Wyoming Supreme Court holds that Agent under Power of Attorney had authority to consent to arbitration in nursing home admission contract

 

It is not uncommon for nursing home admissions contracts to include provisions requiring the resident to consent to binding arbitration of any dispute. In this recent case in Wyoming, the question was the enforceability of an optional arbitration clause. The nursing home admission contract for Aletha Boyd was signed by her Agent under a General Durable Power of Attorney (DPOA) which expressly gave the Agent the actual authority to perform all acts “without limitation” on behalf of the principal (Boyd). In bold print, the contract stated that the resident had the option at that time of whether or not to consent to arbitration. The Agent consented to arbitration at the time of signing. 

Ms. Boyd died within two weeks of admission, allegedly due to negligent nursing care, and her Estate sued the facility, Kindred. Kindred filed a motion to compel arbitration pursuant to the signed admissions contract. The motion was denied by the trial court, but on appeal, the Wyoming Supreme Court reversed and ordered that the case be sent to arbitration. The Court’s rationale was that the authority to consent to arbitration was encompassed within the expressed broad power of the DPOA the arbitration clause was not unconscionable because it was optional, and the fact that the designated arbitrator was no longer in service did not void the contractual provision.  The case is called Kindred Healthcare v. Boyd. 

When selecting a nursing home, the applicant or their duly authorized Agent under POA or legal guardian is often faced with making an urgent decision, reviewing lengthy detailed contracts, and making arrangements for this move under time pressure. Senior care planning requires careful consideration of the rights and obligations of the parties involved, and legal advice is helpful to ensure that the individual and family understand what they will be facing. 

Call us for help  in senior care and estate planning, elder law and nursing home admissions issues …. 732-382-6070

 

Thwarted by HIPPA rules? Persevere.

Protected health information can’t be  disclosed to anyone but the patient or the patient’s authorized recipients.  If you are the court-appointed Guardian of an incapacitated person, or you are a designated Agent under a Health Care Proxy or Health Care Power of Attorney, you may have encountered roadblocks in trying to get access to the records of the person you are acting for.  These protections of confidentiality were always a matter of common law but were explicitly set down in the Health Insurance Protection and Portability Act of 1996, usually called “the HIPPA Law.” The law allows the patient to sign a HIPPA-compliant records release. The law also explicitly states that a Guardian is an authorized recipient, and that the designated Health Care Proxy/ Agent/ Representative is an authorized recipient. Nonetheless, even if you are authorized, you may hit roadblocks getting access to the medical records of the incapacitated person.

I encountered this recently and I have to say it was just maddening. I have been  the Legal Guardian [of Person and Property] for a certain individual for about 15 years. Two months ago he had a serious injury and was admitted to the hospital. The patient has been in that hospital before and I thought that my guardianship record had been placed on the chart. Arriving at the hospital on the weekend without my guardianship certificate, I discovered that they could not check the prior charts, and of course would give me no information. At 7:30 Monday morning, I faxed up the guardianship certificate with a request that the nurse or doctor call me. By mid-day  I had heard nothing and when I called in I was told that those faxes go to a central fax room and don’t get delivered right away [though I had faxed it to the direct line at the nurses’ station]. This whole process had to be repeated and finally a day later I was able to have a telephone meeting with the treatment team. Then he was back in the hospital, and on arrival at the hospital a few mornings later the floor nurse wouldn’t allow me to review the patient’s chart, citing HIPPA, and I had to again provide the certificate because they still hadn’t actually entered this critical information into the patient’s chart.   Even with that it took several conversations until the nurse was persuaded that I had authority to not only see the chart but to make the decisions and sign the Consents to Treatment. When the patient was discharged to an outside  subacute facility, the hospital didn’t provide this guardianship information with the transfer paperwork and I had to start it all over again. When he went back to the hospital, a new chart was being created and again, they found no record of my guardian status. Start again.

The usual Health Care Power of Attorney appoints a decision-maker to make the medical decisions if the doctors determine that the patient is incapable of giving informed consent. A good document will also say that its effectiveness is not diminished by the mere passage of time, and it will also grant HIPPA access to information. However, if the patient isn’t incapacitated, the patient may still have to sign a new HIPPA authorization in order for the treatment team to be willing to share information with you. That wouldn’t install the person as surrogate decision-maker at that point, but it would give them access to necessary information in order to be able to assist the patient to make decisions about treatment. Here is a downloadable PDF of a HIPPA-compliant form which we provide to all of our estate planning clients. HIPAA FORM.

