Guardianship

Guardianship Certificates

One of the key items in a guardianship process are the certifications needed to prove to the court that a person lacks the ability to make rational decisions regarding her health or finances. In many cases it may be possible to work with a parent to have them examined by two physicians and the parent is cooperative in the process.

But, what happens if the parent is not cooperative? Or, to make it a little more complex, what if your sibling is keeping your parent at their house and refuses to make them available for an examination? Then, your next step is to file a guardianship petition and explain why the two required certificates are not present. The court’s next step would be to set a hearing for both the parent and the sibling (in my example) to show cause (in person) at the court why the parent should or should not be examined.

This is a tricky process that should be guided by an elder law attorney. Of particular importance is to try to guard against the sister (in my example) from getting an innocent physician with no experience with the parent to write a one page letter stating that “mom is competent.” It is important to guard and act against such tactics in order to prevent the guardianship process from inappropriately stopping.

That is why it is critical that why an elder law attorney should be immediately contacted (hopefully before the litigation starts). It is our job to walk the client through the guardianship process and if contested, to walk them through the contested process and what to expect.

Assisted Living Negligence

There are two key issues to consider for facility negligence:

  1. What is the harm that was caused?
  2. Did the facility breach their standard of care?

A Typical Example

Let’s suppose your mother lives in an assisted living facility. She needs an aide attending to her every time she walks because she’s considered at risk for falling. You’ve had no issues with the facility so far.

One day your mother wants to take a walk and is assisted by an aide. Afterwards, she rests by watching television in the main hall. When she wants to go back to her room, however, the aide that assisted her is not around. The aide’s shift had ended, and instead of waiting for the tardy night shift aide, she simply left.

So your mother decides to walk back to her room on her own. In this attempt, she falls and breaks her leg. She’s admitted to the hospital, suffers complications, and passes.

Key Issues in Negligence Cases

In this case, the facility clearly breached their standard of care. There wasn’t an aide to assist her in moving when she needed it. There was also harm as a result of that breach (assuming the hospital was not at fault).

In other cases, the extent of the damages might not be clear. For example, your parent might still be going through rehabilitation or have an extended hospital stay.

Don’t Be Fooled by Assisted Living Negligence

Don’t let the assisted living facility convince you it’s not their fault. Falling is not to be accepted as just part of the risk of living in that kind of facility.

Take Prompt Action

Assisted living and nursing home negligence matters are complex and time-sensitive. While the example above seems relatively straightforward, there are a number of factors to consider. It’s important to document the possible negligence now, including the issues, events, and names of interested persons.

Give our office a call to discuss your situation. The first half hour of the consultation is free. Our firm can help you hold the facility accountable for their wrongdoing.

Nursing Home Negligence

In many instances of nursing home or assisted living negligence, medication mismanagement is the direct cause of other issues, such as a resident falling down.

It All Starts Well

Consider this example. Your mother is a resident in an assisted living facility. She needs 9 different medications given to her on a daily basis. She can independently move from room to room and is not considered at high risk for falling.

Problematic Signs

However, you eventually notice that your mother’s pill supplies are being exhausted faster than anticipated. So you remind the assisted living facility of the physician’s prescriptions, including the proper dosages and reasons for medication management.

Signs of Nursing Home Negligence: The Fall

One day, a staff member from the assisted living facility calls to inform you that your mother “unexpectedly” fell. She sustained various injuries and is now at the local hospital suffering from a broken hip and a concussion.

The Untold Cause

What they didn’t tell you was that the nurse in charge of medication management over-medicated your mother. Normally your mother would have no difficulty walking, but due to the side effects, she became drowsy and weak. This led to her stumbling, falling, and injuring herself.

Proving the Assisted Living Negligence

It will be up to you to prove the negligence in this matter. The assisted living facility is being paid to take care of your parent. Don’t let them get away with their negligence.

Call our office, and let us fight for you. The first half hour of the consultation is free.

