Fredrick P. Niemann, Esq., NJ Asset Protection Attorney
Many times the children of elderly clients ask whether they can be held responsible for Mom or Dad’s long term care costs. My answer always was that there wasn’t anything to worry about unless you take your parents money. That no longer appears to be the case.
A recent case in Connecticut highlights how the new Medicaid laws passed as part of the Deficit Reduction Act of 2005 are really hurting residents and nursing homes alike and now potentially also affecting other family members. In that court case, the nursing home resident’s son signed the admission agreement on behalf of his mother. As in most nursing home agreements Son was asked to sign as responsible party, which he did not do. Nevertheless, Nursing Home advised him verbally that he was the responsible party.
Son then applied for Medicaid benefits on behalf of Mom. Son did not, however, follow through on the application process in a timely manner. He failed to provide all the information and documentation that the State needed and he did not spend down Mom’s assets quickly enough, delaying the application’s approval. As a result, months of benefits were lost, never to be regained, benefits that Nursing Home would have received.
Nursing Home sued Son on a breach of contract claim. It claimed that Son undertook an obligation on Mom’s behalf, when he signed the admission agreement, to promptly pursue Medicaid benefits. Son, in response, argued that he never signed the agreement so there was no contractual obligation on his part. The court sided with Nursing Home, finding that an oral contract was created between the two parties and that Son violated it by not conscientiously following through.
A good result for the nursing home, right? Well, not really, when you account for the time and money it took Nursing Home to get the judgment. It then has to collect on that judgment, assuming Son doesn’t appeal the decision, which will cause the matter to drag on even further. And it certainly wasn’t a good result for son, who lost and now is responsible for paying Mom’s bill.
So how could this have turned out better? If Nursing Home had encouraged Son to retain an elder law attorney to represent Mom in the Medicaid application process, it would have received a regular income stream with a timely and correctly filed application. Sure, there is an expense involved in hiring someone. But in the end Nursing Home would have received Medicaid benefits when it should have and Son would not be responsible for paying nursing home. A winning result for all.
For further information and advice in any elder law matter, do not hesitate to contact me at 732-863-9900 Ext. 101 or 105, or fniemann@hnlawfirm.com.