The moral of this story is: (1) always bring the original guardianship certificate or health care power of attorney to the health care facility with you, (2) get an updated guardianship certificate one a year so that it is reasonably current; (3) if you are the health care proxy but your person isn’t mentally incapacitated, ask him or her to sign a medical release authorization and place it in the chart so that you can have access to information.

Call us for legal advice concerning the appointment of health care representatives and functioning as a guardian or power of attorney ….. 732-382-6070

Court limits ability of Adult Protective Services to enter a home without court order

In a recent decision involving a lawsuit against the Adult Protective Services (APS)  office of the Bergen County Board of Social Services, the Appellate Division held that without a court order or warrant for entry, or “exigent circumstances,” an APS employee could not enter the home of the elderly or disabled person who was allegedly subject to abuse or exploitation if consent to entry was not granted. Despite the broad authority granted to APS to investigate cases of alleged abuse or neglect of disabled and cognitively impaired adults in the community, the Court held that constitutional Fourth Amendment protections apply to these investigations.

The case arose out of an intrafamily dispute concerning two elderly brothers (Emil and Fred) who were business partners. As the business was being dissolved, the attorney-in-fact for Fred stepped in to act on his behalf with respect to the business. Emil’s family member then filed a report of exploitation  with APS, who commenced an investigation and came into the home on five occasions over objections by Fred and his Agent under Power of Attorney.  Finding Fred to be mentally incapacitated at that point, APS initiated guardianship proceedings [which can be both intrusive and expensive]. Eventually, Fred sued Emil and his family for damages for invasion of privacy and other harm, and sued APS under 42 USC 1983 for damages for violation of his 4th amendment constitutional rights. The trial court dismissed all counts, but the Appellate Division reinstated the claim against APS. The case is  Rizzo v. Bergen County Bd.  of Social Services, N.J. Super. App. Div. (per curiam) (37 pp.). As with all “unpublished” court decisions, the decision is non-precedential and is not binding on other courts.

The New Jersey Adult Protective Services Statute authorizes the agencies to investigate cases of alleged abuse, neglect or exploitation, including self-neglect, of individuals over age 18 who reside in  the community, are physically or mentally disabled and have cognitive impairments that adversely impact their ability to live safely and decisions to protect their interests. Complaints are kept confidential and investigation files are confidential unless court proceedings are initiated. The APS agency has broad authority to initiate a court petition for protective proceedings to prevent, mitigate or remedy clear and imminent harm. A person who makes a good faith complaint may enjoy a  “qualified immunity” against suit for damages.

The 4th amendment to the US Constitution says that: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The NJ counterpart is in Article One, paragraph 7, and says: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.

In this case, the Court found that exigent circumstances didn’t exist that could have authorized the warrantless entry and search. Since  there was no consent, no court order and no emergent circumstances, the warrantless entry violated Fred’s protected constitutional rights, and the lawsuit for damages could proceed under “Section 1983.”

Call us about legal issues involving guardianship and power of attorney …. 732-382-6070

Why would an 18-year old need a Power of Attorney or a Will?

Powers of attorney are for old people.” “I don’t need a Will, I don’t own anything!” Truth be told, signing a basic set of ‘estate plan documents” at age 18 can prevent expensive legal problems later. It’s like fire insurance — you get it, but hope you don’t need to use it. I have been in court on so many occasions when an expensive guardianship proceeding was in progress because a young person had had a traumatic medical catastrophe or accident or brain injury but was over 18, had never signed a financial or medical power of attorney,  and no one could lawfully make decisions for them. Lawsuits couldn’t be filed or defended; settlements couldn’t be handled; bank accounts couldn’t be accessed; checks couldn’t be written; medical decisions were held up; bills couldn’t be paid.

What if there is no Last Will and testament? There, too, a person needs a Will so that someone can be appointed as Executor. It could happen that after a death, a lawsuit needs to be filed or other legal problems need to be straightened out. The Will designates the Executor, along with specifying who will receive the assets later. If there is no Will and no Executor, someone must apply at the County Surrogate  for appointment as  administrator, and others may be equally entitled to that appointment. This can cause substantial delays and costs to the estate.

As my children turned eighteen, they signed their basic estate plan. We called it insurance. As your children are becoming adults, consider helping them to make these arrangements also. The result can be peace of mind for everyone involved.

Call us for life cycle planning for young adults ……… 732-382-6070

“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