Category Archives: Guardianship

Elder Law Office Maryland. Estate Planning. Nursing Home Negligence. Asset Protection. Guardianship. Elder abuse

The Scary Truth Behind Netflix’s “I Care a Lot”

I Care a Lot is a recently released Netflix film that follows the fictional account of a nursing home administrator who systematically exploits the elderly for financial gain. There are dramatic scenes of Marla Grayson (the nursing home administrator) with her wall of mugshots of her elderly residents. It shows a dramatic insensitivity that the residents are nothing more than cash cows to the nursing home system.

More chilling is the twisted use of the court process to declare these individuals as incapacitated, as a way to strip them of their rights to make decisions on their own. In essence, they become victims of a system that is supposed to protect them, robbing them of all decision-making power and their assets.

How Real Is Elder Abuse?

Can this happen in real life? The unfortunate answer is, “Yes”.

While the wall of elderly mugshots and a corrupt physician may be overly dramatic, there is an uncomfortable reality of nursing homes denying their residents basic rights and abusing the court guardianship system and the medical assistance process in order to get paid.

According to the National Council on Aging, up to five million older Americans are abused every year, and the annual loss by victims of financial abuse is estimated to be at least $36.5 billion.

Certainly, there are many well-run and well-meaning nursing homes, but there are also some nursing homes that are neither. For these nursing homes, their operating process is to cut off the resident’s family, deny them access, or grant access to only those who will align with their goal of keeping the resident at the nursing home and facilitate the nursing home’s wish to be paid.

How Can This Kind of Elder Abuse Happen?

A little background explanation is in order here. Let’s look at the typical process that an older adult might go through to end up at a nursing home.

For example, if your mom is over 65 years of age and has more than a 3-night stay at an area hospital, then she will generally be eligible to receive Medicare benefits. These benefits will pay for her hospital stay and then her nursing home rehabilitation stay—for the first 20 days in full, and then typically up to 100 days, with a co-pay expected from days 21–100. (A 100-day period is not guaranteed though.)

The key here is that the decision to move your mom from the hospital to the nursing home for rehabilitation would be made quickly. It is often the discharge planner at the hospital who makes the recommendation for rehabilitation at an area nursing home of their choice. As such, this is a guaranteed, temporary payment source for area nursing homes.

So, let’s say that your mom goes to nursing home rehabilitation for the 100 days that are covered by Medicare. Then, it’s time for your family to meet and make a big decision. What’s next? Should mom come back home, go to an assisted living facility, or stay at a nursing home?

The Nightmare Nursing Home Situation

At this point, a problem could arise between the nursing home and your family. What if your family and your mom’s health care agent want to take her home, but the nursing home recommends that she stay there? That is when the nightmare could begin.

If the nursing home wants to keep your mom, then they might say something like, “Your mother is better off staying here. She gets agitated when your family talks about taking her home.” Thus, the nursing home views your family as “agitators” who are upsetting their resident. Of course, this ignores the fact that your mom might want to come home, and she becomes complacent only when she is not reminded of the option to come home (i.e., she gives up).

Then the nursing home will demand payment. If your mom’s power of attorney holder does not use your mom’s money to pay the nursing home, then the nursing home will file for guardianship. This will strip your right, as your mother’s child, to be her agent.

The nursing home will have the court appoint a random attorney to control your mom’s money, and they will appoint the local Department of Social Services to make health care decisions for your mom. The goal of the random attorney will be to sell all of your mom’s assets and apply for medical assistance (i.e., Medicaid) to continue to pay for her nursing home stay. The goal of the Department of Social Services representative will be to just keep your mom at the nursing home where “she is safe.”

It is not unheard of that the nursing home will cut off access to your mom’s medical information or cut off your contact with mom all together. This issue has become even more pronounced during COVID-19.

It is not unheard of that the nursing home, when it files for guardianship, “conveniently”:

  • does not list you and your family members as interested persons
  • fails to mention that your mom has a power of attorney holder or health care agent (when they know of both)
  • tells you not to worry about your mom’s guardianship hearing and that you don’t have to attend
  • blindly files your mom’s medical assistance applications without knowing her assets, in order to have Medicaid pay the nursing home. (Please keep in mind that the medical assistance reimbursement, while it is not as high as the private pay rate, is substantial.)

