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Current Events in Elder Law

By: Anthony J. Lamberti, Esq., Chairman, Elder Law Committee


               I’ve written previously about the legal basis for a nursing home to seek payment for services from residents of a skilled nursing facility or other responsible parties.

               There are countless cases involving nursing homes petitioning for an Article 81 Guardian that would have authority to marshal the AIP’s assets, pay his or her liabilities (including the nursing home invoice) and apply for Medicaid after the funds are depleted. There are many competing issues that need to be addressed in theses cases, the least of which (is at least one court’s view), is the paymjent of a nursing home bill.

               The nursing home admission office must compile significant data and documentation to file an application Medicaid.

               Some of the things needed for an applicant and their spouse are as follows:

  1. Identify
  2. Citizenship/Social Security Number
  3. Residence
  4. Income
  5. Resources

The current resource allowance for 2015 is $14,850.00. the Community Spouse Resource Allowance (CSRA) for 2015 is between $74,820.00 and $119,220.00—depending on how the assets are held by the spouses.

How does a nursing home get this material if the facility resident is incapacitated or the family or attorney-in-fact is uncooperative in providing the aforementioned documentation to the facility to prepare and submit the Medicaid application?

               In the Matter of G.S., 17 Misc. 3d 303 (Sup. Court, 2007) the Court opened that “The purpose for which this Guardianship proceeding was brought, to wit, for the nursing  home to e paid for its care of the person, was not the Legislature’s intended purpose when Article 81 of the Mental Hygiene Law was enacted in 1993.” The Court then determined that where available resources exist, as defined in Mental Hygiene Law (MHL) §81.03(e), the appointment of a Guardian may not be necessary MHL §81.02(a)(2).

It was determined that the attorney-in-fact had acted appropriately and that the Petitioner Nursing Home failed to established that the agent engaged in conduct sufficient to jutify revoking the Power of Attorney.

In the Matter of Willner, NYLJ 1202678289306 (Sup. Court, decided November 20, 2014) is an example of egregious on the part of nursing home representatives in securing a $50,000.00 check from their resident after the facility’s own psychiatrists found she lacked the capacity to understand financial matters and then commencing an action for payment of the unpaid balance of their bill.

               The court refers to Matter of G.S. supra, to reiterate that the Legislature did not intend for Guardianship proceedings to be filed so nursing homes could collect on their outstanding bills.

               It is my position that the Legislature did intend for health care facilities to petition for the appointment of a Guardian under Article 81.

               There is a specific reference in MHL §81.06 wherein a chief executive officer, or the designee of the chief executive officer, of a facility in which the person alleged to be incapacitated is a patient or resident is clearly enumerated as a permissible petitioner in these proceedings.

               Counsel for nursing homes need to develop factual allegations in their petitions which show that the outstanding bill is not the sole motivation for filing the proceeding. Clearly documenting an attorney-in-fact’s non-responsiveness to demands for information and documents, presentment of unpaid bills, non-participation of health care proxy agents or family members with care plan arrangements and documenting situations where no visitors see the AIP are ways to establish the need for a Guardian for personal needs and property management.

               Unfortunately, the increased time and cost to properly develop a Guardianship case is leading nursing homes to return residents to hospitals (for even the slightest affliction) so as to avoid the difficulties in seeking Guardianship for residents.

Able act passed in congress – January 2015           

               The Able Act which permits families to create accounts for their disabled relatives up to $100,000 – similar to 529 education accounts. A more detailed analysis will be made in a future article.


               President Obama, in his State of Union Message, called on Congress to raise taxes on the wealthy and on large financial to pay for middle class tax cuts. Most of the funding would come from an increase in capital gains taxes and an end to the step-up in basis for inherited wealth.

               This proposal would also seek to raise the top capital gains tax rate to 28% from 23.8%

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