Beware of the Binding Arbitration Agreement in the Nursing Home Admission Packet

February 18, 2014

Filed under: Estate Planning,Financial,Health Care Facilities — Alexis @ 9:50 AM

Imagine that you’re being admitted into a nursing home.  You are having trouble making decisions and managing your affairs at this point.  Luckily, you planned ahead and have a Health Care Proxy in place.  Your agent fills out the reams of paper that seem necessary for your admission, including a binding Agreement to Arbitrate.  That means that if you ever have a dispute with the nursing home, you are agreeing in advance to use binding arbitration, and not a jury trial, to settle that dispute.  Your agent signs it, figuring you can’t be admitted without it.  All is well until a dispute arises and – boom – you’re stuck heading to arbitration.

While it may sound attractive, arbitration tends to favor the “big guys” – in this case, the nursing home and health care providers.  For you as the patient, or “little guy,” jury trials are far more consumer-friendly.

Good news, though – in January, the Massachusetts Supreme Judicial Court (our highest court) decided the Johnson case, which says that the decision to sign an arbitration agreement isn’t a health care decision.  And because the agent named in your Health Care Proxy can only make health care decisions on your behalf, if he or she signs an arbitration agreement, a court will find that agreement void.

But what if you have both a Health Care Proxy and Power of Attorney in place?  This difference is key because the agent named in your Power of Attorney CAN agree to binding arbitration on your behalf.  A Power of Attorney gives more business-related decision-making powers than a Health Care Proxy, so the agent named in your Power of Attorney can make financial and legal decisions on your behalf.  Agreeing to arbitration is not a medical decision but it is a legal one, so it’s one the agent named in your Power of Attorney CAN make.

As I mentioned, arbitration tends to favor the nursing home if a dispute arises.  But how can you protect yourself?  First, most nursing homes do NOT condition admittance on whether or not you (or your agent) agree in advance to arbitration.  Simply refuse to sign the arbitration agreement within the admission packet, or if it is part of a larger document, cross out those paragraphs.

Also, your Power of Attorney document should make it clear that your agent cannot agree to binding arbitration before a dispute arises.  When a dispute happens, arbitration may be your best option – but you don’t want to make that decision before you know the facts.

And if you don’t have a Health Care Proxy or Power of Attorney yet?  Put them in place now.  It won’t take much time at all.