Caring for an aging parent can be very stressful, especially when you and your siblings don’t see eye-to-eye. Unfortunately, conflict over parent care is very common — 69% of people who’ve taken care of an aging parent say they fought with a sibling over that care. And sadly, 18% have even lost relationships with their siblings thanks to caregiving conflicts.
Let’s say Kim’s siblings have managed their father Dan’s care for about 15 years, but they never involved Kim. In fact, they actively prevented her from weighing in. Now Kim’s dad is 94, his money is gone, and her siblings have put him in a nursing home with a $7,500 per month price tag.
Unfortunately, the siblings can’t pay, so they’ve turned to Kim and asked her to foot the bill since she has a good job. But since Kim had no input into the facility or the decisions that got the family to this point, she’s not sure where to go from here.
The good news is experts have some advice for her.
Kim needs to ask some tough questions
Kim definitely shouldn’t just pay for Dan’s care. Instead, she should do a few things first.
“I’d be asking some questions before writing a check,” Jennifer Szakaly, founder of Caregiving Corner, told Moneywise. “What exactly are you paying for? Who is making the decisions? What does Dad want? And does someone have legal authority to make financial or medical decisions on his behalf?”
If possible, Kim should talk with Dan directly about his preferences. “As long as a parent has the capacity to make their own care decisions, they should remain involved in making them,” Dr. Lauren Grawert, a clinical advisor at Retreat of Boston, told Moneywise.
Roger Diefendorf, an attorney at Forum & Lex, P.C., agrees. “If your father is able to participate, have him participate,” Diefendorf told Moneywise. “When I have acted as a mediator, and the parent has been involved, the siblings usually cease fighting about their parents and start collaborating.”
If Dan lacks mental capacity, Diefendorf said Kim should find out who’s in charge at this point. “You’ll want to know who has authority over your father’s affairs before adding any money,” he said. “If your father granted a power of attorney, he’ll have an agent — likely one of your siblings — that owes him a fiduciary duty and must only act in his best interest.”
If you suspect a sibling is violating a fiduciary duty, Jeffrey Loew, managing partner at Trust Law Partners LLP, said that court action may be required. “If you’re unable to talk with your dad or your siblings appear to be acting in a way that’s harmful for him, you may have to consider going to court to have that sibling removed and replaced,” Loew said.
Kim can pay, but with some caveats
While Kim’s issues with her siblings may be justified, she ultimately must decide whether she’s willing to support her dad.
Patrick Simasko, an elder law attorney and financial advisor at Simasko Law, suggests confirming that Dan has exhausted his own financial resources first. “You must first spend his money before contributing your own,” he said.
“Medicaid may help cover care expenses, but these are asset-based benefits, which is why you need to spend his money down first.”
If her dad is actually broke, Kim should help him apply for Medicaid through his state to potentially cover his care. Kim may also ultimately decide to offer whatever support he needs, despite the conflicts with her siblings if Medicaid won’t pay. After all, the fight was with her brother and sister, not Dan, and she may feel like she owes Dan some help since he raised and provided for her.
“In some rare cases a court could find that you owe a duty to assist in your parents’ care,” said Loew. “Approximately 30 states have laws called filial responsibility laws that require a child to provide support for a parent if certain conditions are met. While these laws often aren’t enforced, their existence still reflects the societal belief that kids should help their parents.
Still, given the history surrounding her siblings, she must do so in a way that makes her confident her money is providing for Dan directly. Kelsey Simasko, attorney at Simasko Law, suggested a “pay to play” approach.
“Pay the bills but don’t hand over the money,” she said. “If your dad needs assistance and you’re willing to help out, you need to make your siblings send you the bill, and you pay the bill directly. Do not send cash and hope that they’ll pay his bills with it, and do not write a check and ask them to account for what is being done with your money. Pay the bills directly.”
If Kim does that, she can play a pivotal role in her father’s care during a vulnerable time. And she can feel good knowing she did the right thing even if her siblings can’t necessarily say the same.
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This article originally appeared on Moneywise.com under the title: My siblings put our dad, 94, in a $7,500-a-month facility without consulting me — now he’s broke and they want me to pay
This article provides information only and should not be construed as advice. It is provided without warranty of any kind.
His Daughter Will Sign the Admission Papers as Power of Attorney, Not as Guarantor. The Facility Will Sue Her Personally Anyway, and the Judge Will Ask One Question: What Did She Spend His Money On?
Signing nursing home papers as POA doesn’t prevent personal liability if you spend a parent’s funds on anything other than their care.
