Brutal procedure in Poland. Outrageous cases of concluding so-called life annuity contracts

• In social welfare homes (DPS) run by public entities, specific rules for charging fees apply, resulting from the Social Welfare Act.
• However, as the Association of Municipalities and Districts of Wielkopolska points out, these regulations - which are generally uncontroversial - contain one significant loophole.
• One of its consequences are the outrageous cases of relatives extorting real estate from the residents of social welfare homes.
• - The consequences of such procedures fall on the municipalities and are inconsistent with what the relatives committed to each other - local government officials emphasize.

The Association of Municipalities and Districts of Wielkopolska (SGiPW) has issued a position on the costs incurred by municipalities for the stay in a social welfare home (DPS) of persons for whom a legal obligation has been established to provide care by another entity or natural persons .

The organisation points out that social welfare homes run by public entities are subject to strictly defined rules for charging fees, resulting from the Social Welfare Act.

According to these rules, the commune may be one of the parties participating in the costs of a resident's stay in a nursing home, but only in the amount of the difference between the average cost of maintaining a senior in a nursing home and the fees paid by the family, and assuming that the senior does not bear the entire fee himself.

In principle, the regulations are clear and do not raise any controversy. However, members of the Association of Municipalities and Districts of Wielkopolska draw attention to a legal loophole, which in the opinion of municipalities is deeply immoral and socially unjust.

There are situations where elderly people who are already lonely and sick are cared for by members of their extended family (not descendants or ascendants), which includes moving this person to their place of permanent residence in a commune other than the one in which the senior is registered.

- we read in the position of the Association of Municipalities and Districts of Wielkopolska signed by Jacek Gursz, chairman of SGiPW, mayor of Chodzież.

After several months of caring for such a person, the family arranges to place him in a social welfare home. In such a case, the placement of such a person in a social welfare home is made by decision of the social services of the commune in which the person was staying at the time, and the costs are charged to the commune of the last stay, but due to registration, not the actual stay of the person . This fact alone raises objections among local governments and gives a sense of great injustice.

However, even more outrageous is the situation in which members of the extended family of the ward (not descendants or ascendants), before placing him in a social welfare home , conclude a so-called life annuity agreement with him in a notarial manner .

In this agreement, they undertake to provide care and maintenance for the ward until the end of his life, in exchange for transferring to them the property in the form of a real estate with a house and agricultural land, and they do not want to cover the costs of his stay in the social welfare home, justifying this with a difficult financial situation.

Unfortunately, in the appeal procedure before the Local Government Appeal Board (SKO), this body does not take into account the argument of the notarial life annuity agreement and the family obligations resulting from it. Instead, it indicates the obligation of the commune to pay for the stay of its resident in the nursing home.

This position of the second instance body is outrageous, but it results from a legal loophole in which there are no regulations that would oblige public administration bodies to verify mutual obligations between natural persons, such as notarial life annuity agreements.

In the above example, a bizarre situation occurs in which the family of a person in need takes over his property worth several million zlotys in exchange for providing him with care, and then takes advantage of a legal loophole and creates a situation in which the costs of this care are borne by the commune in the form of a fee for placing the person in a nursing home.

Although there is a notarial obligation agreement, it is not noticed by public institutions during the KPA proceedings. There is also no body that would enforce its provisions.

- The case described above clearly shows a legal loophole that allows such actions to be taken legally and not suffer any consequences - SGiPW points out.

We have a situation where there is even a fraud involving real estate, and the consequences of such a procedure fall on the municipalities and are inconsistent with what the relatives have committed to each other.

- we read in the position of SGiPW.

Its authors add that there is also no certainty that the legal loophole will not be increasingly exploited by dishonest citizens. - It is therefore worth taking remedial action today and creating a situation in which sick and lonely people will not lose their assets to cunning relatives, who in the end get rid of them using legal loopholes and at the expense of the municipalities - emphasizes the association.

Taking into account the above-mentioned issues and acting in the interest of the affected municipalities, as well as seniors who are sometimes involved in such situations, the Association of Municipalities and Districts of Wielkopolska calls for:

• expanding the list of persons obliged to pay a fee for staying in a social welfare home, through an appropriate provision in Article 61 of the Social Welfare Act, paragraph 1, point 2, on persons who received a gift in the form of real estate (this issue may be made dependent on the value of the gift);
• introducing legal regulations clearly indicating that in the cases described above, the costs of staying in a nursing home are not borne by the commune, but by the person who has undertaken to provide care in accordance with the life annuity agreement;
• introducing the principle of payment for social services by the commune of actual residence at the time of the event, and not the commune of last registration. Issues of local jurisdiction of residence should also apply to a legally incapacitated person, even if the legal guardian lives in another commune;
• enabling the recovery of payments for a stay in a nursing home from the estate, regardless of the type of relationship.