Power of attorney (POA) can help aging adults entrust someone else with their care. At the same time, power of attorney allows families to make the best decisions for their elderly loved ones’ medical, nursing home, and end-of-life care when incapacitated.
A power of attorney is a legal document that gives an agent the right to perform specific duties on the principal’s behalf when they can no longer make their own decisions. However, despite what many believe, it does not make the agent responsible for the principal’s nursing home bills.
If you have concerns about your power of attorney from a nursing home resident, the personal injury attorneys at Nursing Home Law Center, LLC, are happy to answer your questions.
Contact our nursing home lawyers at (800) 926-7565 for a free consultation.
What is a Power of Attorney?A power of attorney (POA) grants someone the right to act on your behalf, usually referred to as an “agent” or “attorney-in-fact.” It is a legal document containing actions the agent can take when you can no longer act for yourself due to mental or physical limitations.
Additionally, a power of attorney can:
There are two primary types of POA:
All states recognize power of attorney documents. However, every state has different laws and regulations governing POAs. Check your state law on POAs to determine your agent’s limitations once you appoint them.
What is Guardianship?If you become incapacitated without a POA or living will, it may be necessary for the court to appoint an agent for you. Court-appointed agents are known as conservators, guardians, or committees, depending on your state laws.
What a Power of Attorney Can Do For Nursing Home ResidentsA power of attorney has many practical uses, such as when you want to sell an asset but don’t want to appear at the transaction in person. In this case, you can entrust someone else to accomplish the task with a POA.
However, powers of attorney have much more essential purposes for nursing home residents. Firstly, a medical or health care POA for a nursing home resident can give the agent the right to decide:
On the other hand, a financial or durable power of attorney gives a resident’s agent the authority to:
Additionally, a financial POA document allows an agent to apply for Medicare, Medicaid, Department of Veterans Affairs, and other government benefits on behalf of the principal.
Using a Power of Attorney Against Nursing Home AbuseAn agent can file a nursing home abuse case if the principal suffers abuse, neglect, or mistreatment in a nursing home facility.
If the elderly person did not grant power of attorney to someone else, immediate family (spouses, children, parents, siblings) could file a lawsuit on their behalf. Other relatives may step up if close family members are unavailable (e.g., cousins, grandparents).
Are There Limitations on the POA Agent’s Authority?A power of attorney does not grant an agent or attorney-in-fact ultimate power over the principal’s (the person that gave the power) decisions and welfare. Despite the title, an attorney-in-fact is not practicing law or obligated to provide legal counsel.
Generally, the agent is legally required to act in the principal’s best interests and must:
Furthermore, the law states that an agent cannot change the principal’s will or transfer a power of attorney to someone else. However, an agent can decline their duties.
Is Power of Attorney Responsible for Nursing Home Bills?Being granted a power of attorney does not make you personally liable for the principal’s nursing home bills. However, some nursing homes try to make the power of attorney agents pay despite their lack of responsibility for the principal’s nursing home costs.
However, a power of attorney may make you responsible for the logistics of bill payment (if outlined in the document), meaning you could be tasked with signing checks and paying medical bills from the principal’s own funds (not your own).
Nursing homes cannot make you personally liable for the principal’s nursing home bills or deny service if you refuse to accept liability on behalf of the elderly person. This rule is under Title 42 of the Code of Federal Regulations, section 483.15(a)(3), which states:
“The facility must not request or require a third-party guarantee of payment to the facility as a condition of admission or expedited admission, or continued stay in the facility. However, the facility may request and require a resident representative who has legal access to a resident’s income or resources available to pay for facility care to sign a contract, without incurring personal financial liability, to provide facility payment from the resident’s income or resources.”
Facilities Can Make Power of Attorney Responsible for Medical BillsSome nursing homes try to make individuals with power of attorney take on personal financial liability for the resident’s nursing home bills through the fine print. Unless you sign a contract stating you accept personal liability for the principal’s nursing home bills, you are only liable for using the resident’s funds you have control over.
Otherwise, you could be legally responsible for the principal’s nursing home bills (from your personal funds). Plus, the nursing home may claim that you have accepted personal financial liability by signing the contract.
If you unintentionally signed this type of contract, you could get it reconsidered or amended with the help of an attorney.
What Happens When an Elderly Resident Cannot Pay Their Nursing Home Bills?Federal law prohibits nursing homes from improperly discharging residents for failing to pay their nursing home bills. Nursing homes must make proper arrangements to discharge a resident.
If a nursing home engages in improper discharge, it should be held responsible for violating federal law and the resident’s rights. Contact a nursing home abuse attorney to determine your legal options if this happens to you or a loved one.
When Are Family Members Personally Liable for Nursing Home Bills?A power of attorney agent does not have personal liability over nursing home expenses incurred by the principal unless they accept that obligation under the contract. However, family members named as “responsible parties” on nursing home contracts may be personally responsible for unpaid bills in certain circumstances.
A “responsible party” must “make a reasonable effort” to ensure their elderly loved one pays their nursing home bills. For instance, the responsible party, usually an adult child, may be obligated to apply for Medicare on their loved one’s behalf if the resident runs out of money. Otherwise, the facility can sue for breach of contract to recover unpaid nursing home bills.
This situation applied to the case of Jewish Home Lifecare v. Ast (NY Sup. Ct. 2015), wherein the son agreed to be a “responsible party” for his elderly parent. The facility sued him for unpaid bills, claiming he misappropriated his mother’s money and failed to apply for Medicaid services.
The court held that the son could be accountable for a breach of contract because he was named the responsible party, potentially making him personally liable for the unpaid nursing home bills.
Filial Responsibility LawsNearly half of the states have filial responsibility laws, which obligate adult children to provide specific necessities for their aging parents, including but not limited to food, housing, and medical care. However, these obligations only apply when the elderly parent is ineligible for Medicaid benefits.
Filial responsibility laws are rarely enforced despite being present in 30 states, as most elderly parents who cannot pay for care with their own assets qualify for Medicaid.
The Importance of Power of Attorney for an Elderly ResidentA power of attorney can help an elderly resident in a nursing home or assisted living facility protect their health, safety, and end-of-life wishes by appointing someone as their agent. A POA is highly beneficial for long-term care residents because:
Consult an experienced estate planning attorney to ensure a complete understanding of a POA.
How to Choose a POA Agent or Attorney-in-FactAn agent will have significant authority over many aspects of your life, especially if you grant them general power of attorney that authorizes an agent to handle legal and financial matters. Hence, choosing a reliable agent is crucial for your future.
Agents are usually adult children or relatives, but they can also be friends or other adults in your life. In any case, choosing a friend or family member you trust completely and who is willing to act as your agent is essential.
You should also assign co-agents or successor agents if something happens to your primary agent. Furthermore, you can appoint two different people for your healthcare and financial POAs, but they can be the same person.
A person that wishes to create a POA must be able to make sound decisions. Drawing up this document as soon as possible is best.
Contact Our Nursing Home Abuse Attorneys for More InformationPower of attorney for a nursing home resident serves many crucial functions, primarily ensuring proper care. Furthermore, it can help protect you or your loved one from nursing home abuse and neglect.
Do you have more questions on power of attorney for nursing home residents? Or did you or a loved one suffer nursing home abuse? Our Nursing Home Law Center, LLC attorneys can help.
Our skilled team advocates for residents’ legal rights and ensures our clients understand what power of attorney documents entail.
Contact our nursing home abuse lawyers at (800) 926-7565 or use the contact form for a free consultation. All confidential or sensitive information you share with our legal team will remain private under an attorney-client relationship.
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