Watch Out For Nursing Home Arbitration Agreements

There is a lot on your mind when your family decides to move a family member into a nursing home. From navigating interfamily issues and more practical concerns, like what to do with your loved one’s former home, simply getting to move-in day can be stressful.

When you get to the nursing home and meet with the administration, they will ask you to sign a stack of roughly two dozen documents. These documents cover a range of subjects, including your legal rights in the event your loved one is harmed under the facility’s care. This form is known as the arbitration agreement, and you may have come across them in other situations throughout your life. An arbitration agreement generally waives your rights to a jury trial and to sue the other party.

Why Nursing Home Arbitration Agreements Are Bad

If you sign the arbitration agreement and your loved one is harmed by the facility’s negligence or suffers a wrongful death, you have waived your right to a jury trial. Some of these agreements limit the amount of damages you can claim and what damages you may bring. If you sign the agreement your claim will be decided by an arbitrator or team of arbitrators. These arbitrators are often people like lawyers and judges, but they are usually less impassioned than juries. Because of this, awards are typically lower than if a jury decides your case. However, this is what these facilities hope to achieve when they have you sign an arbitration agreement.

One New Mexico family lived this in July 2020 when an 87-year-old resident arrived at a facility on oxygen with a severe case of COVID-19. The facility handed her the stack of paperwork for her to sign, including the arbitration agreement, despite her disoriented condition. When the family realized what the facility asked her to sign, they were upset and were fortunate to have the resident discharged with no harm to recover at a different facility.

What Should You Do?

First, realize that you are NOT obligated to sign the arbitration agreement. Many times the agreement will actually say that your care is not dependent upon you signing. If that is the case, then you can decline to sign it.

Additionally, given how stressful moving a relative into a nursing home can be, it’s helpful to have an attorney review any documents you are asked to sign upon arrival. These facilities undoubtedly have attorneys craft these documents for a reason and having your own legal advocate looking out for your best interest can help level the playing field.

While it may seem most convenient to just sign the paperwork given to you, it’s often best to slow down and make sure you understand exactly what you are signing in the event of the worst-case scenario. Hopefully, you never need to use it anyway, but you will be glad you or your attorney reviewed the documents first.