New York Estate Planning & Elder Law Blog
Not all long-term care facilities are alike. Quality varies considerably from home to home. Some facilities have an adequate number of caregivers, access to amenities and resources, and generally help residents enjoy their golden years. Other homes do not. Ensuring that you or a loved one has options to find the facility that best fits your needs, it is critical to plan ahead of time. That is where elder law attorneys come in.
Far too many families are forced to hastily chose a facility because of a sudden disability. When that happens, the chances greatly increase that the home will not provide the best environment for thriving, potentially risking neglect and abuse. Not only that, but in the rush to admit a loved one, many end up signing away legal rights to seek accountability via the civil justice system in the event of mistreatment.
Understanding Nursing Home Arbitration Agreements
When a new resident enters a long-term care facility, they are always asked to sign a stack of documents. Buried in the stack is often a form which asks the elderly resident to agree to use “arbitration” to resolve any future disputes. Not appreciating the significance of this form–most sign away. But the consequences of doing so may be severe.
A new editorial report was released earlier this month which took a harsh look at these forced arbitration agreements. The report examined the agreements in all contexts–not just nursing homes. But it was noted that long-term care facilities use these agreements to minimize their liability following cases of neglect and abuse.
Arbitration is a form of alternative dispute resolution. In most cases, defendants, particularly large companies and industries fare far better via arbitration that in the traditional setting. As the report argues, “Forced arbitration eliminates all of the checks and balances of the civil justice system, including the right to a public forum, the right to demand information from a corporation, the right to a written record, and, most importantly, the right to trial by jury. Arbitrators are not bound by law and their decisions are not subject to any meaningful judicial review.”
Planning ahead often avoids the trap of signing an arbitration agreement unwittingly. When elder care planning is done, families are able to investigate many options and weigh the benefits of each. This allows time to consider whether the facility requires signing an arbitration agreement or if it is voluntary. If no planning is conducted, families frequently have no time to investigate options, signing away important legal rights without even realizing it.