Tips on Residents’ Rights in Nursing Homes: Individualized Plan of Care Required

Once a person has moved into a nursing home, they are situated in a health care facility and receiving patient care, but they are also living there, and are therefore referred to as a “resident” rather than as a “patient.” The critical laws governing Residents’ Rights are the federal Nursing Home Reform Act, 42 USCS ‘ 1395i-3(b) and 42 CFR ‘ 483.10, and its state counterpart statute (N.J.S.A. 30:13-1 et seq.) and regulations.  It is plain that some of the rights contained in the law reflect privacy rights that pertain to a citizen no matter where he or she lives.

A nursing home is required to provide services for each resident in manner designed to preserve the resident’s dignity and to attain and maintain highest practicable physical, mental and psycho-social well-being of the individual resident based on his or her individual needs, and must abide by the Nursing Home Resident’s Rights Act, 42 USC 1395i-3(b), (c), 1396r; 42 CFR  483.10 et. seq., 483.12, 13, 15; 4.25, 483.30B; 483.60, 483.65, and 483.70; NJS 30:13-1 et. seq.; NJAC 8:39-4.1. For case discussions, see; In re Keri, (NJ Supreme Court. 2004); Profeta v. Dover Christian Nursing Home, (N.J. App. Div. 1983).

The federal regulations implementing the Nursing Home Reform Act, 42 CFR ‘ 483.12, requires the facility to develop an individualized plan of care that will maximize the well-being of the individual resident. Services must be provided without discrimination based on payor source. This means that the same level of service must be provided to the private pay resident as to the Medicaid recipient. Input from the resident, resident’s next of kin or fiduciary, and the attending physician and registered professional nurse responsible for the resident’s care should be obtained whenever possible. 42 USC 1395i-3(b)(2), 42 USC1396r(b)(2). An initial plan of care is developed and is then reviewed at regular intervals.

The resident has an enforceable right to have a specific level of care to maintain or assist the resident to perform daily living activities which include but are not limited to maintaining nutrition and hydration and avoiding accidents.  This means that if the resident cannot feed herself, the facility must include manual feeding in the personal plan of care. The facility cannot maintain that it’s too time-consuming to do so. Similarly, if the resident tends to try to get out of bed or walk on her own, the facility has to include safety arrangements such as higher supervision within her plan of care. The facility cannot insist that the family provide extra personal aides to deliver services that are needed to protect these residents’ rights.

 

“Can you just do a quit claim deed?”

“Can you just do a quitclaim deed?” is a common question brought to our office. Sometimes it’s a question by a child, other times by the spouse of the senior citizen homeowner. There’s a concern about “saving the house” when nursing home care is looming on the horizon. Leaving aside the complex question of whether such a transfer will disqualify the senior from receiving Medicaid benefits to pay for their nursing home care, there is still the question of who has the authority to sign the Deed. The fact that it’s a “quitclaim” type deed — as opposed to a Deed that is prepared after a thorough title search with a guarantee that the title is clear — doesn’t change the underlying fundamental of who can sign the Deed.

Of course, the Deed has to be signed by the owner of the property. If that person has advanced dementia and no longer has capacity to understand the nature and purpose of signing a Deed — even if s/he can pick up the pen and sign his or her name — such a deed might be void or voidable on the grounds of incapacity. Cases dealing with that situation go way back and New Jersey and other states have had these cases for at least a hundred years.

Is there someone who has legal authority to sign a Deed making a gift of the property? Many powers of attorney (POA’s) are limited. Some are limited to banking transactions. I had a case in which the POA did not include any real estate powers. Some POAs have broad powers but do not authorize the agent to make gifts or transfer assets. In still other cases, there is no power of attorney at all. Again, the person with dementia would need to understand the nature and purpose and effect of signing a (new) power of attorney; they have to be able to interact with the attorney who is trying to prepare legal documents for him or her.

A guardianship may be required, which is a process that can take several months even if  no one is contesting it. The Courts in New Jersey do have the power to authorize a Guardian to sign a Deed to transfer ownership of the ward’s property, provided that the  five-part “test” of the case of In re Keri is satisfied so that the best interests of the ward are protected.

So yes, we can write a “quit claim deed.” The question is — can it be signed? if so, by whom? And is it smart to do so?

Call for advice before embarking on senior care asset protection planning … 732-382-6070

There are some limits on what Guardians in NJ can do without court approval

A Legal Guardian is a person appointed by a court to be the decision-maker for a person who is incapacitated as defined by law, and unable to manage all or some of his/her affairs. The court rules provide the complex procedures (N.J. R. 4:86-1 et seq), but the powers and duties of the guardian, as well as further details about how the court has to handle the case, are found in the statutes, such as N.J.S.A. 3B:12-48, 12-49 and  12-50.

The Guardian “steps into the shoes” of the “ward” (incapacitated person), which means that unless the Judgment of Incapacity and Letters of Guardianship issued by the court have specific limitations in them, the Guardian of the Estate (Property) may take care of banking, contracts, insurance claims, applications for benefits and insurances, securities transactions, hiring and firing of persons to work for the ward, and so on. The Guardian of the Person may decide where the ward will live, obtain and consent to any kind of medical treatment, and may decline consent to some medical treatment, without obtaining further court approval. However, certain transactions do require court approval.

For example, the Guardian may not make gifts to other people with the ward’s assets or make changes to the form of ownership or titling of a ward’s assets without court permission. See N.J.S.A. 3B:12-49 (Court can authorize Guardian to do so); 3B:12-58 (gifts) and 3B:12-50 and 3B:12-62. Several cases in New Jersey have confirmed the authority of the Court to allows guardians to transfer assets: In re Trott (Estate Tax reduction planning – 1972); Matter of Manuel Labis (Medicaid planning transfers to spouse – 1998), and In re Keri ( Medicaid planning, transfers to adult children – NJ Supreme Court, 2004). Based on these precedents,  we have also obtained court authorization to transfer assets to disabled children or to trusts for family members. The plaintiff needs to include this request in the initial Complaint for Guardianship, or the Guardian will later need to file a Verified Complaint and Order to Show Cause, serve it on all the interested parties, and go back to court.

Also, the ward’s real estate may not be sold or mortgaged without court authorization. Again, a Verified Complaint is required, with service on all interested parties.The Court rules and specific procedures are at N.J. R. 4:94-1 to 7. The Court may authorize a sale if satisfied that it is in the ward’s best interest.See N.J.S.A. 3B:12-49. The guardian needs to provide the Court with proof of value and in some cases the actual proposed contract for approval.

I must say, we  have repeatedly encountered situations over the years in which guardians thought they could “make annual exclusion gifts” or sign contracts for sale of property without going back to court. Most situations have legal remedies, but complications can ensue if the guardian doesn’t have authorization, not the least of which is a cloud on the title of the property.

Call us if you are filing for guardianship or need  post-judgment court orders … 732-382-6070