Long Term Care Law Newsletter
Protecting Residents from Financial Abuse: Discouraging Gifts from Residents to Employees of Long-Term Care Facilities
On several occasions, long-term care facilities have asked us what they should do when a resident wants to give money or personal items, either immediately or in the resident’s will, to one of the facility’s employees who is not related to the resident. This situation raises a number of concerns. This newsletter explores how long-term care facilities can discourage this situation. These steps can protect residents from potential financial abuse, as well as protect the long-term care facility and its employees from any associated liability.
Why should long-term care facilities discourage their residents from gifting money or items to their employees?
Long-term care facilities have a duty to protect their residents from abuse by all persons involved in a resident’s care. This duty comes from the Protection for Persons in Care Act, SNS 2004, c 33 (“PPCA”), which applies to long-term care facilities. Along with physical, emotional, and sexual abuse, the definition of “abuse” in the PPCA Regulations includes “the misappropriation, improper, or illegal conversion of money or other valuable possessions”. As such, long-term care facilities must prevent financial abuse of their residents.
This duty is also outlined in the Nova Scotia Department of Health and Wellness’ Long-Term Care Program Requirements Manual for Nursing Homes and Residential Care Facilities (the “Manual”). Section 8.3 of the Manual is relevant as it outlines certain requirements to prevent any kind of abuse. One requirement is for facilities to develop and implement policies and procedures that protect residents from abuse and maintain a reasonable level of safety, including financial abuse.
In addition, section 11 of the Manual outlines human resource practices that a facility must have in place. Specifically, the facility must develop policies and procedures regarding:
- Employee and volunteer involvement in residents’ personal affairs including:
- Acceptance of gifts from residents;
- Involvement in residents’ financial affairs, including Enduring Powers of Attorney, wills and estates; and
- Involvement in residents’ non-financial affairs including personal directives and guardianship.
The opportunity to leave gifts may lead to potential financial abuse by an employee. Therefore, in order to comply with the PPCA and the Manual, long-term care facilities should ensure that they have developed policies that discourage gifts from residents.
In addition to meeting obligations under the PPCA, properly developed policies regarding gifts to employees also protect a long-term care facility from exposure to potential litigation. For example, if a resident changes his or her will to leave a substantial gift to an employee of the long-term care facility, there could be a problem. It raises questions such as what circumstances led to the resident changing his or her will, whether the resident was competent to make the changes and whether the caregiver unduly influenced the resident to sign a new will. Any of these issues could lead to a family member challenging the will in court. While this litigation would likely name the employee, the facility could become involved. At the very least, any such litigation would involve negative publicity for the facility. Litigation of this type is uncommon in Canada, but it can happen.
What policies should the long-term care facility develop to avoid financial abuse?
The long-term care facility should ensure that it has policies and procedures in place that discourage any gifts from residents to employees. The facility can do this by implementing a policy in its admission documents that the resident (or family member) will sign, as well as in its employment policies.
In its admission agreement, the long-term care facility should include a provision discouraging the resident from providing a gift of money or other personal item to any employee of the facility (unless, of course, that employee is a family member or close friend of the resident already). This includes discouraging residents to include a gift in their will or during their lifetime. Finally, the provision could state that any gift to an employee in the resident’s will would be null and void and the gift would fall to the resident’s estate.
One practical issue regarding including this type of provision in the admission agreement is that the facility may never become aware of the gift left to an employee in a resident’s will. Further, if the estate or a family member wants to challenge the gift on the basis of the facility’s policy, they would have to be aware of the facility’s policy in the first place. This may not always be the case. Further, even if the long-term facility became aware of a gift that was contrary to its policy, it is unlikely that the facility could challenge the will or the gift as the facility would not have standing in court to do so. It would also not be worth the facility’s time or money to challenge the gift in court.
However, there is still merit in putting a provision in the facility’s admissions documents to act as a disincentive for a resident to leave a gift to an employee, as well as discouraging an employee from potentially trying to obtain such a gift.
The long-term care facility should also develop an employment policy making it clear that an employee cannot accept a gift from a resident, whether during the resident’s life or in the resident’s will. Further, the employment policy could state that if a resident indicates to an employee that they want to leave a gift in their will for the employee, the employee has an obligation to discourage it. The employee could also be required to report any such discussion to their immediate supervisor.
Long-term care facilities are under an obligation to prevent any type of abuse to a resident, including financial abuse. One way to do this is to ensure that they have policies and procedures which discourage a resident from gifting any money or personal item to an employee. By including a provision in its admissions documents, as well as in its employment policies, the long-term care facility would discourage any gifts to employees and therefore reduce the risk of financial abuse of a resident by an employee.
This newsletter is produced by Wickwire Holm to keep our clients and friends informed of developments in the law and emerging issues. It is intended for general information purposes only. In preparing and circulating this newsletter, Wickwire Holm is not providing legal or other professional advice. Readers are encouraged to consult their professional advisers before taking any action on the basis of information contained in this newsletter. If you have any questions about any issues raised within this newsletter or a related issue, please contact us at firstname.lastname@example.org or 902.429.4111.