 

Nursing Home Negligence

The Facility’s Responsibility

When your parent transitions to a nursing home or assisted living facility, a significant agreement is made. The facility agrees to provide care as your parent needs, in exchange for a hefty monthly fee.

Nursing homes and assisted living facilities often categorize their care into 3 levels. Level 1 is a step up from independent living; the resident needs little supervision. Level 3, on the other hand, indicates a resident that needs regular supervision, similar to a nursing home level of care.

Whatever level of care your parent is in, it is the responsibility of the facility to ensure your parent’s safety. Perhaps that means having a rail on the side of the bed to prevent falls. Or maybe it’s putting an alarm under the bed to alert nurses when a resident moves off the bed. Or perhaps there is the need to have constant assistance moving from place to place.

Signs of Negligence

Here are signs that a nursing home or assisted living facility may be liable for negligence:

  1. The facility is aware of a resident’s unique need.
  2. The facility fails to address that unique need.
  3. As a result, the resident is hurt.

Case in Point

Let’s suppose your mother was recently admitted to an assisted living facility under Level 3 care. Weighing about 160 pounds, she needs the assistance of two aides to move her from any location, such as from the bed to the bathroom.

One morning, one of the nurse aides is running late. Your mother pushes the alert button near her bed, signaling that she wishes to use the bathroom. However, only one aide comes to her assistance. He attempts to get her out of bed, and things are fine—until she puts more weight on the unassisted side and suddenly stumbles. They both fall down hard on the cold, unrelenting floor. Your mother’s thigh bone, already in brittle condition, snaps. She is immediately rushed to the hospital, where she undergoes surgery to set her broken hip.

You are told about this incident immediately by the facility director, who assures you they did everything possible and that accidents sometimes happen. Unfortunately for your mother, the broken hip leads to invasive surgery that leaves her in a weakened condition. She never fully recovers, and her health rapidly worsens. Her surgical wound constantly hurts, and moving her leg also causes her pain. She eventually passes in a nursing home three months later.

This is a case of actionable negligence against the assisted living facility. If they hadn’t violated the standard of care of two nurse aides, your mother would not have fallen to the floor. But because of their negligence, your mother had to endure constant pain over the last remaining months of her life, which was dramatically shortened as a direct result of the injury.

Getting Compensation

If you think your family member has been the victim of negligence in a nursing home or assisted living facility, our law office can help. Sometimes it takes assistance from a lawyer to get the assisted living facility to pay for their negligence. Your family deserves to be compensated for the pain and suffering the negligence caused.

Call our office, and let us fight for you. The first half hour of the consultation is free.

Medicaid Income Issue

Medicaid Medical Assistance Rules About Countable Assets

Medicaid Medical Assistance rules clearly indicate that:

  1. Income is converted at the beginning of the next month to a countable asset.
  2. Applicants can have no more than $2,500 in countable assets.

Applicants whose incomes are deposited at the beginning or middle of the month usually have no issues with these rules. However, applicants whose incomes happen to arrive at the end of the month can be disqualified.

Disqualified Because of End-of-Month Income

Let’s suppose an applicant receives a pension income of $3,000 that arrives on the 30th of each month. In that case, the income hits the account on the last possible day. The first of the month rolls around, and then, by no fault of the applicant, that $3,000 worth of income is now a countable asset. The individual is disqualified from Medical Assistance since the countable assets are over-limit. It seems to be a worse case scenario of never being able to qualify for Medical Assistance. Unfortunately, the Maryland Medical Assistance Manual is not clear on this point.

Administrative Law Judge Ruled for Grace Period

However, this issue was addressed in an administrative law hearing, and the ALJ ruled that income does not automatically convert to an asset as of the first of the month. Rather, income that hits at the end of the month is allowed a grace period before it converts (if unspent) to a countable asset. That opinion is posted here: ALJ Opinon on Income at the End of the Month.

Medicaid Mess

Filing for Medicaid

Filing for Medicaid (called Medical Assistance in Maryland) is a very paper intensive process. Often times it is the children of the parent who ends up trying to gather the mountain of information needed for the application process. Given the five year look back requirement, the burden is often high on that family member.

