For some families, the golden years are turning nightmarish, thanks to state laws that some nursing homes are using to try to gain guardianship — and financial control — of their older patients. 

Max Kaplan has been residing in a Bronx Nursing Home since 2011. He is of both sound body and mind. He does not need a nursing home. He is not ill, nor does he need any medication. He is one of the unlucky elders who has been adjudicated as an “incapacitated person,” unable to manage his personal affairs, medical situation, or his finances. Max worked hard most of his eighty years. He has no family, earned enough money to buy a small home, and put away a few dollars for retirement. His house was not in good repair, but he managed to get by.

In 2011 he went into the hospital for a minor surgical procedure. He never saw his home again. The hospital told Max that for them to discharge him back to his home, he would have to agree to allow a social worker to visit his home to determine if it was safe for him to return.

Although everything in his home was in working order, the social worker determined that some repairs were needed and that he could not return home. She called Adult Protective Services, who agreed that Max could not return home.

Max was sent to the Bronx nursing home for physical and occupational therapy, which he did not need. The hospital promised that after spending two weeks in the nursing home, he could go home to arrange for repairs, which he agreed to make.

When Max was admitted to the nursing home, he refused therapy and insisted that he be allowed to go home. After two weeks, he was not allowed to return home. He tried to leave the building. The facility administrator called the police who were informed that Max was mentally incapacitated and had nowhere to go. The nursing home filed an Article 81 petition to have a guardian appointed for Max, an “alleged incapacitated person.”

A guardian must be a person or entity, it cannot be a nursing home. Max was assigned a non-profit entity to become his guardian. Some of these entities are considered guardianship mills.

The guardian allowed the facility to apply for Medicaid, took his $50,000 nest egg to pay privately for nursing home services Max did not ask for or need, sold his home and furniture, and took his social security and pension payment to pay for his care. He is allowed $50.00 monthly for personal incidentals.

Except for court appearances, Max is not allowed to leave the building for any reason. No one can sign him out; a right allowed all nursing home residents. His guardian is not responsive.

Guardianship abuse is worse than identity theft from which one can recover. A guardianship is a life sentence.

Guardianship is one of the most ethically fraught aspects of the eldercare system, hinging on the most sensitive questions about personal liberty, medical responsibility, and kinship. And it all starts, for better or worse, with a judge’s decree. A court appoints a guardian when a senior is deemed unable to live independently, usually after a hearing process that reviews an individual’s medical needs or physical, intellectual, mental or psychological disabilities, and determines that guardianship is appropriate. Similar to adoption, the guardian is, in most cases, a relative or friend who petitions for them. But people with fewer resources might end up in the care of a public or private agency, which is tasked with managing issues like medical treatment, financial planning and end-of-life care.

Many attorneys who represent nursing homes, use New York’s guardianship statute, codified as Article 81 of the Mental Hygiene Law (MHL), for financial reasons.

Using guardianship to collect a debt owed by an incapacitated person is antithetical to the language and spirit of Article 81. From the legislative findings and the purpose as set forth in MHL § 81.01, through the final provision on post-death proceedings, the statute is there to protect the Alleged Incapacitated Person (AIP). What is not beyond dispute, however, is how and when nursing homes can permissibly resort to guardianship to protect their incapacitated residents.

Last month, the United States Senate Committee on Aging called for a major overhaul in the guardianship system, warning that “unscrupulous guardians” have used their position to get control of vulnerable people and then “liquidate assets and savings for their own personal benefit.” It can take many years, if ever for this system to change.

In New York, anyone can petition to have someone declared incapacitated. A judge may then appoint a family member or a third party, usually a lawyer, to be guardian over the person’s physical needs, financial affairs, or both. Critics of guardianship say these strangers have open license to raid their wards’ estates.

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Today, nursing homes are filing for guardianships for several reasons including:

1. Keeping their census high- As more elders choose to stay at home or go to assisted living facilities; nursing homes have to keep their beds filled. Since nursing homes can’t apply for Medicaid payments, the facility needs to get paid when Medicare dollars run out (usually 100 days). If a resident has a family who is willing to go through the onerous application process, that is fine. What happens if the family is uncooperative, or there is no family? A guardian has the power to file a Medicaid Application.

2. Keeping residents in their facilities against their will– As you see from my case study on Mr. Kaplan, a facility can force someone to stay if that person is declared incapacitated and unable to make their own decisions. Once a guardian is appointed, he/she takes over decision making in medical matters. If the facility makes a case with the guardian that a resident needs to be in a nursing home, the guardian has the power to keep that resident in a nursing home.

3. Bar complaining relatives from visiting their loved ones- This especially egregious guardianship abuse is very commonplace today in many nursing homes across the country. While the nursing home visitation regulations are unambiguous on who may visit a resident, substandard nursing homes don’t like those pesky relatives who are always complaining and advocating for their loved ones, seeking better care.

