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New York’s problem is likely prohibited here

Wednesday, Jan 28, 2015

* New York Times

Lillian Palermo tried to prepare for the worst possibilities of aging. An insurance executive with a Ph.D. in psychology and a love of ballroom dancing, she arranged for her power of attorney and health care proxy to go to her husband, Dino, eight years her junior, if she became incapacitated. And in her 80s, she did.

Mr. Palermo, who was the lead singer in a Midtown nightclub in the 1960s when her elegant tango first caught his eye, now regularly rolls his wife’s wheelchair to the piano at the Catholic nursing home in Manhattan where she ended up in 2010 as dementia, falls and surgical complications took their toll. He sings her favorite songs, feeds her home-cooked Italian food, and pays a private aide to be there when he cannot.

But one day last summer, after he disputed nursing home bills that had suddenly doubled Mrs. Palermo’s copays, and complained about inexperienced employees who dropped his wife on the floor, Mr. Palermo was shocked to find a six-page legal document waiting on her bed.

It was a guardianship petition filed by the nursing home, Mary Manning Walsh, asking the court to give a stranger full legal power over Mrs. Palermo, now 90, and complete control of her money.

Few people are aware that a nursing home can take such a step. Guardianship cases are difficult to gain access to and poorly tracked by New York State courts; cases are often closed from public view for confidentiality. But the Palermo case is no aberration. Interviews with veterans of the system and a review of guardianship court data conducted by researchers at Hunter College at the request of The New York Times show the practice has become routine, underscoring the growing power nursing homes wield over residents and families amid changes in the financing of long-term care.

Could that happen here?

* I asked the attorney general’s office, whose spokesperson pointed me to this provision of the state’s Probate Act

755 ILCS 5/11a-5) (from Ch. 110 1/2, par. 11a-5)
Sec. 11a-5. Who may act as guardian […]

The court shall not appoint as guardian an agency which is directly providing residential services to the ward.

* The AG’s spokesperson explained that the office doesn’t have staff with much knowledge of this particular issue, but here’s what she wrote in an e-mail…

That language indicates that this should not be allowed to happen in Illinois, but it is possible that courts have allowed these kinds of petitions.

- Posted by Rich Miller        

24 Comments
  1. - Belle - Wednesday, Jan 28, 15 @ 11:08 am:

    Not much of a response to a potentially big issue.


  2. - VanillaMan - Wednesday, Jan 28, 15 @ 11:12 am:

    So do you have more civil rights as a homeless nonagenarian in New York, than as one living in a nursing home? Bloomberg discovered that “saving” the homeless through guardianship to the City wasn’t allowed.

    But this is?


  3. - Carl Nyberg - Wednesday, Jan 28, 15 @ 11:13 am:

    What stops nursing homes from having the cousin’s spouse be guardians of the nursing home residents?

    One should have to petition an objective body and the guardian should be appointed by that objective body. Interested parties should be able to make suggestions. But if a guardianship is required, it should not be possible for a nursing home to get an “ally” to be a guardian.


  4. - Mouthy - Wednesday, Jan 28, 15 @ 11:15 am:

    What a clever way to strip someones wealth from them. I’d drather die then end up in one of those places..


  5. - Rayne of Terror - Wednesday, Jan 28, 15 @ 11:18 am:

    If you read further down the probate act to 755 ILCS 5/11a-18(e) you’ll see that if there is a valid POA in effect then the proposed guardian has to notify the agent and the guardian cannot be given powers that already belong to the agent under the POA. The valid POA preempts the guardianship. If there ends up with a guardianship and a POA, then those people have different roles.


  6. - Anon - Wednesday, Jan 28, 15 @ 11:24 am:

    I am surprised nobody has blamed Rauner for this practice (although Quinn probably would).


  7. - walker - Wednesday, Jan 28, 15 @ 11:28 am:

    Just form a legal entity, separated by a corporate veil from the home itself, to steal the assets from residents, to the benefit of actual owners.

    Since it makes profits in a “free-market”, it’s all good, right?

    And if you get caught, and someone has a problem, push off the legal liability on to some poor incompetent soul, and run away with the money.

    Who’s the “maker” and who’s the “taker” now?


  8. - Rayne of Terror - Wednesday, Jan 28, 15 @ 11:29 am:

    An IL statutory property POA gives the agent the power to stand in the shoes of the principal for the following:

    (a) Real estate transactions.
    (b) Financial institution transactions.
    (c) Stock and bond transactions.
    (d) Tangible personal property transactions.
    (e) Safe deposit box transactions.
    (f) Insurance and annuity transactions.
    (g) Retirement plan transactions.
    (h) Social Security, employment and military service benefits.
    (i) Tax matters.
    (j) Claims and litigation.
    (k) Commodity and option transactions.
    (l) Business operations.
    (m) Borrowing transactions.
    (n) Estate transactions.
    (o) All other property transactions.

    There’s not much room for the potential guardian to squeeze themselves into the financial picture here when there is a valid property POA.


  9. - 47th Ward - Wednesday, Jan 28, 15 @ 12:06 pm:

    “I hope I die before I get old.”


  10. - Wordslinger - Wednesday, Jan 28, 15 @ 12:30 pm:

    Saw this over the weekend. Nasty business.

    Who are these judges that allow this sort of elder abuse?


  11. - Ethanol74 - Wednesday, Jan 28, 15 @ 12:34 pm:

    It’s very common in IL for nursing homes to petition the court to have a guardian appointed: they arguably have a statutory duty to do so. See Nursing Home Care Act 210 ILCS 45/2-202 below. nursing home bound under statute to make sure everyone admitted has a contract, and if person lacks capacity, then nursing home needs someone to act to execute the contract.