Medical Assistance Penalty Transfers

Because of the strict rules governing Medical Assistance penalty transfers, those transactions that occurred that were innocent at the time could be devastating for eligibility now. It is very common for an aging parent to live with her child and their family.  It is also very common for that parent to co-mingle her social security income and pension income to the child’s bank account to help pay for the house expenses. But, in the eyes of Medical Assistance, that transfer from mom’s account to her son’s account will be treated as a Medical Assistance penalized transfer. This can be a real mess if this type of transfer was routine and had occurred over the course of several years.

The Cost of Transferring Money

A penalized transfer is a penalty imposed by Medical Assistance that provides that for every $6,800 transferred or gifted out of mom’s account it will result in one month of Medical Assistance eligibility which will start only when you file for benefits.  So, in this case, assume that mom’s social security income was $1,500 a month and this arrangement of her giving her income to her son for the family’s expenses occurred over every month over the last 4 years. That’s $72,000 worth of transfers! Those transfers will result in approximately 10 1/2 months of Medical Assistance ineligibility.

Medical Assistance: Application Processing Time

That penalty start date will not even start until you file for Medical Assistance (at a time when the parent cannot have more than $2,500 worth of assets). Given that a Medical Assistance application may take many months to process, you could receive a denial notice 5 months after you apply. In the meantime, the nursing home bills are accumulating at $11,000 a month. Once that application is denied, the nursing home will expect payment in full or threaten to start the discharge process. They will also take a hard look at who signed the nursing contract and if there was a child who signed the contract they will put pressure on that child to pay the outstanding balance.  It is a mess.

Detangling the Medicaid Mess

Our office can help a family unwind and get rid of this mess. Medical Assistance rules are complicated and harsh. However, our office is good at taking complex Medical Assistance “messes” and getting Medical Assistance eligibility. We recently handled a case with facts very similar to the facts mentioned above and obtaining full Medical Assistance eligibility with a determination of zero penalized transfers. Naturally, the client was pleased.

Bed Sores

Paying Attention: Nursing Home Staff

Bed sores are often the result of nursing home staff not paying a resident any or very little attention. A parent is left on their bed, unable to care for themselves, fecal matter accumulates, and there is a rapid break down of their skin. Serious infection follows. This is negligence at its most avoidable because the cause is simply lack of attention. Nursing homes are paid lots of money to take care of your loved one. Under no circumstances should a bed sore develop.

Awareness of Bed Sore Issues

In many cases, the family only becomes aware of the bed sore issue upon admission from the nursing home to a hospital after a loved one’s health seriously deteriorates.

Taking Legal Action

No one wants to have a bed sore that leads to more complications. How do you know if it is severe enough to warrant legal action? There is no bright line test for the severity of the bed sore to make it actionable. But the general rule is this: the worse the bed sore is and the more complications that result, the stronger the case.

The unfortunate issue with bed sores is that yours will probably not be an isolated occurrence. If your parent or loved one suffers from a bed sore at this nursing home, there is almost a guarantee that this is a chronic issue at this facility. Make sure it does not happen again to your loved one or anyone else at this facility.

Taking Responsibility for Nursing Home Negligence

Very rarely will a nursing home freely admit they are at fault. Often the nursing home will blame a previous nursing home, assisted living facility or hospital. Do not let them get away with it.

Action against a nursing home for this violation of trust can force them to hire the right staff, and your action may protect not only your loved one but also future residents. You are also holding the nursing home accountable for the trust you have given them for the privilege of taking care of your parent or loved one.

The Grand Bargain

Bed sores are often the result of a severe breakdown in the grand bargain—that in return for significant payment, a loved one is guaranteed a safe and secure environment. Please note that even if a loved one is on Medical Assistance, the nursing home is still being paid a very large sum for their care.

Once that bargain is violated and the bed sore issues are severe, you may have a case against that nursing home. Do not let them get away with it.