The nursing home will often characterize this new guardianship filing as an “emergency” guardianship filing, not because there is any emergency with your mom, but because they want to get paid as soon as possible. The nursing home does not want a non-payment situation that could result in your mom’s discharge. (Although, from your family’s perspective, a non-payment situation leading to discharge would be just fine, if you wanted to take your mother home anyways.)

Adult Guardianship Issues in Maryland

In order to have a successful filing for a guardianship petition, in Maryland you need two physician certificates to prove that your mom is unable to make financial or health care decisions on her own.

Here are some questions about guardianship that you might have, along with my responses:

  • Is it possible that there could be corrupt physicians gaming the system to fraudulently declare your mom as incapacitated, as shown in I Care a Lot? That I have not seen.
  • Is there a lot of grey area when it comes to meeting the guardianship standard? Yes.
  • Are there cases when such a certificate is completed by a physician in 5 minutes, based solely on the first certificate? Yes.
  • Have there been circumstances of a physician completing certificates for guardianship in full, before even meeting the individuals or never meeting them? Yes (but that is rare, from my point of view).

The more common issue is not whether your mom needs help or not, but whose decision is that to make and what right does the nursing home have to make that decision.

Local Elder Law Firm Expertise

I’ve been in practice for over 19 years, and I don’t think there has been a single incident of a parent saying that they want to go to a nursing home. Nursing home placements are contemplated as a last resort when nothing else works.

The issue in many cases is that the nursing home becomes a third party in a battle over where mom is going to reside in her final days. Oftentimes, mom’s voice becomes irrelevant. But make no mistake, at the heart of this process, the nursing home’s concern is how it’s going to be paid.

The nursing home will frame the context to say that mom is “safer” there than at home. This argument will be used by the nursing home to convince the court that she should continue to stay there. The nursing home will have access to her medical records and the financial resources to hire a physician to articulate this position.

At our elder law firm, we are often involved in fighting these decisions. That means that we fight to get access to your mom’s medical records (which may lead to a separate battle of their release) and fight to maintain your right to make decisions for mom.

If the court appoints a random attorney as guardian of the property, as stated before, their sole role is to sell mom’s assets. If there are jointly held assets, an attempt will be made to sell them. If there are gifts of assets or transfers within the last 5 years, they will come under scrutiny, and depending on if there are assets to fund this random attorney in litigation, there will be an effort to have these gifts undone or otherwise transferred back.

The next thing you know, you are being cast as the “bad guy” for not returning these gifts, and now litigation begins with your mother’s guardian of the property and you to get these assets back. The reason why the guardian of the property may go after these transfers is that these transfers may be barriers for the nursing home to be paid by Medicaid. Gifts within 5 years are penalized transfers and will be barriers for the nursing home to be paid. As such, they will likely be pursued.

At the heart of these transactions is the court process, which will be used to try to keep mom at the nursing home, sell all of her assets, have strangers appointed as her guardian, and have this third-party attorney go after you, if you are involved in transactions that prevent the nursing home from being paid.

This is not the storyline of I Care a Lot. But the core issue of the nursing home being paid and abusing the judicial system to meet their needs is very real. And the nightmare, while not as dramatic as the plot of I Care a Lot … is very real.

We Care a Lot

At the Law Office of Adam J. Roa, we understand how scary and overwhelming these issues can feel for your family. As an experienced elder law firm in Maryland, we are here to guide you and fight for you. Please call us for a consultation at 410-296-8166 x292.

Elder Law Office Maryland. Estate Planning. Nursing Home Negligence. Asset Protection. Probate.

COVID-19 Guardianship

If your parent or loved one needs someone to make decisions for them, then they will need to have a court-appointed guardian. The main issue for establishing guardianships during the COVID-19 pandemic is the issue of timing.

In Maryland, the normal, non-emergency adult guardianship process is started by filing a petition. After that, it would typically take 6–8 weeks before a hearing would be held to determine who the court was going to appoint as guardian. That has changed under COVID-19 rules.

