Adult children often ask, do I have to pay for my parent’s care? That depends. If you have taken control of your parent’s assets and income, absent a provision in a durable power of attorney allowing you to gift your parent’s funds to yourself, you are generally required to use your parent’s money to pay for their care. But what if your parent’s funds are already spent down and beyond your reach? A recent published New York case considered this question and took an interesting and pro-child approach to the subject.
In Wedgewood Care Center, Inc., Etc. v. Kravitz, 2021 N.Y. Slip Op. 04731 (N.Y. App.Div., 2nd Dept., August 18, 2021), the New York Supreme Court Appellate Division overturned an award for a for profit nursing home, which sued the son of its former resident. The nursing home wanted to hold the son liable for his mother’s unpaid nursing home bill for the sum of approximately $49,000. An irrevocable burial trust was funded with some of the mother’s funds. The nursing home argued (among other points) that the resident’s son, who was named as her agent under her durable power of attorney, violated his mother’s nursing home admissions agreement by failing to use all of his mother’s money to pay for her care and by not getting his mother approved for Medicaid benefits quickly enough.
In the trial court, the resident’s son argued that he could not be held liable for the cost of his mother’s care, as this would violate the federal Nursing Home Reform Act. The nursing home focused on the admissions agreement, which required the son pay his mother’s nursing home bills from the assets and income of his mother within his control if he could do so without incurring any personal financial liability. The trial judge ruled for the nursing home.
On appeal, the appellate court concluded that the funds in the irrevocable burial trust were not available to the son to pay for his mother’s care because the son was unable to withdraw this money and apply the funds to pay for his mother’s care. With respect to the timeliness of the Medicaid award for the mother, the appeals court noted that the nursing home failed to identify any specific document that the son should have provided to the Medicaid office but failed to do so. The matter was remanded for further proceedings and should not be interpreted as a “get out of jail free” card for adult children who do not cooperate fully in the parent’s Medicaid application process.
The bottom line is that a seasoned elder law attorney can help you understand and carry out your duties to assist in your parent’s Medicaid spend down and application and that your obligations may be more complicated than they seem at first blush. When in doubt, it is a good idea to consult an elder law attorney to explain the rights, duties and obligations incumbent upon you and your parent under a long-term care admissions agreement, the federal Nursing Home Reform Act and state law.