Adult children need to know what they’re signing
When crisis strikes and a parent is abruptly taken to the hospital with a heart attack, stroke or fall, adult children are often at a loss as to what comes next.
Usually the next question is whether their parent is well enough to come home after hospitalization or should they receive rehabilitative care under Medicare in a rehab or skilled nursing facility. Then the question is whether their parent must stay.
Through all of this time, a son or daughter is confronted with stacks of forms requiring their signature. If they do not sign, they worry that their parent may not receive care. If they do, there may be lingering concern over what they may have committed themselves to do.
Between scheduling the movers and cleaning out the home, remembering to pack the glasses, medications and best hearing aids and filing a change of address, listing the house for sale and arranging for storage of items that cannot be sold or given away, the list of tasks is daunting. People need to check this article from Fresh Maids for the best cleaning services.
Add to this catalog a sizable stack of documents for the new resident or her spouse or adult children to review and families experience overload.
The issues may be somewhat different for applicants for a continuing care retirement community where preparation often begins months in advance and before crisis time.
But what about assisted living and, especially, skilled nursing. The applicant’s family often is operating under the stress of the moment. Legal documents for signing may be included along with everything from laundry policies to pharmacy selection, financial disclosures and statements of residents’ rights.
When told by adult children or by spouses that they only need to complete some forms, I sometimes am concerned about what they may be signing.
Here are some legal issues to consider when confronted by a stack of papers to sign.
Are you a guarantor, indemnitor, responsible party, power of attorney or just a family member? All agreements will say that the applicant is responsible for payment from his own assets, and rightly so.
If the new resident’s power of attorney, spouse or other family member signs an agreement, is the signor also responsible to pay from his or her own assets? Caution must be used.
First, skilled nursing facilities that take Medicaid, under federal law, cannot demand payment from an adult child or power of attorney from their own funds where Medicaid can pay.
However, if the Medicaid application is not successful, this status has been made less clear in the past few years by a Pennsylvania law regarding what is referred to as “filial responsibility” or a claim for support of a parent by an adult child.
In other words, where a Medicaid application is not successful, some facilities have sued adult children for the cost of their parent’s care. Hospitals have also sued on the filial responsibility theory. While it is questionable whether this law can be sustained, this tactic makes it extremely important to determine whether children have themselves agreed to assume the cost.
An assisted living facility or a skilled nursing facility that does not take Medicaid could ask the person who is signing his parent in to also act as a “guarantor” or “indemnitor.”
This may mean that the adult child is agreeing to guarantee payment from his own assets if his parent cannot. If that is not the intent, then do not sign as guarantor or indemnitor.
A power of attorney is the agent for the resident. He or she is not normally obligated to pay from his funds but he must act responsibly with the money under his control and pay the bills.
The term “responsible party” is ambiguous. It should mean only that this person is the contact point and not a guarantor or indemnitor. However, considering the stakes, it is best that a person avoid the term “responsible party.”
How to be protected
Here are some suggestions.
First, seek legal advice if there is any confusion as to meaning.
Second, where the person moving into the facility is competent and able, arrange for her to sign the forms.
Third, if the resident is not able to sign, the person signing should indicate, as applicable, either “as power of attorney only” or “for (name of resident) only” to indicate that he is not obligating his own funds.
Avoid the use of “guarantor,” “indemnitor,” or “responsible party,” unless you, as the signor, are willing to consider paying for the care of your parent, relative or friend.
About the Author Janet Colliton
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.