In Troy Nursing v. Naylor, Diana Gaetano faced an $80,509 judgment after using her father’s money for his mortgage, cable, gifts, and lawn care instead of his bill.
Picture a scene familiar to lawyers who work with aging clients. Dad can’t go home after a stroke. His daughter sits in the admissions office with a stack of papers, and she knows one trick: she signs as his power of attorney and writes “POA” beside her name. That way the bill stays Dad’s problem and never becomes hers.
Months later, the facility sues her personally anyway. The judge looks past the signature line and asks what happened to Dad’s money. That question decided a real New York case, and it left a daughter who thought she’d been careful facing personal liability for a five-figure nursing home bill.
Federal Nursing Home Reform Act Bans Guarantees but Allows One Kind of Promise
The rule she relied on is real. The Federal Nursing Home Reform Act bars a facility from “requir[ing] a third party guarantee of payment to the facility as a condition of [a resident’s] admission”. The ban sits in the Medicaid statute at 42 U.S.C. § 1396r(c)(5)(A)(ii); a parallel provision covers Medicare.
The same law contains the exception that trips families up. It “expressly permits” a facility to require “an individual, who has legal access to a resident’s income or resources available to pay for care in the facility, to sign a contract (without incurring personal financial liability) to provide payment from the resident’s income or resources for such care.”
In simple terms, the home can require the daughter to apply Dad’s money to the bill. Her own savings stay off the table at signing. If she breaks that promise, though, she can end up owing the money herself.
Troy Nursing v. Naylor: An $80,509.55 Lesson in Following the Money
In Troy Nursing & Rehabilitation Center v. Naylor, decided by New York’s Appellate Division, Third Department, on April 26, 2012, Ernest Naylor had a massive stroke in December 2005. He lived at the Springs Nursing & Rehabilitation Centre in Troy until his death in October 2008.
On two occasions when he came back from the hospital, his daughter, Diana Gaetano, signed agreements promising to use her power-of-attorney access to his assets to pay for his care. She also agreed to pay damages if she broke that promise.
The nursing home balance went unpaid. The court examined how she’d used her father’s funds instead: his mortgage and taxes, cable, lawn care, housecleaning, gifts and other expenses. The appeals court said the record was “replete with evidence” that she broke her agreement to use his funds to pay his debts to the facility.
The trial court held her personally liable for $80,509.55, plus interest, the unpaid balance when he died. The appeals court agreed that she could be personally liable for breaking her agreement to use his money for his care, but it did not uphold that damages figure. It sent the case back because his estate had to be part of the case and the record didn’t show how much of his money had actually been available to her.
Her “POA” defense failed too. She’d written those letters after her signature on one agreement, but she signed somewhere other than the line marked “Signature or Mark of Resident.” The contract spelled out her own duties as the responsible party, so the court refused to treat the signature as Dad’s.
When a Power of Attorney Turns Into Personal Liability
Liability for a parent’s nursing home debt requires more than holding power of attorney. Gaetano’s exposure came from two facts together. She signed a promise to use her father’s available resources for the facility, and she allegedly spent those resources elsewhere.
Some of those payments look ordinary on their face. Keeping up a mortgage and taxes can make sense when someone may come home. In this case, though, the court found that her father clearly would never live there again. Gifts were harder to defend too, and they can create a second problem because Medicaid reviews gifts made before an application and can impose a penalty period.
These lawsuits still happen. Kaiser Health News reported in July 2022 that nursing homes were suing residents’ friends and family to collect debts, often under “responsible party” clauses in admission agreements.
State law determines how far those clauses reach. New York mirrors the federal ban in its health regulations at 10 NYCRR 415.3. In Connecticut, an appeals court held in Meadowbrook Center v. Buchman in 2014 that a son could be held personally liable after failing to provide information needed to establish his mother’s Medicaid eligibility. That means the same signature can carry different duties tied to both state law and the contract’s wording.
A Clean Ledger Is the Best Defense
The Naylor facts show where the trouble starts: the bill goes unpaid while the agent writes checks from Dad’s account for everything else. A judge reviewing a responsible-party claim wants to see bank statements, and those statements tell the story whatever’s written next to the signature.
Writing “POA” next to a signature protects against one kind of liability: a personal guarantee the facility can’t legally demand. The duties that come with controlling Dad’s money still apply. Agents who keep careful records, use his money according to the agreement and stay on top of Medicaid paperwork can answer the judge’s one question quickly. The same paperwork discipline, including account titling and beneficiary forms, is what we walked through in a free estate checklist for families trying to keep money with the family instead of the lawyers.
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