Summer 2011 Newsletter
In the Spring Newsletter, we discussed long term care with a focus on nursing home versus in-home care for the elderly and the admissions process where nursing home care is chosen. We continue with our look at the admissions process and nursing home collection cases.
Nursing Home Collection Cases
In the Spring Newsletter, we talked about financial responsibility for the elderly individual entering the nursing home and we looked at admissions agreements. Some admission agreements include provisions that hold a family member responsible for transfers of resources made by power of attorney or as a joint account holder of a Medicaid applicant's resources where that transfer triggers a penalty.
Those types of transfers create a black-letter legal responsibility, so be careful if you, as the adult child of an elderly person, transfer resources held jointly with your parent, or as your parent's agent, and then you sign an agreement with that specific language. Moreover, nursing homes contemplate instituting lawsuits even where no such language exists in an admissions agreement. Whether you have signed off for that or not, be aware that transfers by agents or joint account holders will be scrutinized closely as the basis of a claim by the nursing home where Medicaid benefits have been denied.
We must recognize that the nursing home is in the business of making money. In the current political climate, that notion may be characterized as evil, but it is not, in actuality. We acknowledge the business reality, and are grateful for the job nursing homes perform, and the market they serve. This does not mean that the elderly and her family should not advocate for their respective interests.
That is where counsel can be helpful and make a real difference in how these cases resolve. Anyone with an elderly family member facing these challenges should seek out counsel. The investment in a consultation with an elder lawyer is well-worth the expense. Depending on where the elder lawyer practices, the consultation will cost anywhere from $375 to $1,000; regardless, one should do it. In addition, the internet has loads of information. To be informed is an absolute must because the ramifications of a mistake are huge and can be devastating to a middle class family.
The Final Bill
Once the elderly person is discharged, what happens to the final bill? There are almost as many possible results as there are families. More often than not, the final bill is paid by Medicaid, or a legally responsible person, or the administrator or executor of the elderly person's estate, or even a family member who is not responsible, if circumstances warrant the last option.
But, sometimes, the final bill goes unpaid. In my practice, my clients and their families have been able to settle with the nursing home every time. I know that it does not always work that way, and, at times, nursing homes institute lawsuits against families.
In the current terrible economic climate, with the real estate market in the saddest state of my lifetime, estate representatives are having difficulty selling homesteads. In fact, I have quite a few cases where the elderly person spends down all of her resources, but cannot sell her home or vacation property for any price. The southern real estate market has been hit particularly hard by the current recession.
Technically, a vacation home is a non-exempted property, and that value triggers a penalty. Such a penalty would be applied back from the date of the submission of the Medicaid application. That period of ineligibility is frustrating to a family, and even more frustrating to a nursing home that has provided services for which it is not being paid.
Fortunately, in a case I recently handled, the nursing home was willing to accept the broker's listing as evidence of good faith in an attempt to sell on the part of the elderly individual, and Medicaid has covered the ongoing costs, but for the vacation property's value. Eventually, when the property is sold, that penalty amount will be paid from the proceeds of the sale. Indeed, the family was fortunate that the nursing home was so nice about the dilemma.
With federal, state and local governments tightening their belts, we are unsure as to what will happen to these families in the future. We will keep our readers posted as to any future developments. Have a good and healthy summer....
The above list is for general information purposes only. It is not intended to constitute individual legal advice or a specific recommendation to any particular client.
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