An ELHF is an Expedited Limited Healthcare Fiduciary. ELHFs are appointed by a court when a hospital does not believe a patient is capable of making safe discharge choices and no family members are willing, or capable, of helping the patient. Authorized by § 34-1-133, it is a new procedure that has not been interpreted by any appellate court.
It is an expensive procedure because the hospital not only has to pay their own attorneys, the hospital is highly likely to have to pay for the ELHF and the attorney ad litem as well. There are three hearings: an initial ex parte hearing; a contested hearing within five days to determine appropriateness, and; a hearing at the end to determine whether to dissolve the appointment, or convert it to a conservatorship.
Why would a hospital voluntarily incur such expense? It is problematic to hold a patient who does not need hospitalization in a bed that could be occupied by someone who does. And, there are federal regulations placing an affirmative burden on hospitals to ensure the patient is safely placed and no longer in need of hospitalization.
ELHFs are usually attorneys because they have to appear in court on at least two occasions and will need to deal with legal matters as well as making decisions for the patient. ELHFs have a short life span, lasting a maximum of 60 days, after which the matter is either dropped, or the ELHF continues serving as a conservator. When an attorney is acting as an ELHF a potential source of payment for services, assuming court approval, is the petitioning hospital if the patient has no funds or income. The same goes for attorneys ad litem. If the attorney becomes a conservator the only source of pay is the income and assets of the ward. Wards usually do not have sufficient income or assets to pay the conservator. So, the attorneys who take on ELHF appointments go in knowing that the only compensation they may receive is up to court approval.
What do ELHFs do? They work with hospital staff to place the patient in a safe environment. They may become a representative payee with Social Security. They talk with the patient, answer questions and discuss what is happening and why. They sign the patient into a facility, or a group home. They find sources of income and assets. They try to find family who can, and will, help after placement is done. Sometimes the issue keeping family from agreeing to help is the fear that they will become personally liable for care and housing.
ELHFs generally work quickly because the patient, the hospital, and the family all want placement as soon as is possible. Often, placement involves helping to obtain disability benefits from Social Security. Verifying assets and income is also important in qualifying the patient for TennCare Choices benefits like long term care. So is figuring out what to do with any real property and how to deal with “presents” made to family members within the last five years that can create penalty periods of ineligibility for TennCare benefits.
Patients in need of an ELHF generally suffer from dementia, or a psychiatric disorder that prevents them from dealing with their situation. Some may have adverse changes to their thinking caused by long term substance abuse. Many will be homeless. Trying to establish eligibility for benefits, find safe housing, and ensure continuing medical care is hard enough for normal people. Obtaining these necessities is simply bewildering and unobtainable for patients in need of an ELHF.
Attorneys are needed to serve as ELHFs. Between Nov. 1, 2016 and Nov. 1, 2017, there were 260 conservatorships and ELHF cases filed in Davidson County. A high portion of those cases were either emergency conservatorships or petitions for an ELHF. The probate bar is overwhelmed. Some attorneys have over 30 cases as an ELHF or conservator.
Davidson County has a high number of cases because of the concentration of hospitals here that accept patients from all over Tennessee and surrounding states.
You can become an ELHF. You will be able to help keep a helpless person safe. If you want to become an ELHF please be sure to take the CLE courses about ELHFs and conservatorships available from the Nashville Bar Association. Work as an ELHF can be eligible for pro bono credit. Karl Warden
