When admitting your loved one to a nursing home, you are presented with a moutain of paperwork and fine print. If you are like most people in those circumstances, you may feel upset, highly emotional, perhaps overwhelmed. Even so, it is vital to keep your wits about you and be careful about what you sign. There may be perils lurking in that paperwork.
Below, we give you tips on what you should be looking for in all that paperwork, and what to do if you spot it.
Do Not Sign as Responsible Party
The admissions agreement may include terms like “responsible party” (or “guarantor” or “private payor”). Do NOT sign as the responsible party. Signing as the responsible party makes you personally liable for the nursing home bills.
Do not sign as the responsible party even if you are the prospective resident’s agent under his/her Durable Power of Attorney or Health Care Surrogate. Instead, sign the admissions agreement as the agent on behalf of your loved one. For example, if you are Mary Smith and you are admitting your father John Doe to a facility, sign as follows: John Doe, by Mary Smith as agent under the John Doe Power of Attorney.
Cross out any language you see that refers to making anyone other than the resident responsible for the bills.
Look for An Arbitration Agreement
There is often another danger buried in those reams of paperwork: an arbitration agreement. If you sign an arbitration agreement, you are effectively waiving the right to sue the facility if the facility is responsible for your loved one’s serious injury or death. You are agreeing to settle any dispute through arbitration. Arbitration means that your complaint will go to one arbitrator or a panel of arbitrators who will hear the evidence about the dispute from both you and the nursing home. The arbitrator will then make a decision.
Do not confuse arbitration with mediation. Mediation of a legal dispute involves a mediator who hears from all parties involved in a conflict, then suggests a resolution that all the parties may accept or reject. An arbitrator also comes up with a resolution, but it is binding on all parties.
Also, the reality is that arbitration is generally more favorable to the nursing home than to the resident and family. Here’s why:
- Although both you and the nursing home will have a list of arbitrators to choose from, arbitrators agreed to by the nursing home may have an existing relationship with the facility, That arbitrator is therefore more likely – even if subconsciously while trying to be objective – to favor the facility when deciding on a monetary settlement. Finding in favor of the nursing home resident can help them secure future arbitration work. In contrast, jurors at jury trial, the process arbitration agreements avoid, are more likely to be sympathetic to elderly or disabled residents and their families.
- A court case is public. Arbitration is confidential. If you move to sue a facility, it is more inclined to offer a fair and full settlement to keep allegations of neglect or abuse from going public. But with arbitration, a nursing home has no such incentive because the process is hidden from public view.
- Unlike a decision that is made by a court, the decision made in arbitration generally cannot be appealed.
You Cannot Be Required To Sign an Arbitration Clause
Federal law prohibits a facility from denying admission to a prospective resident based on failure to sign an arbitration clause. The arbitration clause itself must include that information. Notwithstanding that, the person handling the admissions paperwork may not make that clear to you. You could feel pressure to sign, or in that moment you may not fully grasp the implications of signing it.
If you do sign an arbitration clause but subsequently change your mind, you have thirty days in which to rescind it. Beyond that time period, the arbitration agreement is a contract and like any other contract, can be very difficult to overcome. You would need the assistance of an attorney and would have to have legal grounds to challenge it, such as the wrong party signed the agreement or the agreement was not properly explained.
In conclusion, there is no reason that someone being admitted to a nursing home should sign an arbitration clause. First, there is no requirement that it be signed. Second, arbitration creates potential disadvantages and provides no advantages for the resident and family. And last, you can always opt for arbitration instead of a lawsuit if you want to take legal action against a facility in the future. There is no reason to commit yourself to arbitration ahead of time.