On the pretense that these family members are disruptive and dangerous to the health and welfare of the resident and the facility, they bar them from visiting. For the most part, these family members have a power of attorney and health care proxy so they can make decisions for their loved one. A court-appointed guardian can usurp these legal abilities and continue to bar the family from visiting.

4. Evicting residents – Nursing home evictions are on the rise. Last year alone, 12,000 residents were evicted from nursing homes. The number is significantly higher, considering that this crime goes mostly unreported. A guardian can force a resident to move out of a facility, even to a facility hundreds of miles from their family.

Guardians have absolute power.

Guardianship is not an outcome that many people are aware of, according to a report from The New York Times and researchers at Hunter College. In a study of 700 guardianship cases filed in Manhattan for over ten years, the study found that more than 12 percent were for nursing homes seeking guardianship of patients. In some cases, the motive was apparently to gain control of the patient’s assets to pay bills.

One such case is that of Lillian Palermo, an insurance executive who became incapacitated in her 80s and entered a nursing home. According to The Times, after her husband, Dino disputed nursing home bills that had doubled her copays and complained about employees dropping his wife on the floor, the Mary Manning Walsh Nursing Home filed a guardianship petition to give it full legal power over her, as well as control of her money.

A previous employee at the Mary Manning Walsh Nursing Home, Ginalisa Monterroso, said the tactic is a “strategic move to intimidate,” and that nursing homes pursue guardianship “just to bring in money.” Monterroso is now representing Dino Palermo in his billing dispute, The Times noted. A lawyer for the nursing home told the publication that guardianship “is a legitimate means to get the nursing home paid.”

In the Palermos’ case, the issue was resolved after the billing was ironed out, with the nursing home dropping its petition for guardianship after cashing Dino Palermo’s check. These stressful situations are the result of a guardianship statute enacted in 1993, which allows a court to appoint a guardian for people in certain circumstances, such as if the person is incapacitated and unable to manage his or her financial affairs. The statute, called Article 81, allows the facility where such a person is residing to seek guardianship. Of course, many people or facilities seeking guardianship through Article 81 are doing so with the person’s best interest in mind.

“While Article 81 guardianships are well-intentioned, the guardianship system is plagued by long delays and has little oversight, leaving a vulnerable population of older adults at further risk,” according to the Brookdale Center for Healthy Aging at Hunter College.” In New York State, there is no consistent or reliable research data on guardianship proceedings or on the number of cases.”

The fact is that guardianship regulations vary from state to state, with a 2007 study from the University of Kentucky finding 44 states had specific statutory provisions on public guardianship, while another seven states had no codes.

Hunter College’s analysis of guardianship petitions in Manhattan found that most of the requests came from Adult Protective Services, at 40 percent. Friends and family members filed about 25 percent of guardianship petitions, while hospitals and nursing homes together represented almost 29 percent. Once someone is under guardianship, it is very difficult to get out, because any resistance can be treated as evidence that they are at risk to themselves, so they need protection. For emotionally fragile people, the stress of guardianship — of paying to have your rights transferred to someone else — can make them even more fragile. And if a relative opposes a guardian’s actions, everyone involved — the guardian, lawyers for both the guardian and the ward, the court evaluator and possibly others — can bill the ward for their time.

“It’s total overkill, it’s completely unconstitutional, and it’s done every day,” Ms. Glen said. “And it’s done in the name of protection. And the real question is, does it actually protect people? There’s no evidence that it does. When you give one person total power over another person’s life, including the power to isolate that person, you’re setting them up for abuse and neglect and exploitation.”

Guardians and judges complain that the system is vastly underfunded, and that most wards have little or no assets to pay for time-consuming work. Several non-profit organizations provide guardianship for poor individuals.

Jean Callahan, who oversees low-income guardianship cases as an attorney in charge at the Legal Aid Society’s Brooklyn neighborhood office, likened guardianship to nursing homes. “It’s not what anyone would choose, but I’m glad they’re there,” she said. “It’s a blunt instrument, but it does solve problems sometimes.”

Had Max Kaplan called My Elder before a guardian was put into place by the court, there is a chance he would be free today. Although My Elder worked tirelessly to help Mr. Kaplan, the court had already made up its mind. My Elder helps many clients avoid guardianship or fight them in the early stages; we are not attorneys and have no standing in court. Once it’s in court, it’s potluck. Call My Elder for planning, so that we can help you avoid this situation.

For a thorough explanation of guardianship check out John Oliver at https://www.youtube.com/watch?v=nG2pEffLEJo

My Elder provides elder advocacy services to families. Talk to us about long-term planning, finding the right home for your loved ones, preventing crisis and abuse, preventing nursing home eviction or nursing home involuntary discharge, and ensuring they receive the best care possible.

Photo Credits Andrew Bui