The Hassle of Firing a Healthcare Aide for Abuse
You might encounter a frivolous lawsuit.
This article is a personal account of the challenges involved with firing an eldercare aide I had hired for my 97-year-old Aunt.
If you ever need to fire an eldercare aide that isn’t working out well for your elderly family member, you might find yourself defending a frivolous lawsuit. Even if you have a legitimate cause, the aide can still bring on a lawsuit that can drag on for months or years.
I first became aware of a problem developing when I noticed that the aide was increasing the purchases of toiletries and food items. I knew my Aunt couldn’t have been using so much. It soon became clear that the aide was taking things home for herself.
Hassles With Firing an Eldercare Aide for Abuse
Things got out of hand one day. My Aunt complained that the aide was yelling at her and losing her temper. Therefore I decided that I needed to replace her.
After hiring a new aide through another local healthcare agency, I fired the abuser and paid her up-to-date, including the entire last day. Wouldn’t you say that was fair?
Shortly after that day, the aide started calling my Aunt and threatening her with a lawsuit. She said, “You are going to have a hell of a time!”
I tried to report this as elder abuse to the local authorities, but they told me that they couldn’t do anything unless she tried something to hurt her.
Within a few weeks, my Aunt received a registered letter from Small Claims Court with a subpoena to appear in court. I considered this frivolous, but since she legally registered it through the courts, it could not be written off as abuse.
The aide was suing for two reasons: For being fired and for missed wages. Well, the fact is that New York law allows one to fire someone without cause as long as it is not for discrimination.
However, the missed wages suit needed to be resolved. I paid the aide in full through the end of the day I fired her, so I was amazed that she would bring on a suit for missed wages.
Eldercare Aide Sues in Small Claims Court
The aide didn’t sue me. She sued my Aunt, who was 97 at the time. At that age and in her frail condition, there was no way my Aunt would survive going to court.
The New York Small Claims Court required an appearance in court by my Aunt because my Power Of Attorney did not include litigation rights. That meant that I could not defend her case for her.
Okay, I can understand rules are rules. However, how the court clerk insisted that my Aunt had to appear was unacceptable and was a bad reflection of how New York State treats the elderly.
When I told the clerk she was 97, she obnoxiously replied, “That doesn’t matter. If she is not here when we call her, she will be found guilty.”
“If she is not here when we call her, she will be found guilty.” — Court clerk’s reply about an elderly defendant.
A “Power Of Attorney” Is Needed for Litigation
I did some research and found out that all I needed was the proper POA showing that she permitted me to litigate on her behalf.
I purchased and downloaded a Durable Power Of Attorney Form from a legal form website that I found with a Google search.
I brought my Aunt to the bank in her wheelchair so she could sign the form in front of a bank notary and have it notarized.
Several lawyers told me to handle the case myself since they would have to charge me for waiting hours on end, numerous times, waiting for trial, as I was about to discover.
The Court Case Concerning Firing the Aide
So now, with the POA, I could defend her case. It took seven visits to the court over more than a year.
Each time there was only one Judge and hundreds of trials. I was sent home, again and again, with another court date, usually scheduled about two months later.
This whole thing dragged on for well over a year. I was thinking the court was just waiting for her to die.
If we used an arbitrator, we could have had the case heard at once. However, both parties have to agree to an arbitrator.
When one loses a court case, they can request a retrial. However, when using an arbitrator, both parties must accept the final decision.
The aide insisted on having a Judge because she wanted to avoid accepting an arbitrator’s final decision. Therefore, we kept going back every other month.
“This is totally unacceptable to drag this on over a year for a defendant who is 98 years old! That is elder abuse if I ever saw one!”
Court Delayed Start of Trial
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 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 yelled at her loud enough for everyone in the courtroom to hear…
“This is totally unacceptable to drag this on over a year for a defendant who is 98 years old! That is elder abuse if I ever saw one!”
Yes, she reached 98 by that time.
The courts don’t care how old one is, but evidently, I made an impression. The clerk asked me to wait, and she left the room. I suspected she went to talk to the Judge.
When she returned, she said with a very decisive voice, “The Judge will see you now.”
Finally, I had my day in court for my Aunt.
Two Lawsuit Claims in One
As I mentioned, she sued for being fired and for missing wages. The Judge seemed angry that the first item was a lawsuit for being fired. She discarded that suit immediately since New York law allows one to fire someone without cause.
Then she asked the plaintiff to explain her suit for missing wages. The aide made a fool of herself. She told the Judge she overheard me talking to my Aunt about her pay. She said I was cheap because I refused to raise her salary.
I was prepared to defend the missing wages suit to prove my case. I had a stack of bank statements three inches thick to show that I always paid the aide, and I presented this stack of papers to the Judge.
She never looked at it. I guess the thickness of it was enough for her, and the fact that I had it ready to show her was all she needed.
I won the case, but in a way, the aide succeeded too. She accomplished what she wanted. She wasted my time with many trips to the court and frustrated my elderly Aunt for over a year of her final days alive.
My Aunt died a few months later, but at least she knew we won her case so she could rest in peace.