Maryland Court Guardianship Hearings

After reopening the circuit courts in June 2020, the circuit courts, as of December 2020, entered modified court openings.  Each county will have its own unique policy on in-person vs. remote hearing rules.  However, the general rule, as of now, is that uncontested guardianship will continue to be remotely held for the foreseeable future.    For contested guardianships, this is on a case by case basis.   If there is a strong inclination for in-person or remote hearing for a contested matter, this request should be made expressly to the court.   The other developing matter is the time between when a petition for guardianship is filed and perfected and the eventual hearing date.  That is a continuing to be fluid issue that is impacted by the court closings and the regular rescheduling of court cases.

How to Push Your Guardianship Case Forward During COVID-19

For uncontested matters or matters of limited scope, the best path to proceed is to have all the attorneys in your particular guardianship case cooperate to push for a video hearing. The court is likely going to be more receptive to video hearings if all interested parties are represented by counsel.

Contested Guardianships

The situation is more complicated, however, if the guardianship case is contested—meaning at least two individuals are fighting over who should be appointed as guardian. As long as the alleged disabled person is in a safe environment, then getting a court date in the near future for contested guardianship will be problematic.

Here are some other options you can explore:

  1. Mediations, which can occur remotely, are encouraged. They can be a way to resolve a contested guardianship matter much sooner than having a court rule in a contested matter that may not be set for many months.
  2. What also could be explored is having the interested parties consent to the temporary appointment of a guardian. A key part of this discussion should include agreeing that the temporary guardian is not only limited in time but also has very limited powers. This may be a creative way to address the very urgent decisions now while delaying more complex issues for a court date many months from now.

We’re Here to Help During COVID-19

We understand that these are uncertain times. Now, more than ever, is when your loved ones need you to be their advocate in planning for the future.

As an experienced elder law firm in Maryland, we’re happy to guide you through your guardianship case. Please call us at 410-296-8166 x292.

Filing a Petition for Adult Guardianship in Maryland

One of the first steps in the Maryland adult guardianship process is filing a petition with a circuit court. If you’re preparing to file a petition for guardianship, you might have some questions.

Am I eligible to petition for guardianship?

According to the law, you must be an interested person to petition for guardianship. An interested person may include:

  • Someone nominated by the disabled person when they had sufficient mental capacity
  • The disabled person’s immediate family members (spouse, parents, adult siblings, children or other lawful heirs)
  • Health care agent or other government agencies

Where do I file the petition?

You need to file the petition with the circuit court in the county (or Baltimore City) where the disabled person lives (or, in some cases, where the person is hospitalized or where their property is located). The court will ask you to pay a filing fee.

Are guardianships of person and property filed in the same petition?

Usually they are, but they do not have to be.

What documentation do I need to file the petition?

Your petition must prove that the disabled person is unable to make responsible decisions and needs a guardian of the person or property. The petition’s content includes:

  • A description of the disability
  • The disability’s effect on the person’s ability to function
  • The reason a guardian should be appointed
  • Alternatives to guardianship that have been attempted and failed
  • Information regarding previously appointed guardians
  • A list of the disabled person’s assets
  • The disabled person’s attorney or a request for a court appointed attorney
  • Two certificates of disability from licensed health care professionals who have examined the person

File a Guardianship Petition with Less Stress

A petition that is incorrect or incomplete might cause your case to be delayed or dismissed. If you have questions regarding how to file a petition, then give us a call. Whether or not you have a lawyer, the court will require you to follow the same laws. We can advise you how to prepare a sound petition and how to navigate the various legal requirements of adult guardianship.

Maryland Adult Guardianship Process

If someone’s health condition prevents them from making decisions regarding their medical care and finances, they may need a court appointed adult guardian.

How to Become an Adult Guardian in Maryland

We routinely provide advice regarding the guardianship rules and processes. Here is an overview on how to become an adult guardian in Maryland.

Decide on guardianship type
As a petitioner, you need to determine if you are seeking to become guardian of the person, guardian of the property, or both.

File a petition
The petition needs to include two certificates that prove the alleged disabled person lacks the ability to make rational decisions regarding health or finances.


