Guardianship in the Home Health Care Industry

There are situations where individuals who require home health care can no longer make certain decisions for themselves and don’t have family members available or capable of stepping into a guardianship role. These individuals may possibly suffer from Alzheimer’s or dementia or have had a stroke. To fill this gap, some home health care providers offer adult guardianship as part of their services.

Adult guardianship is appointed by the court to make certain decisions on behalf of the patient. These decisions include arrangements for food, clothing, housing, medical care, recreation as well as difficult life and health decisions in accordance with the patient’s preferences. An individual or organization may also be appointed “guardian of estate” with the responsibility to manage, in the best interest of the patient, his or her financial assets. This may involve working independently or along with financial specialists.

An alternative to guardianship is obtaining a power of attorney for finances, which is a simpler process than going through the guardianship process. This individual or organization, on behalf the patient, can handle everyday financial matters such as rent, insurance, and doctors’ bills, as well as major matters such as sale of assets or the management of a business, property, or investments.

Home health care providers that provide these types of services are typically registered as National Certified Guardians and appointed by the courts to serve as guardian of a particular person. Most states require a recent medical evaluation of the patient completed and signed by a physician, psychologist, or other court-authorized professional along with the guardianship application. Once appointed, the guardian in most states is required to post a fiduciary bond with the court to insure guardianship assets against mismanagement or misappropriation by the guardian. In addition, the guardian must attest to the court that they will fulfill all legal obligations to the patient as imposed by the court.

While guardianship services are instrumental to the health and welfare of home health care patients who are in need of them, there are potential liability pitfalls. To help prevent disputes or possible lawsuits, it’s imperative these conditions are followed:

  • Keep in constant communication with the family.
  • Respect the expressed patient’s desires – honor the patient’s previously executed living will.
  • The patient should never be made to do anything against his or her own will.
  • When faced with major decisions such as whether the patient should be placed in a nursing home or consent to specific medical treatments, there should be a formal petition to the court.  
  • Submit periodic reports to the court on the patient’s health and well-being, as well as a report from a medical professional indicating whether the guardianship needs to continue.
  • With an estate guardianship, apply to the court for permission prior to spending the patient’s funds. Follow any state and local jurisdictions regarding the prudent investment of patient’s funds.
  • Provide the court with a periodic accounting of the funds received and expenses paid on behalf of the patient. Continually demonstrate to the court that all decisions on the patient’s behalf are in his or her best interests.

Guardians who fail to meet their legal obligations may be removed as guardian by the court. Family members or public agency employees may inform the court that that patient is receiving improper or insufficient care or that funds are being improperly managed. Moreover, if allegations of maltreatment or misappropriation of funds are justified, the guardian may also face charges of neglect, abuse, or theft under local criminal laws.

Manchester Specialty Programs specializes in insuring the home care industry and provides comprehensive portfolio of coverages that includes General Liability, Professional Liability, Workers’ Compensation, Management Liability, Cyber Liability and Non-Owned & Hired Auto insurance. For more information about our business and insurance lines, you or your local agent/broker may contact us at 855.972.9399.

Source: American Bar Association/General Practice, Solo & Small Firm Division