Imagine a nursing home resident with dementia falls and needs surgery, but there is no one to approve the care plan or foot the resulting bill, putting the nursing home in a bind. The responsibility usually falls upon family members, but given the increasing trend of an aging population without kin, this situation is becoming more commonplace – and can expose nursing home operators to expensive litigation or costly court visits.
To prevent this scenario from becoming a legal disaster for nursing homes, some common sense strategies can and should be put in place sooner rather than later.
That’s because “solo agers,” or residents with no close family or other support network, or whose support network dwindles while they age in a facility, are going to form a bigger chunk of the aging population in the future. And both legal experts and advocates for the elderly say nursing homes and their residents should be prepared.
American baby boomers are aging, and about 15 million, or nearly 1 in 6 adults over the age of 55 are childless, according to the latest U.S. Census data from 2018, released in 2021. Those estranged from their families add more people to the ranks of solo agers.
“The baby boomer generation is going to have something around 16% to 17%, on average, of solo agers in the population and that’s just the ones who are childless,” Sara Geber, author of Essential Retirement Planning for Solo Agers, told Skilled Nursing News.
The rising trend of solo agers
The rising tide of solo agers means that both residents and nursing homes must be ready to put new protocols in place.
Proactive measures to deal with the situation include making sure admitted residents have advanced directives. And beyond that, state laws can be updated to require that a patient representative be a part of a health care team for residents who lack the capacity to make important decisions.
Most states currently lack such a patient representation requirement, but states like California have recently begun implementing this rule, and legal experts said more states will need to get on board. And if not, nursing homes, who likely end up paying a lot in probate court costs or court battles, will also feel a financial sting.
“Unless there is a state system to appoint a decision maker, then the facility and its clinicians are in a really tough place to be able to get informed consent for those interventions that require it,” said Mark Reagan, attorney at Hooper, Lundy & Bookman, P.C., whose law practice provides representation to health care providers and suppliers. “It gets really, really messy when somebody loses capacity and doesn’t have a decision maker sometimes.”
For that reason, Reagan backed the modification of a California statute that assigns a patient representative for residents who lack guardianship or power of attorney before facing mental incapacitation through cognitive decline or otherwise.
For Geber and her husband, a childless couple in their early 70s, it became evident that a contingency plan was needed. Geber’s plan involved finding not just one but several trusted younger people to become their power of attorney (POA), as well as the couple choosing to live in a community that enabled strong social connections.
Geber now advises clients on how to create and update these plans before it’s too late to make health care decisions on their own.
“We have named a cousin, a son of a friend, and a nephew in our POAs and advance directives. However, we are still interviewing licensed professional fiduciaries, and we may put that person front and center on our estate docs,” Geber said.
Reagan also encourages such advanced directives to be part of the admitting protocol at nursing homes.
“It should be on the very forefront of the minds of every admissions director for every skilled nursing facility across the nation to know that regardless of what may happen with this particular patient in their condition, that there’s going to be a roadmap for them to be able to make good decisions,” Reagan said.
Advanced directives for all residents
Without advanced directives, nursing homes may be looking at crisis management if they don’t have their own contingency plans to address the rising tide of solo agers, several legal experts told Skilled Nursing News.
“Just with the demographics and the way society is happening right now, there are going to be a lot of people who are just on their own, and, by default, relegated to [the nursing home’s] care and responsibility. The only thing is, [nursing homes] don’t have a lot of legal authority to fill all those responsibilities,” said Jason Lundy, partner in Ice Miller’s health care practice.
Many such residents may have been admitted years ago into long-term care when the solo agers trend wasn’t on the minds of nursing home operators, which means there are possibly few protocols in place at nursing homes currently, he said. Nursing homes should modify their admitting protocol so that all residents, while they have their cognition intact, can fill out paperwork assigning responsibilities for care to the nursing home, Lundy said.
Alan Horowitz, partner at Arnall Golden Gregory LLP, who works with skilled nursing facilities, home health agencies, and hospice companies, said some necessary first steps can prevent a lot of problems later.
“At the time of admission to a SNF, the facility should document who the resident’s power of attorney, legal guardian, or ‘responsible party’ is along with their contact information,” Horowitz said.
Also, he said, “If the resident is a ‘solo ager,’ the facility should ask the resident, if competent, who he or she would like to make health care decisions for them.”
And last but not least, Horowitz advises to always check whether a living will or advanced directive exists that names a surrogate decision maker.
“The most challenging situation is where a solo ager has no advance directive or living will and lacks the decision-making capacity,” Horowitz said, adding that in such cases, a court-appointed legal guardian will need to be sought for specific medical decisions in most states.
