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 Dear
Attorney Flynn:
My mother has mid-stage
dementia and is presently in a rehabilitation facility due
to some physical issues. The facility has notified us that
she is no longer making rehabilitative progress and that she
is now in need of skilled nursing care. My three siblings
and I all live on the south shore and would like to place
Mom at a particular nursing home, but the facility will not
accept my mother until we sign all of the admission
documents. I have some concerns about some of the things
they want us to agree to, but I am afraid the facility will
not admit my mother if we don’t sign the agreements. Do we
have the right to refuse to sign these documents?
Sincerely, Pressured in Plymouth
Dear Pressured:
You are wise to trust your instincts and very smart to
seek a professional review of the agreements prior to
signing. It can be an overwhelming experience to place a
loved one in a nursing home. While family members are most
vulnerable at this time and often look to the facility for
guidance, this is a time when independent representation is
crucial. Most facilities stay within their rights when
seeking the agreement of potential residents and their
family members prior to admission. As with all professions,
however, there are always a few “sour” apples in the bunch.
Some agreements may contain terms that are in clear
violation of federal or state law. These provisions would
not be upheld if a dispute ended up in court, but the
inclusion of such language in the agreement misleads the
consumer about the rights and obligations of the parties.
The key is to know your rights. Following are some common
issues to be aware of when signing admission contracts:
1. Facilities may not require a family member or
other third-party to guarantee the resident’s payment or to
sign as “voluntary responsible party” as a condition of the
resident’s admission. Family members and others who are
signing these documents as agents under Durable Powers of
Attorney or as Guardians should always sign as “Name, as
DPOA and not individually” or “Name, as Guardian and not
individually.”
2. Facilities may not force you to agree to
arbitration in the event of a future dispute. If you do sign
such an agreement, however, it will likely be upheld in
Court. The Supreme Judicial Court recently upheld the
validity of such arbitration clauses, even if the resident
or family member did not read or understand the terms.
3. Facilities may not condition admission on the
resident’s agreement to pay all attorneys fees and costs
incurred by the facility to collect payment from the
resident.
4. Be aware of clauses that attempt to impermissibly
limit facilities’ responsibility for the residents’ personal
property or waive the facilities’ liability for personal
injury to the resident.
5. Many contracts are silent on residents’ rights in
the event of involuntary discharges or transfers. Be aware
that the facility may only transfer or discharge a resident
if a) it is necessary for the resident’s welfare; b) the
resident’s health has improved sufficiently so he no longer
needs the services provided by the facility; c) the health
or safety of individuals in the facility would be
endangered; d) the resident has failed, after reasonable and
appropriate notice to pay for a stay at the facility, or e)
the facility goes out of business. Language to the contrary
may be in violation of federal and state law.
This is just a small sampling of the common issues to be
aware of prior to signing an admission agreement on behalf
of a loved one. A review of the proposed documents by an
elder law attorney typically takes only ˝ hour to an hour,
and could save you a significant amount of money, time and
stress. Good luck with your mother’s placement.
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