The Importance of Documentation

Always document the action or inaction by the nursing home staff (i.e. names, witnesses, pictures, dates, times, etc.). This is often the difference between a winning and losing case when legal action is required.

Feel free to give our office a call for a consultation.

Falls at a Nursing Home

Standard of Care to Prevent Falls

Nursing homes and assisted living facilities are under a duty to care for their residents.

This includes a standard of care when it comes to their residents who are at risk of falling. When a nursing home or assisted living facility breaches that standard of care and a resident is harmed, there may be a legal case against that facility.

Often the fall was completely avoidable and should have been prevented. Nursing homes and assisted living facilities are being paid lots of money to take care of loved ones. It is their responsibility to mitigate falls. It is their job. A single fall can be a life altering event, affecting a person’s quality of life for the rest of his or her life.

The Grand Bargain

Nursing homes and assisted living facilities are supposed to be safe havens for our parents and loved ones when living in the community is no longer viable. In essence you are trusting the facility to take care of your parent at a time when you cannot take care of them yourself. It is a grand bargain: the facility is paid handsomely for their care in return for taking every precaution to make the living arrangements safe. In some case, unfortunately, that trust is blatantly violated.

Nursing Staff Negligence

At some nursing homes and assisted living facilities, the nursing staff and aides are underpaid, untrained, overworked, and have high turnover. Mistakes are often repeated and not corrected. Their mistakes only comes to light when disaster strikes and a family member is willing to fight back and say that is not right.

Nursing homes and assisted living facilities want to limit their exposure to “accidents” and will want the resident to sign an arbitration clause to avoid a court trial. Do not sign the arbitration agreement. Signing an arbitration clause is akin to insuring less of a recovery and less accountability for the facility. Often times the facility will ignore the problem, pretend the issue does not exist, or blame the resident. Nursing homes and assisted living facilities know that their residents often suffer from dementia, are weak or physically unstable. These are not unknowns to nursing home or assisted living management, and they are obligated to take measures to address these risks.

Taking Legal Action for Nursing Home Neglect

How do you know when it is time to get an attorney involved?  The nursing home or assisted living facility has to have breached their standard of care to the resident (i.e., it was their fault, their staff was negligent in their action or inaction, etc.). Next, the resident has to be harmed to a significant extent. How much harm is enough? The harm at issue does not have to be permanent but must be significant.

Nursing home and assisted living facilities are big business in Maryland with the average cost of assisted living facilities at $4,000–$6,000 per month and nursing home costs at $8,000–$11,000 per month on average. Sometimes the facility does not hold up their end of the deal. Do not let the nursing home or assisted living facility get away with their behavior. For the sake of your loved one and countless others at their facility, someone needs to take a stand.

Recommendation #1: Document Everything

Take diligent notes of the negligent behavior (dates, names of those involved, witnesses, etc.). Unfortunately, not everyone has a photographic memory. Always document the issue. This helps establish your case when a judge gets involved.

Feel free to give our office a call for a consultation.

Elder Exploitation

Our firm was recently successful in helping a family recover funds for an elderly mother and her adult disabled son who was subject to guardianship.  The person of interest was a neighbor who posed as an accountant to prepare the elder mother’s and her disabled son’s tax returns. Unknown to our client was that this this individual opened numerous accounts and credit cards and misappropriated over $100,000 worth of their assets. Our firm was successful in obtaining the return of those assets. We recently were informed by the family that the perpetrator was successfully prosecuted and is now serving a significant jail time for her actions in taking funds from our client and her disabled son.

Another Win! – Will Contest

We had another will contest win.  Our client was gracious enough to send us a card expressing her thanks.  This is what she had to say:

“Thank all of you for the way you handled our case.  You guys are wonderful.  Along with being very professional, you showed us such compassion.  You guys went over and beyond to make sure the wrong to us was made right.  We cannot thank you enough.  We will highly recommend you.  Thank God for all of you.  Sincerely, B.J.

P.S.  Wow!!! What a check (smile).”