Payment issues, costly legal fees, fines and lost revenue
When a resident lacks an advanced directive, the nursing home facility would have to go to probate court and get a judge’s approval on an attending physician’s recommendations for a care plan. Each time there is a change in a prescription drug, or a surgery or other types of interventions requiring consent, the nursing home will need this court approval. And this back and forth between the nursing home can be expensive, each visit to probate court carrying a bill of $5,000 to $10,000 to receive informed consent for the patient in states like California, Reagan said.
Moreover, nursing homes can also be slapped with fines if they fail to re-admit a resident after a hospital stay, not to mention the possibility of litigation from the proverbial long lost nephew, he said.
All in all, these factors prevent nursing homes from admitting patients, resulting in lost revenue.
Reagan estimates that in California alone, there are at least 10,000 cases of solo agers who had been admitted without advanced directives.
Recently, Reagan and his law firm assisted health care advocacy groups to update a California statute that, effective January 27, 2023, will require a patient representative to be part of the health care decision-making team for residents of skilled nursing and intermediate care facilities. More importantly, it will allow the state to elect a patient representative if none is assigned. In the past, patient representatives weren’t part of the requirement, and Reagan believes that this new addition to the law will reduce litigation and fines for nursing homes in the long run.
He describes this update as creating “a bridge to informed consent.”
“There is less deterrence for facilities to take folks that don’t have decision makers other than their own, because there is an alternative platform to use,” he said.
This new program within the California Department of Aging provides trained representatives for specified long-term care residents who may need medical treatment but lack the capacity to make health care decisions and have no legal surrogate authorized to make decisions on their behalf. This office assigns a patient representative, chosen from among public patient representatives who are trained to work with the interdisciplinary team to review whatever intervention is being explored.
Nursing homes should have a policy or a process in place for dealing with the solo agers because, after all, who will pay for all of the services, said Matthew Murer, department chair for the health care practice of law firm Polsinelli, and partner and chair of Polsinelli Healthcare Solutions where he consults on regulatory and legislative issues that directly affect the industry.
“How do we address the financial issue? How do we address the level of care issue? How do we get them integrated? How are we going to handle incidents as they come along? And then what’s our protocol for dealing with a discharge?” are some questions Murer said that nursing homes should incorporate into a plan when they admit a resident into a facility. Common worst-case scenarios include belligerent residents or those lacking financial support.
As it is, the Medicaid approval process can be daunting, even for family members, and so when it comes to guardianships, access to financial documentation can complicate the process even more, he said.
Rules vary state by state
Just as many states lack the requirement to have a patient representative as a part of every nursing home resident’s team, other states are more stringent in their oversight of nursing homes and discharge of residents, which can complicate legal matters.
When disputes related to discharge to hospitals, for example, arise, the nursing home has to clear matters with a local ombudsman in many states.
Also, certain states have discharge rules that also require the skilled nursing facility to identify the next steps for residents being released, including naming the new community prior to release, Murer said.
Given this, Murer advises: “Have a playbook in place for reaching out to the office of the state guardian to get a guardian appointed.”
Murer said this is especially important because predetermined partners can smooth the process of discharge and prevent delays.
Horowitz agrees, saying, “For those residents who have no family member or ‘responsible party,’ I suggest that facilities have a working relationship with the ombudsman in that state and also be prepared to have a court appointed legal guardian for a solo ager who lacks [decision making capacity].”
Family doesn’t alway mean smooth sailing
“Families can be a blessing or a curse,” Murer said. And just because no family was involved at the time of a resident’s stay doesn’t mean that family members won’t become involved in the future. Suddenly, a few years after a nursing home stay, a nephew of the former resident appears disputing the treatment or care at the facility. And for that, Murer advises that nursing homes keep detailed notes on all patients to avoid future litigation.
And just so that it’s easy for all parties involved, especially the resident, Geber recommends that solo agers seek the right person to act as a power of attorney early with the anticipation that cognitive decline is a possibility. Gathering all the paperwork at this stage helps everyone, the resident and nursing home.
Geber also suggests finding opportunities to foster relationships with faith-based organizations and other social groups centered on common interests
Meanwhile, Murer said his advice to nursing homes dealing with solo agers is tried and true:
“It’s the same advice that I give to my clients about dealing with families, which is, be really proactive. Have somebody who’s paying attention to this because these situations never get better with time. It’s not like somebody’s gonna magically appear.”
Companies featured in this article:
Arnall Golden Gregory, California Department of Aging, Hooper Lundy & Bookman, Ice Miller, Polsinelli
