San Antonio Express-News
December 20, 2005

Liability for Nursing Home Bill

copyright 2005, Paul Premack

The legal documents your refer to are necessary so your son has authority to act on your behalf. If you become disabled, whether you live at home or in a nursing home, you may not be able to take care of your own business or make your own medical decisions. The issues will not go away if they are ignored; instead, things will just get worse for lack of attention.

A recent case decided by the 11^th Court of Appeals in Eastland tells a story that illustrates the possible complexities. In Huse v. Texas, a mother in your situation did become very ill and found herself in a nursing home. Her son promised to take care of things for her. She had little income and few assets, so he filed an application to get Medicaid’s help with her monthly nursing home bill.

Her son had some difficulty with follow through. It took many months before mother was approved for Medicaid, and then only because the nursing home administrator provided information the son failed to provide. Even after mom was approved for benefits, Medicaid only paid the part of her bill her social security would not cover.

The nursing home asked her son to pay the rest of the bill, and he agreed to take care of it. That was the moment things went wrong. He bounced a check, made more promises, and never actually paid the nursing home. The administrator eventually pressed charges against the son for "theft of services." He was arrested, tried and convicted to two years in the state jail. He appealed his conviction on several technical issues, but the court decided he had induced the nursing home to provide continued services by tendering his check.

The lessons of the Huse case are to keep responsibility where it belongs, and to keep responsibility with someone who is capable. Huse’s mistake was to promise he would pay the bill when he did not owe the bill and did not receive the services. His promise was a contract, and his deception was a criminal act. His mother’s mistake was in failing to create a power of attorney so that she could retain legal responsibility thus allowing her son’s liability.

Had she created a power of attorney naming him as agent, he could have told the nursing home his mother would pay the bill through him, acting as her agent. The contract for services would have stayed with her, not him. Failure to pay the bill would have resulted in eviction, in an accusation he was exploiting his mother or breaching his fiduciary duties by keeping her monthly income. Jail time was far less likely. Further, had she known her son’s propensity toward irresponsibility, she could have appointed someone more capable to handle her finances – another family member or even a bank.

The future holds many unknowns that cannot be anticipated. Signing a durable power of attorney and a medical power of attorney naming an agent to take care of you is a wise act, and you should not put it off. Those legal documents can protect you by assuring your business is conducted responsibly by someone you judge to be honest.