Before you admit a beloved elder family member to a nursing home or residential care facility, you are confronted with a mountain of paperwork. You need to sign, date and initial until your eyes cross. You may be tempted to gloss over or skim the papers because you are in a hurry to get back to your life or because you are emotional about the thought of leaving your loved one in the care of others. Don’t make that mistake, though — this is serious business. You are putting your mom’s, dad’s, grandma’s or grandpa’s life in the hands of virtual strangers, and you need to make sure that the contracts you sign are worded in such a way as to encourage the facility to provide the best possible care.
Many nursing homes, residential care facilities, assisted living communities and hospital ward admission contracts contain an arbitration clause. These contractual provisions state that disputes between the contract’s signers and the facility will be decided by an arbitrator (or panel of arbitrators) instead of in front of a judge and jury.
Some legal experts — particularly those who represent the injured or the loved ones left behind after a wrongful death in a nursing home — feel that arbitration clauses unfairly suppress the Constitutional right of a plaintiff to have his grievance heard by a jury of his peers. Others feel that nursing home admission contracts and their embedded arbitration clauses are patently unfair, since they make it seem like someone seeking admission to the facility must accept the terms or else be denied entrance.
The unfairness argument gains further ground when court filing fees are compared with those for a private arbitrator. Some arbitrators require that a substantial deposit be made — usually a percentage of the damages being sought — before they will hear the case. The lax evidentiary rules in arbitration also make it more difficult to force an uncooperative party to turn over necessary paperwork and records that might prove negligent care.
Unless it is a true emergency — where the patient is in grave danger unless he or she is admitted to the facility right away — have a local elder law attorney review the admission paperwork before possibly signing away your legal rights and entrusting your loved one’s care to someone who might not be trustworthy.