    “person may be admitted to a facility before the execution of a contract required by this Section; provided that a petition for guardianship or for modification of guardianship is filed within 15 days of the person’s admission to a facility, and provided further that such a contract is executed within 10 days of the disposition of the petition.”


  12. - Ethanol74 - Wednesday, Jan 28, 15 @ 12:38 pm:

    one other clarifying note: The AG’s reply doesn’t really answer the question: NY isn’t have nursing homes appoint themselves as guardian (which is what is barred under the 755 ILCS 5/11a-5 statute). sounds like they might nominate a friendly party to act, which is its own problem.


  13. - facts are stubborn things - Wednesday, Jan 28, 15 @ 12:52 pm:

    @47th Ward - Wednesday, Jan 28, 15 @ 12:06 pm:

    =“I hope I die before I get old.” =

    Be careful what you ask for. Growing old can be a wonderful thing. Many studies show that for many people their 80’s are some of their happiest years. Health is the key and then comes financial security, and of course family, friends the social side of things. You can gain wonderful perspective on life and find so many joys in old age. Now of course, time is not always kind and we all must eventually fall victim to it.


  14. - Gathersno - Wednesday, Jan 28, 15 @ 1:30 pm:

    =I hope I die before I get old=

    Right on, 47th Ward! I’m 85 and have cancer and these are still the best years of my life.


  15. - 32nd Ward Roscoe Village - Wednesday, Jan 28, 15 @ 1:32 pm:

    Rayne of Terror is correct–the valid POA trumps the guardianship. This was added to the statute to prevent cases where one family member has a POA and then a second family member is not happy about that and files a petition for guardianship. I had that case before the statute was changed, my client being the POA agent who had been taking care of grandmother just fine and her sister being crazy and wanting to rob grandmother blind.

    Also, Section 11a-8 provides, if there is no POA agent, who has priority to be named and the petition has to list those, spouse, adult children, parents, siblings, etc.


  16. - Cheswick - Wednesday, Jan 28, 15 @ 1:32 pm:

    == “I hope I die before I get old.” ==

    Great song!


  17. - Westward - Wednesday, Jan 28, 15 @ 2:07 pm:

    Courts always love to preach the phrase, “what would a reasonable person” do in this situation. Problem is, courts and reasonable don’t always fall hand in hand.


  18. - dupage dan - Wednesday, Jan 28, 15 @ 2:08 pm:

    Rayne of Terror is right. A valid POA trumps a guardianship in Illinois. Absolutely. Whoever files a petition for guardianship must prove the POA is invalid by either challenging the competency of either signatory or prove that the agent is abusing the principal with thru physical abuse, neglect or financial exploitation. And that must be a part of the guardianship action. If the POA is not considered as part of the guardianship action, the POA stands and the guardianship is invalid.

    While nursing homes may, indeed, have to file a petition for guardianship since their resident must either be competent to sign a residential contract, or have a competent representative to do so, paid providers of residential services can NOT be the guardians. This has not prevented the NHs from securing a proxy (sometimes a former employee or a relative of an employee) to act as a guardian. This has occurred with some facilities seeking to avoid scrutiny by gov’t guardian agencies. I have seen examples where one local person is the guardian for a dozen or more NH residents with whom they really have no familial relationship. However, the guardians, in some cases, were former employees. These wards typically have little financial resources so there wasn’t evidence of financial exploitation. It was just a way for the facility to limit exposure to monitoring entities.

    I read further and saw that this is a case where there was a dispute about how much the family owed the NH. While the case ended up with the NH dropping the petition once the dispute was resolved, it sure can cause much pain for the family. I appears to have cost the husband a substantial amount of funds as well.

    I have seen cases where families strip the assets from a relative and then place them in a NH and fail or refuse to assist with applications for public aid benefits because they know IDPA will discover the stripped assets and refuse to approve the Medicaid application. By the time that happens, the NH bills can sometimes rise to 6 figures. That ain’t fair either.


  19. - Rayne of Terror - Wednesday, Jan 28, 15 @ 2:58 pm:

    Folks, this is why having your Power of Attorney paperwork done is super important. Getting your POAs professionally done is chump change compared to a guardianship down the road. Most importantly, you make your own decisions about who you trust to step into your shoes if and when you’ve lost capacity instead of having that decisions imposed on you.


  20. - Rowdy Yates - Wednesday, Jan 28, 15 @ 4:57 pm:

    “New York’s problem is likely prohibited here.”

    Hmmm?- The operative word in the title would seem to be “likely”. That is a little scary if you happen to know of someone who is currently in a nursing home and whose mental faculties are already at the bottom of the hill or are currently on the downhill slide. Yikes.


  21. - Anonymous - Wednesday, Jan 28, 15 @ 5:53 pm:

    Sad and very bad

    No common decency


  22. - RNUG - Wednesday, Jan 28, 15 @ 6:57 pm:

    - Rayne of Terror - @ 2:58 pm:

    Good point. We had durable financial POA’s plus then applicable medical POA’s and directives done by our attorney about 30 years ago. I should probably have them reviewed / updated by the current family attorney.


  23. - Northern Light - Thursday, Jan 29, 15 @ 3:31 am:

    Go to the website National Association Against Guardian Abuse to see what is really happening in Illinois! Its a racket! Nursing homes, attorneys and Public Guardians are complicit in this. Why hasn’t Gov. Rauner removed all of the State’s Public Guardians instead of just some of them? Reform Guardianship in Illinois!


  24. - Northern Light - Thursday, Jan 29, 15 @ 2:29 pm:

    Rayne of Terror and others: Respectfully, you don’t know what you are talking about. Guardianship removes a POA and trumps a valid POA. Have seen it happen in Illinois all the time. Never let anyone you know or love be guardianized……ITS A SCAM to rob seniors!


Sorry, comments for this post are now closed.


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