One might think at least in principle that fiduciary responsibilities exist for the nursing home. But under Florida law that is not the case.

The answer is based on case law – and Florida has not recognized a fiduciary relationship between a nursing home and its residents. There are no opinions in the jurisprudence of the State of Florida recognizing such a fiduciary relationship.

To recover damages from the alleged Breach of Fiduciary Duty, the plaintiff must prove (1) the existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damages caused by the breach.37

While Florida has recognized that fiduciary relationships exist in the context of the physician-patient relationship, therapist-patient relationship and counselor-patient relationships, no such fiduciary relationship has been extended to the nursing home-resident relationship. 38

And while the nursing home is undoubtedly under a duty to provide care and treatment to its residents, the relationships between the nursing staff and the residents is not such that they are required to give advice to the residents. It is undisputed that such advice is limited to the relationship between the residents and their physicians. To hold otherwise would expand the confines of the traditional fiduciary relationship well beyond that envisioned by the Supreme Court of Florida.39

What is a fiduciary responsibility, or duty?

Under Florida law, a fiduciary duty is a legal and ethical relationship created when a person places special trust and confidence in another person to take care of his or her money, assets and financial affairs and transactions.

The fiduciary is obliged to act in the other party’s best interest. The fiduciary’s actions must be free of conflicts of interest and self-dealing.

A breach of fiduciary duties happens when the fiduciary acts in their own interest and not in the interest of the client. They act to gain or obtain some benefit at the expense of the client.

So who are considered “fiduciaries” with regards to nursing home residents?

Generally, the following individuals or entities may have legal duty to act as fiduciary:

  • agents under a power of attorney
  • court-appointed guardians
  • trustees of a trust
  • executors of a will
  • VA fiduciaries
  • Social Security representative payees
  • professionals with the obligation to act in their clients best interests (e.g., attorneys, financial advisors, CPAs, banks, family members)

Protecting the residents in your care

In the relationship between a nursing home and an elderly resident, the resident is dependent upon the services provided by the nursing home. The resident is also dependent upon the staff’s knowledge of the healthcare system, the staff’s access to their privileged information, and the staff’s ability to influence decisions that affect the patient.

If the resident has a fiduciary, the facility should obtain and keep on file documentation of the fiduciary’s authority. Examples of documentation involving a fiduciary’s authority include:40

  • trust documents
  • power of attorney
  • court designations naming a guardian
  • payee authorization for a Social Security representative
  • VA fiduciary appointments
  • Letters of Guardianship

A final point to consider:

Although no legal opinions exist that identify a fiduciary relationship between a nursing home and its residents, it is in everyone’s best interest to avoid actions that could be so interpreted. A prominent example is a nursing home that refers to Medicaid applicants to a nonlawyer Medicaid planner, especially for kickbacks or rewards. In certain cases, this could place the nursing home in a situation of abusing its “position of trust and confidence” as described in Chapter 10.



Excerpt From: John R. Frazier, Leonard E. Mondschein. “Protecting Nursing Homes and Their Residents from the Unlicensed Practice of Law.” iBooks.

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