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Chasing subscriber into nursing home or grave
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Ken,
    I would enjoy a good discourse in your newsletter about collecting old balances from persons who have been moved into nursing homes and/or died.  It's not like every person in this situation is financially destitute.  In many cases they have plenty of assets but due to dementia, etc. their affairs are now in other hands.  What's my best approach to get paid by the client, by a Power of Attorney or if it comes to that, by the estate. 
    For example, a client with a good payment history gradually becomes slow pay.  By and by all of our correspondence seems to go ignored.  Eventually we learn they have gone to a nursing home.  After that, it can be very difficult determining who has charge over their financial matters and just as hard to get that POA to write a check.
    I have such a client, a widow, who has been placed by her family in a nursing home.  The property is evidently still in her name but it may not be very long before the family must dispose of it, presumably to pay for her care.  Meanwhile, before being moved, she accumulated a large balance mostly because she was physically unable to do bill paying.  
    Is there a sure-fire way to identify the current POA and/or make that person step forward?  (And I do appreciate the overwhelming burden the situation has already placed on the POA.)  Can their bank be compelled to give us that information?  Later on, doesn't the nursing home have the responsibility to pay off her balance to us once they take charge of her assets?  How do I reliably assert my claim? 
    Please sign
Anonymous in PA
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Response
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    Some might think you should have signed off "Heartless in PA".  But, you are correct that in most contractual situations disability or death is not an excuse to honor the contract.  The exceptions to the general rule are when 1) the contract specifically terminates upon an event, such as disability or death - and by the way a PERS contract will provide for this,  or,  2) a statute requires the contract be terminated upon such an event - which some PERS statutes do require.
    Run of the mill residential or commercial alarm system contract will survive disability or death. While the party who signed the contract and who is presumably responsible for payment is alive, someone holding a power of attorney or a trustee of a trust, or signatory on the responsible party's account, can make payment, though isn't obligated to and isn't personally liable if doesn't. 
    Your remedy, absent a guarantor, is to sue the party who signed the contract.  If that party is alive but incompetent you will have to get a Personal Representative appointed by the Court unless one has already been appointed.  If the party is dead then you can look to the Executor [or Personal Representative] for payment, but payment is limited to the estate left by the deceased subscriber.  Creditors should be paid before beneficiaries, and if the Estate makes payment to a beneficiary before paying the creditor the creditor can look to the beneficiary and Executor.  You must follow your state law regarding asserting your claim in an Estate situation.  Nursing homes are not responsible for a patient's contractual debts absent a guarantee, which you're not going to get.
    Before deciding whether to pursue a disabled or dead subscriber consider a few issues that are likely to arise, at some of them and maybe all of them.  

  • Pursuing a disabled or dead subscriber may cause a relative to complain to a consumer affairs or licensing agency
  • The cost of having an Executor or Personal Representative appointed may not be justified
  • You may want to try and ascertain the potential of getting paid if you do prevail in a litigation
  • You may end up with bad publicity
  • You may end up with a sympathetic judge who finds a way to rule against you and that ruling may have consequences beyond that single case

    I am not advocating not pursuing a case against a subscriber who suffers disability or death, but I think you need to carefully screen these cases and decide if it's worth the time and effort in that particular case.
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TO SUBMIT QUESTIONS OR COMMENTS REPLY TO THIS EMAIL OR EMAIL Ken@Kirschenbaumesq.com.  Most comments and questions get circulated.

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Alarm Association of Greater St. Louis.   September 16, 2014.  at Tech Electronics HQs office at 6437 Manchester  Ave, St. Louis, MO 63139.  Meeting is from 11:45 – 1:30  Video conference presentation starting at 12:15 CST.  For more information or to register contact Tony Drago adrago@tyco.com  www.alarmstl.org
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NYSESA - September 17, 2014 at Honor's Haven Resort, Ellenville, NY.  This is the NYS Electronic Security Assoc annual meeting.  Presentation on updated contracts and current legal issues will be at 10:30 AM.  For more information or reservations contact Dale R. Eller, Executive Director (814) 838-0301  dalereller@itzsolutions.com
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Texas Burglar and Fire Alarm Association.  October 1 - 4, 2014,  annual convention at San Luis Resort Spa & Conference Center, Galveston, TX.  Register here:  http://tbfaa.org/tbfaa-2014-convention-trade-show-attendee-registration/
For more info contact Debi at 281-859-4569.  Brad Shipp, Executive Director
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Alabama Alarm Association.  AAA's Fall Meeting and Trade Show - October 21, 2014 from 3 to 5 PM at DoubleTree Hotel 808 South 20th Street Birmingham, AL 35205  for more info contact AAA Executive Director: director@alabamaalarm.org  (205) 933-9000 

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