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Beware Arbitration Clauses Hidden in Nursing Home Admission Contracts

You have seen in my blogs and articles I always say, “Do not sign a nursing home admission agreement that makes you the ‘responsible party’.” That language creates a legal obligation to financially pay for the care if the resident does not pay the facility. If a person other than the resident is signing the admission agreement (perhaps using a Durable Power of Attorney or, Designation of Health Care Surrogate) I suggest that that you cross out that language and initial it. Be sure to include your title after your signature (i.e. POA, DHCS) so that you do not create personal liability. Watch out for an arbitration clause when reading a nursing home or assisted living facility admission agreement. ‘Arbitration‘ is a legal process used for resolving disputes (i.e. non-payment of rent) that does not involve a court proceeding. The decision made by the arbitrator is final and binds you! More and more facilities are including an arbitration clause in their admission agreements. This is not always beneficial to the resident. An arbitration clause can limit the resident’s right to recover damages against a facility for negligence or abuse.

In two cases The Massachusetts Supreme Court just ruled that an agent named in a health care proxy does not have the authority to sign an arbitration agreement on behalf of a nursing home resident. Click here to read the cases. The Court looked at the intention of the law that permits a health care surrogate to make informed medical choices for an incapacitated person. The Court reasoned that the scope of a health care surrogate’s duties does not include waiving the resident’s right of access to the courts and to a trial by a jury. Florida law has a similar intention – by naming a health care surrogate a person can select a trusted individual to make informed health medical decisions during that person’s incapacity. Click here to read the Florida law’s intent.

Before you sign an admission agreement schedule a consultation with a certified elder law attorney to review the agreement with you and inform you of your rights. At our firm, we want to be your trusted advisor through life.