Elder-Care Aide Sues 97 Year Old Woman In Court

Sometimes one needs to fire a health care aide for one reason or another. But be prepared for a lawsuit.

I never dreamed that the court clerk would demand that my 97 year old Aunt appear in court.

I wrote this to help anyone who finds themselves in a similar predicament.

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It became necessary to fire two aides. I’ll tell you what lead up to it…

My Aunt was becoming hard of hearing and needed to use the speakerphone on her phone rather than holding it to her ear. Of course the aide could hear everything and was always listening in on her phone conversations.

Once my Aunt asked me if she had enough to pay her bills. The cost of aides 24/7 for a woman reaching the age of 100 is very costly. It’s only a matter of time until all her funds run dry. I didn’t want to upset her so I told her “Your doing fine. You have enough money.”

Since the aide was listening to the phone conversations, she started giving ideas to the other one. Shortly after that both of them asked for raises.

Coincidence? I think not! I turned them down since we had an agreement on the amount of payment and they had previously accepted it. It was too soon to renegotiate. But I also turned them down for other reasons…

I noticed that over time they were increasing their purchases of staples and food. And I knew my Aunt couldn’t have been using so much. They must have been taking things home for themselves.

It got worse. Things got out of hand when one day my Aunt complained that one of the girls was yelling at her and losing her temper. So I decided that I needed to fire both of them and start with a clean slate.

After finding replacements through another local heath care agency I performed the agonizing task of firing. I paid them both for services rendered plus something extra and sent them on their way.

Shortly after that one of the aides who I fired called my Aunt and threatened her. She told her “You are going to have a hell of a time.” I tried to report this as elder abuse to the local authorities but was told that nothing can be done unless she actually tried something.

Within a few weeks my Aunt received a registered letter from Small Claims Court with a subpoena to appear in court. What the aide ended up doing could not be reported as abuse since she went though the court system with a legal lawsuit. I considered this frivolous but since it was legally registered through the courts it could not be written off as abuse.

The aide was suing for being fired and for missing wages. Well the fact of the matter is that New York law allows one to fire someone without cause as long as it is not for discrimination. But the missing wages suit needed to be resolved.

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By the way, she didn’t sue me. She sued my Aunt who was 97 at the time. At that age and her frail condition there was no way my Aunt would survive going to court. The affect of bringing her there and the stress of being shoved around in Court would do her in.

Appearance in court by my Aunt was required by the New York Small Claims Court because my Power Of Attorney her lawyer created for her did not include litigation rights. That meant that I could not fight her case in court for her.

Okay, I can understand rules are rules. But the way the court clerk insisted that my Aunt had to appear in court was unacceptable and is a bad reflection on how New York State treats the elderly. When I told the clerk she was 97 she simply said "That doesn't matter. If she is not here when we call her then she will be found guilty." She just didn’t care that my Aunt was 97 and didn't offer any other options or guidance.

The court clerk scheduled a new date and I was thinking of hiring an Elder Care Attorney who specializes in health care court cases and elder abuse. Several lawyers told me to do it myself since it was small claims court and they would end up having to charge me for waiting numerous times for trial, as I was about to discover.

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I did my own research and found out all I had to do was get the proper POA showing that she gives permission for me to perform litigation for her. I ended up purchasing and downloading a Power Of Attorney Form from one of the many legal form sites you can find with a Google search. I had to bring my Aunt to the bank with that form to have her sign it and notarized in front of a bank notary.

The bank was only a block away from her apartment. So I was able to push her there in her wheelchair without any issues. It would have been a whole different matter driving her to court 50 miles away and trying to get her though security and up the elevator and then have her wait three hours sitting in a wheelchair with all the noise around that would have been very disturbing to her.

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So now I could litigate her case. It took seven visits to the court. Each time there was only one judge and hundreds of cases. So each time I was sent home again with another court date usually about two months later. This whole thing dragged on for well over a year.

If we used an arbitrator we could have had the case heard at once. But both parties have to agree to an arbitrator. The aide insisted on having a judge because she didn’t want to accept the fact that the decision of an arbitrator is final. So we kept going back every other month.

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By the seventh trip to the court I had reached my limit of frustration. Even though I was not dragging my Aunt in, I was still spending a lot of my own time with all the trips just waiting in the courtroom for the clerk to send us home again. So this last time when the clerk once again said we had to come back I yell at her loud enough for everyone to hear, “This is totally unacceptable to drag this on over a year for a defendant who is 98 years old!” Yes she reached 98 by that time. I went on yelling “This is elder abuse if I ever saw one!”

The clerk asked me to wait. She left the room as I suspected she went to talk to the judge. She came back saying “The Judge will see you tonight.”

Finally I had my time in court for my Aunt. The judge seemed angry that the first item was a lawsuit for being fired. That was discarded immediately. Then the judge asked her to explain her suit for missing wages. The aide really made a fool of herself. She explained how she overheard me telling my Aunt over the phone that she had enough money. She explained to the judge that I was just being cheap.

I was prepared to defend the missing wages suit since I suspected what it was all about and I brought to court all the paperwork to prove my case.

The judge asked me to explain my defense about missing wages.

It turns out that just before I took over handling my Aunt’s bills, she had a short stay in the hospital. She had more frequent hospital stays in her later years as her health declined. This aide had asked her for more money while taking care of her in the hospital. She explained to my Aunt that it was more difficult to care for her in the hospital and she needs more money.

Being as gullible as she was, my Aunt fell for that and paid her more for the few weeks she was in the hospital. When she came home, that was the time when I took over. I made the mistake of paying the aides what I saw my Aunt was paying them from the last few checks. It should have gone back to the correct pay when she was home again. For a year I had overpaid her.

“She was clearly taking advantage of my Aunt’s trust and my kindness by not mentioning that I was overpaying her. She had an agreement to pay more only during that hospital stay,” I explained to the judge.

I continued explaining that I told the aide we wouldn’t ask her to pay back the over-payments but that we will have to adjust her pay to the correct amount going forward.

Notice that I never used the words, “lower her pay.” I purposely avoided that language. I explained that I had “adjusted her pay back to the correct amount”. See the difference in the meaning?

I also mentioned to the judge that plaintive just admitted she was listening in on my Aunt’s private phone conversations and I completed my statement with “I think that shows she was up to something.”

The judge remained quiet for some time as if she was contemplating everything I just had said. Then she asked if I had proof of the payment amounts before and after the hospital period. I had a stack of banks statements three inches thick and presented this to the judge. She never looked at it. I guess the thickness of it was enough for her.

Needless to say, I won the case. My Aunt died a few months later but at least she knew we won.

Copyright © 2011 Glenn Stok