Do Guardians Really Look Out for Their Wards?
August 10, 2021 | Medical Malpractice
In most states, a guardian may seize total control of a person’s assets if that person is incapacitated.
According to one observer, “incapacitate” is so vague that it could mean “anything from being in an absolute coma to not being able to find your car keys.”
Essentially, there is a presumption that the guardian is acting in good faith.
Nationwide, guardians control about 1.3 million “incapacitated” adults and control over $50 billion in assets.
As many as two-thirds of these people may be adults over 70. “Financial exploitation is a very real concern for older adults, especially older adults with resources,” observed Syracuse University law professor Nina Kohn.
“Unfortunately, sometimes the legal tools meant to protect older adults can be used to exploit them,” he added.
Even people with a power of attorney could become involuntary wards in some situations.
A pair of uniform laws which are applicable in all member states, the Guardianship, Conservatorship and Other Protective Arrangements Act and the Power of Attorney Act, could end some abuses. But only about a half-dozen states have adopted these measures.
Financial Abuse at Nursing Homes
These problems are especially acute for nursing home residents in New York.
Most guardianship actions hinge on Section 81 of the Mental Hygiene Law.
This law specifically allows “the 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” to file a guardianship petition.
The judge will grant this petition if there is clear and convincing evidence of incapacity.
This law does not define “incapacity.” Furthermore, the judge may waive the rules of evidence and grant a petition based solely on the contents of the court evaluator’s (guardian’s) report.
Frequently, nursing homes target residents with substantial assets, like a retirement account or home, who receive infrequent visits.
So, there is much to gain and, since it’s unlikely that anyone will contest the proceeding, little to lose. Since family members are not entitled to notice of the guardianship proceedings, they might not know about them.
The United States Senate Committee on Aging recently demanded that laws like this one be changed nationwide.
It warned that “unscrupulous guardians” could “liquidate assets and savings for their own personal benefit.”
Other forms of financial abuse at nursing homes include phishing scams and forged documents.
The “your grandson is in jail and needs bail money” scam is the most common one, mostly because it is frightening and effective.
Frequently, an unscrupulous person sends the text and also advises the resident to pay the money without asking questions. Other people take advantage of their positions to trick residents into signing legal documents.
Liability for Nursing Home Financial Abuse
Individuals are morally responsible for abuse. The nursing home could be financially responsible, if a New York personal injury attorney uses the proper legal theory and the injury was foreseeable.
Negligent hiring and negligent supervision are the most common legal theories in this area.
Basically, negligent hiring is hiring a person whom the employer knows is incompetent. Sometimes, constructive knowledge (should have known) is enough.
For example, if red flags arise during the interview process and the nursing home does not diligently investigate the candidate, the negligent hiring theory could apply.
Criminal records work a bit differently.
People with criminal histories are not incompetent as a matter of law. Instead, the criminal history must normally have a relationship with the negligent action.
If Phil has a prior fraud conviction and he files a frivolous guardianship action, the negligent hiring rule could apply. But if Phil has a prior assault conviction, this rule probably doesn’t apply.
Negligent supervision is usually a failure to properly supervise employees or a failure to take proper disciplinary action. Usually, if there are any misconduct allegations, the employer must investigate them transparently, thoroughly, and efficiently.
The punishment, if any, must fit the crime, if any.
Normally, employers have written rules which set the parameters of these investigations. If that’s the case, the employer must follow these rules to a T.
“Foreseeability” is a legal term which basically means “possible.” It’s possible, although unlikely, that any employee who regularly interacts with residents could abuse someone.
Foreseeability could be an issue if the abuser was someone like a parking lot attendant.
Damages in a nursing home abuse case usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
Additional punitive damages could be available as well, in some extreme cases.
Long-term care facilities could be financially responsible for an individual’s nursing home abuse.
For a free consultation with an experienced personal injury attorney in New York, contact Napoli Shkolnik PLLC. We do not charge upfront legal fees and only recover fee if we win the case.
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