State Senator Joseph F. Vitale (D – Middlesex) and Sen. Robert W. Singer (R-Ocean), who are strong advocates for New Jersey’s senior citizens, have co-sponsored a new bill to address problems that keep occurring in certain of New Jersey’s nursing homes. In our elder law practice, we have encountered situations in which financial officers of nursing home corporations persuaded a resident to appoint them as Agent under Power of Attorney, even providing the document without benefit of counsel. They gained access to a resident’s bank account and withdrew the client’s funds without authorization or knowledge. They emptied residents’ bank accounts without regard to whether there were outstanding checks that were pending payment. In some circumstances, there were co-owners on the accounts, and these practices created hardships for them as well. Also, we’ve received numerous reports that facility staff pressured residents to hire the Medicaid application preparer who was either on staff at, or affiliated with, the facility itself, without informing the resident that they have the right to hire their own attorney for advice about Medicaid eligibility. These and other abuses are the target for the proposed bills.
S-3606 The bills, S-3606 in the Senate and A-5194 in the Assembly, broadly prohibit the personnel of nursing homes and other long-term care facilities — owners, operators, managers, employees — “or other person who benefits financially from a long-term care facility” from managing “the affairs of a [nursing home resident] except pursuant to an order of the Superior Court appointing that person guardian of the principal.” Even more specifically, the bills prohibit such individuals from serving “as an attorney-in-fact for a [resident]. Any power of attorney instrument executed by a [resident] naming [such an individual] shall be deemed invalid.”
In addition, the bills seek to curtail abuses in the admissions process. Clients have been reporting that admissions applications include clauses such as an obligation to allow the facility to prepare and file a Medicaid application for the client, or an obligation to allow the facility to have access to the resident’s financial history or current accounts.
Admission Agreements often have illegal provisions buried in the fine print. Under Section 3 of the bills, within four months of enactment, a standardized admissions agreement is to be developed by the NJ Department of Health, and every facility will have to utilize that agreement without modifications. Any arbitration agreement must be a separate document, with a large-type disclosure that signing it is optional.
Also, facilities will be required to give a Notice to the resident that says, in capital letters, “YOU HAVE THE OPTION TO HIRE AN ATTORNEY TO ASSIST WITH APPLYING FOR MEDICAL ASSISTANCE LONG-TERM CARE BENEFITS…” and the Notice must provide specific disclosure of the risks of hiring a non-attorney application preparer. An Acknowledgment of Receipt of the Notice must be signed and kept in the facility records. The facilities will have to post that Notice in a prominent public place near the entrance. A non-attorney preparer must “disclose any financial relationship between the application assistance provider and any long-term care facility, including financial relationships with any parent companies or subsidiaries of the long-term care facility,” and must again advise the individual of their right to hire an attorney for advice.
If these issues are important to you. contact your Legislators and voice your opinion.
Call us for advice with elder care problems like these …….. 732-382-6070