How nursing homes collect debts: Seizing guardianship

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

It's not an outcome that many people are aware of, according toa report from The New York Times and researchers at Hunter College. In a study of 700 guardianship cases filed in Manhattan over 10 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 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 own 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.

The cases are arising as the country ages, with about 19 percent of Americans slated to be older than 65 by 2030, up from about 12 percent in 2000, according to the Administration on Aging. Nursing homes can cost more than $50,000 per year, with about one-third of residents paying the costs from their own assets, the AARP notes.

When patients and their families run into financial problems, some are finding that that, as an expert told The Times, "it has become a system that's very focused on finances."