Written by attorney Judith A. McDougall-Flynn

Before You Sign Those Nursing Home Admission Documents (Massachusetts)

I was consulted recently by a woman (Mary) whose mother has mid-stage dementia and is presently in a rehabilitation facility due to some physical issues. The facility notified the family that mom is no longer making rehabilitative progress and that she is now in need of skilled nursing care. Mary and her siblings wanted to place Mom at a particular nursing home, but the facility would not accept her until the family signed all of the admission documents. Mary was 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 about an hour, and could save you a significant amount of money, time and stress..

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