I get asked a version of this question quite frequently. I usually reassure customers that most establishments simply require you to pay monthly and be able to leave at any time. Now, I may have to change my answer, as news broke this week that a New Jersey woman had all of her assets stolen by the very entity she trusted to take care of her.
The woman entered a facility for a short-term rehabilitation stay with the firm intention of returning home. Apparently the facility thought otherwise, as they brought in a finance company to “help” the woman liquidate her assets to pay for her care at the facility and spend on applying for Medicaid. I and other senior attorneys, as well as several state consumer protection agencies, have long warned consumers against lay Medicaid counselors. These entities work closely with the nursing home industry, often having the same ownership and leadership. In this case, the POA is both an agent of the facility and the director of the Medicaid consulting firm that was hired to make the resident eligible for Medicaid without her knowledge.
Some facilities require or require residents to hire these Medicaid counselors to prepare Medicaid applications for them. Unfortunately, they are not lawyers and their allegiance clearly goes to the establishments and not to the residents or their families. Consequently, they fail to inform residents of opportunities to protect their assets or income. Worse still, in many cases, they failed to complete or submit the application or did so negligently, resulting in the application being denied. But unlike the case where a lawyer is wrong, there is no recourse for the families, as these entities do not have malpractice insurance. Sometimes the Medicaid advisor will simply close up shop and disappear – only to resurface later with a different organization.
There have been previous reports of facilities and the Medicaid counselors they work with requiring residents to sign powers of attorney and even access resident accounts through questionable means. These latest allegations, however, take this situation to a new level. It is alleged that the resident was forced to sign a power of attorney when she did not have the capacity due to the medication she was prescribed. It was further alleged that Future Care Consultants liquidated the resident’s assets without her knowledge and that the funds were not returned when she left the facility. The family also claims they were prevented from visiting or communicating with the resident.
The allegations are reminiscent of the film I care a lot, which I have already criticized as totally unrealistic. However, in recent months I have had clients report that they have been threatened with facilities if they use the services of a lawyer. It is essential that consumers know their rights. You cannot be required to sign a power of attorney. You cannot be required to hire someone to file your Medicaid application. And you can’t be prevented from using a lawyer if you want.
©2022 Norris McLaughlin PA, All Rights ReservedNational Law Review, Volume XII, Number 237