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Nursing Home Residents Sign Away Their Rights

When someone enters a nursing home, there is a mountain of paperwork to fill out.  Sometimes the paperwork is completed by the resident, sometimes by a family member.  The person who is looking in the paperwork may be in pain, or on medications, or confused, or simply overwhelmed.  Completing this paperwork should not be a condition of admission or otherwise there is simply too much pressure to sign the documents, regardless of what they may say.  People should have time to review the documents, ask questions, and have the documents reviewed by a trusted friend or an attorney before signing them.

If you are a person seeking admission to a facility or a family member seeking to place a loved one at a facility, it is wise to ask for all documents that the facility wants you to sign in advance of when the facility wants the signatures.  If you have questions about the documents, you can ask for additional time to review the documents and to have them reviewed by a trusted friend or by an attorney.

Most nursing home admissions documents include an arbitration clause buried somewhere in the paperwork.  Facilities include those provisions to protect themselves, not their residents or their families.  Such a clause waives a right to a jury if the facility neglects or abuses the resident or otherwise causes serious injury or death.  These provisions force residents and their families into private arbitration proceedings that are not open to the public in the same way courts are.  In this way, arbitration allows facilities to keep abuse and neglect private, out of the public eye, and away from other families who are making a decision as to where to place their loved ones.

When residents or families meet with facility staff before admission, if the subject comes up at all, the staff will often explain that the arbitration clause is “just a formality” or that arbitration is less expensive and better for the parties.  Arbitration, in fact, involves the waiver of the constitutional right to a jury trial.  It is far more expensive for the resident or their families than the conventional public court system.

Signing an arbitration clause should be voluntary, meaning that if the resident or family does not sign the clause, the resident will still be admitted to the facility.  If the facility indicates that the arbitration clause must be signed for admission, consider hiring an attorney to address the issue.   Signing an arbitration agreement should not be a condition of admission or a requirement to receive continued care.

If paperwork including an arbitration clause was previously signed, it is possible that the arbitration clause may not be enforceable.  Representing nursing home residents and their families requires an in-depth understanding of the law relating to consumer arbitration.

Corson & Johnson has had success in a number of cases in defeating nursing home arbitration clauses.  Whether an arbitration clause can be defeated in any particular clause may require looking at the mental state or competence of the person signing the paperwork at the time it was signed, whether the person signing had valid legal authority to sign, whether the clause is unconscionable in its formation or substance, or whether there was fraud in the inducement, among other factors.