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New Hampshire’s Senate Bill 138 Authorizes Nursing Home Facilities and Assisted Living Facilities to Sue Families for Payment of Nursing home and Assisted Living Costs

On Behalf of | Feb 16, 2013 | Wills, Trusts, Estate Planning and Administration

The New Hampshire Senate is considering a bill, SB 138, which would allow assisted living and nursing home facilities in the state to force family members of the nursing home resident receiving care to pay for the costs of the nursing home or assisted living facility. The bill applies to any father, mother, stepfather, stepmother, son, daughter, husband or wife of the resident who received ANY gift from the resident within the last five years. It also applies to any of those family members who is serving as agent under a power of attorney or guardian for the resident who is found to have failed to “promptly complete and fully prosecute an application” for coverage from Medicaid or any other support program or insurance.

Once it has been established that a family member can be forced to pay for a loved one’s care, the next step is to determine how much the family member can be forced to pay each month. According to the bill, the nursing home or assisted living facility may look at the family member’s weekly income and other resources and determine if those are “more than sufficient to provide a reasonable subsistence compatible with decency and health.” According to Miriam-Webster’s online dictionary, the definition of subsistence is “the minimum (as of food and shelter) necessary to support life.” The bill does limit the amount a nursing facility can collect to the applicable Medicaid rate for the facility, but this is not very comforting where the average Medicaid rate for facilities in the state runs between $3,000 and $6,000 per month.

As an example of how this bill could work, a mother might give a daughter $100 for her birthday. If that mother entered a nursing home within five years of making that gift, SB 138 could be interpreted by a judge to mean that the nursing facility could sue the daughter and potentially force her to pay thousands of dollars per month for her mother’s care. According to the language of SB 138, it would not matter if the daughter had a mortgage and a car payment or other debts of her own to pay. The nursing home would simply have to prove that the daughter earned or had in savings more than was necessary to keep a roof over her head (not necessarily pay her existing bills) and food on her table, and could force her to turn the rest of her income or savings over to the nursing home.

Local nursing homes have already begun to sue family members to force those family members to pay for a loved one’s nursing home care. The family members are then forced to either go into Court unrepresented or to hire an attorney to fight the nursing home on their behalf. Under current law, the family member may often be able to successfully fight the lawsuit and avoid having to pay for a loved one’s nursing home. However, if this bill were to pass, that family member would have little chance of avoiding having to pay for a loved one’s care, even if it meant that that family member could no longer pay his or her own bills.

Elizabeth Lorsbach is an associate at Hamblett & Kerrigan, PA who concentrates her practice on trust and estate administration, estate planning, taxation law and business planning. She also has a special interest in the fields of elder law, special needs trust planning and Medicaid planning, and currently serves as treasurer of the New Hampshire chapter of the National Academy of Elder Law attorneys. Attorney Lorsbach is licensed and practices in New Hampshire. Attorney Lorsbach can be reached at [email protected].