Can a Nursing Home Hold Friends or Family Members Responsible For a Resident's Care?
Entrusted Legacy Law
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Feb 10, 2023
Pennsylvania - Greater Pittsburgh Area
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If your loved one is entering a nursing home, you may worry
whether you could be liable for their care. Under federal law, a facility
cannot require a family member or friend to co-sign an admission agreement and
take on personal liability. However, nursing homes around the country still try
to do so, and often these matters end up in court.
What can you do to prevent this from happening to you? It
starts with educating yourself on what is and isn’t allowed.
A law known as the Federal Nursing Home Reform
Law prohibits a nursing home or facility from requiring or asking for a
financial guarantee from a third party. Federal regulations regarding Medicare
and Medicaid have similar restrictions.
These laws and regulations state that a home cannot have a
resident’s family member or friend co-sign an admission agreement to take on
financial liability. However, a nursing facility may obtain the signature of
the resident’s agent, who has access to the resident’s income or assets,
agreeing to use these resources to pay for care. Still, this agreement may not
impose personal financial liability on the agent.
Review Before You Sign
If you’re assisting a loved one with entering a nursing
home, you should carefully review all the admission paperwork before you sign
it. Many facilities have unscrupulous practices of using admission agreements
that violate federal law or regulations.
You don’t have to sign or “volunteer” to sign a financial
guarantee that makes you personally responsible. It’s incorrect if a nursing
home claims a guarantee is necessary because the federal law only applies to
Medicaid-eligible individuals. Nursing homes are also not allowed to condition
admitting or keeping a person on receipt of a third-party guarantee.
Today, the most common tactic used by nursing homes is an
admission agreement that obligates the signor as an agent with supposed control
over the resident’s money. These agreements stipulate the agent will apply
these resources to the nursing home expenses and apply for Medicaid on the
resident’s behalf. Often, the person signing this document doesn’t know how to
handle this situation, doesn’t have this control, or makes mistakes in the
resident’s Medicaid application, causing coverage to be denied.
What follows may be a lawsuit by the nursing home, claiming
the agent violated their duties in the agreement and must pay the care costs.
Courts have gone both ways on whether these agreements are enforceable, and the
agent’s conduct often influences a court’s decision. Egregious conduct can lead
to courts ruling in favor of the nursing home. An example is where an agent
used the resident’s money for luxury items or other people’s expenses rather
than their loved one’s care.
Plan Ahead As Much As Possible
The best action is to plan before nursing home care is
necessary. This can put you or your loved ones in a position to be ready to
apply for Medicaid should the need arise. At the same time, an aging individual
can do proper asset protection planning and avoid look-back periods creditors
could otherwise exploit against the resident or an agent.
However, this isn’t always possible for many older adults and their family members. Individuals who will take on the responsibility of being an agent should understand what this entails and seek the advice of an elder law attorney in your area before starting the admission process.
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