No matter how diligently you vet a prospective resident, there are going to be times when your facility gets stuck with a resident, or a resident’s family, who doesn’t pay the bill. Most Assisted Living Facilities (ALFs) think that the only recourse is to initiate eviction proceedings. Before COVID, your typical eviction proceeding would drag on for the better part of a year, if not longer. Right now, the New York State moratorium on residential and commercial evictions remains in effect until at least January 15, 2023. Considering the incredible backlog of cases coupled with the anticipated tidal wave of new filings once the moratorium ends, that eviction case that would have normally dragged on for 12 months will now likely take 24 months or more to conclude. And let’s face it, initiating an eviction against your resident is unseemly and could very well be spun against the ALF, creating a public relations nightmare.
Article 81 of the New York Mental Hygiene Law provides that the appointment of a Guardian of the Person and/or Property is warranted if by clear and convincing evidence it is established that a person is likely to suffer harm because he or she is unable to provide for their personal needs and/or property management. Certainly, a resident of an assisted living facility who is in danger of being forcibly evicted and therefore potentially deprived of the room, board and assistance their condition requires qualifies as someone that is likely to suffer harm in the near future. Especially if it is determined that your resident lacks the ability to arrange for their own safe discharge. If a Guardian of the Person is appointed for your resident, the Guardian will have the legal authority to change the resident’s place of abode (perhaps transferring them to an ALP facility or a SNF). A Guardian of the Property, often times the same person or entity as the Guardian of the Person, will have the ability to arrange for payment of the resident’s new place of abode or, in the alternative, if applicable, marshal the resident’s assets and income and redirect those assets toward payment of the back balance and ongoing monthly charges at your community. Keep in mind that an Article 81 Guardianship proceeding, like any civil action, can be settled. So, if the resident and/or the resident’s family voluntarily agrees to leave your community or satisfactory payment arrangements are agreed to, the need for a Guardianship can be resolved, and thus the resident is no longer likely to suffer harm and the Petition for Guardianship can be withdrawn. The best part is, because an Article 81 proceeding is by definition a summary proceeding, the issue of the resident’s continued stay or departure from your ALF will be resolved in a few short weeks versus years. Plus, should it be determined that the resident can no longer afford to reside in your community, you can rest assured that he or she will be discharged to someplace safe under the watchful eye of the Guardianship Courts and not at the hands of uncaring, financially motivated family.
Use the right tool for the job. Don’t waste thousands of dollars on legal fees pursing an eviction for years, while simultaneously suffering through a monthly financial bleed, when you can expedite a safe and effective resolution through the Guardianship Courts.
Ken Kern is a member of Cona Elder Law. Mr. Kern leads the firm’s Health Care Reimbursement and Recovery Department, concentrating his practice in health care facility representation, civil litigation, complex Medicaid eligibility matters, Fair Hearings, Article 78 proceedings, guardianships and resolution of all issues related to resident financial accounts and health care facilities’ bottom line. Mr. Kern handles a wide range of complex matters affecting not only health care facilities but older adults and the disabled as well. He can be reached at 631.390.5000 or visit conaelderlaw.com.
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