Appoint the attorney
If the disabled person doesn’t already have representation, then the court will appoint an attorney to act as their advocate.

Inform all interested persons
There is a deadline (usually 20 days) for all interested persons (including immediate family members) to voice any opposition regarding the initial petition.


Settle a contested guardianship
This step occurs only if there is any opposition or issues regarding who should be appointed as guardian.

Appoint the guardian
In a contested guardianship, the court will rank the contestants by legal standards and determine the guardian. If there is no opposition, the guardianship is considered uncontested.


Attend training
The guardian must attend mandatory training to learn their roles, duties, and responsibilities. Some courts offer classes, and some courts allow you to take the training online.

File an inventory
The guardian must file an inventory, detailing all of the disabled person’s assets.


Submit annual reports
On the anniversary of the date the court assumed jurisdiction over the person, the guardian must submit a yearly report. The court reviews the report and either accepts it and continues the guardianship or takes other appropriate action.

A Maryland Guardianship Attorney Can Help

We can guide you through the whole process of becoming an adult guardian, including filing the petition, representing you through the court hearings, and preparing the inventory of assets. The process to arrange an adult guardian can be complicated, but we are here to help.

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.

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.

Two Guardians?

Can We Have Two Guardians Serve at the Same Time?

The answer to this is easy: yes.   However, the more interesting question is should you have two individuals serve as guardians at the same time.  Remember, that as co-guardians each of you would have to agree on every decision.  If you didn’t agree each of you would have to petition the court for resolution.  That is time consuming and expensive.  My general advice for guardianship is to have only one person appointed at a a time.  If that person can no longer serve, then this person should submit a resignation with a petition from the new proposed guardian with, ideally, the written consent of the previous guardian.

POA Breach of Fiduciary Duty

A Power of Attorney Holder’s Breach of Fiduciary Duty

There is no question that a financial power of attorney holds what is called a “fiduciary duty” to act in the best interests of the grantor.   But what if that power of attorney holder breaches that duty and takes “mom’s” funds for herself?  What if her taking of mom’s funds caused mom to be disqualified from Medical Assistance (i.e. Medicaid)?  Can she be found liable?

An interested case in Indiana answered that quesion in the affirmative.

An Indiana appeals court rules that a woman breached her fiduciary duty to her mother when, among other things, she refused to cash out a life insurance policy in order to qualify her mother for Medicaid and later profited from the policy. Shaw v. Covenant Care Waldron Home (Ind. Ct. App., No. 73A04-1005-SC-317, March 2, 2011) (unpublished).

Joni Shaw admitted her mother to a nursing home. Ms. Shaw signed the admission agreement on behalf of her mother as her attorney-in-fact. Ms. Shaw applied for Medicaid on her mother’s behalf, but the application was denied due to a life insurance policy. Ms. Shaw refused to cash out the policy, and the Medicaid application was never approved. In addition, Ms. Shaw withdrew funds from her mother’s account and deposited them into her sole account. After her mother died, her brother, who was the beneficiary of the life insurance policy, gave her $8,000 from the proceeds of the policy.

The nursing home had an outstanding balance of $5,709.40, which Ms. Shaw refused to pay. The nursing home sued, alleging breach of contract and breach of fiduciary duty. It argued that an attorney-in-fact who breaches a duty to the principal is liable to third parties as though he or she were the principal. The small claims court found in favor of the nursing home, and Ms. Shaw appealed.

The Indiana Court of Appeals affirms, holding that Ms. Shaw breached her fiduciary duty to her mother. According to the court, because Ms. Shaw profited from refusing to cash in the life insurance policy and she transferred funds from her mother’s account to her own account, it was clear that Ms. Shaw was acting in her own self-interest to the detriment of her mother.

from www.elderlawanswers.com.

The interesting question from a Maryland point of view is what right does the nursing home have to sue the attorney-in-fact.  Can other interested family member’s sue on behalf of mom?  The answer to that question is “yes.”  However, court action will need to be started to give that family member standing to recover the stolen assets.

Guardianship

If My Sister and I both File for Guardianship for our Mother, who has Priority?

