they are in a real bind. Applying for guardianship is time-consuming and expensive; no nursing home undertakes such an action lightly.

The guardianship application of the nursing home may or may not have been in the best interest of the patient, and appeared to be undertaken in large part so the nursing home could get paid. The patient was protected, however, by the Power of Attorney she had in place. Both points are important: first, you need to protect yourself with a Power of Attorney; and second, if you need nursing home care, be aware that the nursing home needs to be paid and understandably, will take action to make sure they are.

Elder Law strategies are designed to protect your assets, while enabling you to receive long-term care and also – through private funds or Medicaid -to make the required payments to a nursing home. These are key aspects of the Elder Law practice of Lamson and Cutner.

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