The starting point is what type of guardian do you seek.  There are two types of guardians.  The first is the guardian of the person.  It is this person that makes medical related decisions on behalf of the disabled.   The second type of guardian is the guardian of the property.  This person makes strictly financials decisions on behalf of the disabled.  Both types of guardians need not be assigned at the same time.   The priority for each, while similar, is different.

Maryland Ann. Code Est. & Trust § 13-707 provides as follows, as it relates to the priority of eligibility of someone asking the court to be appointed as guardian of the person.

Persons are entitled to appointment as guardian of the person according to the following priorities:

(1) A person, agency, or corporation nominated by the disabled person if the disabled person was 16 years old or older when the disabled person signed the designation and, in the opinion of the court, the disabled person had sufficient mental capacity to make an intelligent choice at the time the disabled person executed the designation;

(2) A health care agent appointed by the disabled person in accordance with Title 5, Subtitle 6 of the Health-General Article;

(3) The disabled person’s spouse;

(4) The disabled person’s parents;

(5) A person, agency, or corporation nominated by the will of a deceased parent;

(6) The disabled person’s children;

(7) Adult persons who would be the disabled person’s heirs if the disabled person were dead;

(8) A person, agency, or corporation nominated by a person caring for the disabled person;

(9) Any other person, agency, or corporation considered appropriate by the court; and

(10) For adults less than 65 years old, the director of the local department of social services or, for adults 65 years old or older, the Secretary of Aging or the director of the area agency on aging, except in those cases where the department of social services has been appointed guardian of the person prior to age 65. Upon appointment as guardian, directors of local departments of social services, directors of area agencies on aging, and the Secretary of Aging may delegate responsibilities of guardianship to staff persons whose names and positions have been registered with the court.

So, if a son and daughter both wanted to become guardian of the person for their mother and the daughter was a health care agent of the mother in accordance with Title 5, Subtitle 6 of the Health-General Article, she would have priority of appointment over her brother who was not a health care agent.  However, please note that this is only a starting point.  If the son could “show cause” why the court should over look this priority, the court may overlook this statutory priority and pick the son, even though he was not the named health care agent.

The analysis for priority of appointment for guardian of the property is different.  Maryland Ann. Code § 13-207 provides, in part:

(a) Persons are entitled to appointment as guardian (of the property) for a minor or disabled person according to the following priorities:

(1) A conservator, committee, guardian of property, or other like fiduciary appointed by any appropriate court of any foreign jurisdiction in which the minor or disabled person resides;

(2) A person or corporation nominated by the minor or disabled person if the designation was signed by the minor or disabled person after his 16th birthday, and, in the opinion of the court, he had sufficient mental capacity to make an intelligent choice at the time he executed the designation;

(3) His spouse;

(4) His parents;

(5) A person or corporation nominated by the will of a deceased parent;

(6) His children;

(7) The persons who would be his heirs if he were dead;

(8) A person or corporation nominated by a person who, or institution, organization, or public agency which, is caring for him;

(9) A person or corporation nominated by a governmental agency which is paying benefits to him; and

(10) Any other person considered appropriate by the court.

Please note that section 10 of this section allows the court to appoint “any other person considered appropriate.”   So, if all of the interested parties (i.e. children, etc.) are deemed undesirable (for whatever reason), the court could well assign an attorney, not affiliated with any of the interested person, to serve as guardian of the property.

The above listed information is but a snap shot of some of the issues relating to priority.  Often, the determination of guardianship is both document driven and fact driven.

Contested Guardianship

Adult contested guardianship can occur when a parent losses the ability to make decisions for her health and/or her financial well-being.

Is There a Need for a Guardian?

Having a properly executed financial power of attorney and advance directive can certainly avoid the need for guardianship in many instances.  But, what happens if the financial power of attorney holder or the health care agent abuses his/her role as agent?  What happens if a new financial power of attorney or advance directive is created under circumstances where the validity of the document is questionable?  One possible, and most likely scenario, involves invoking court oversight by filing a petition for guardianship.  The guardianship process can be complex and may not be the appropriate route for all circumstances.

Questions?

Post your contested guardianship questions here.