Wyoming Supreme Court holds that Agent under Power of Attorney had authority to consent to arbitration in nursing home admission contract

 

It is not uncommon for nursing home admissions contracts to include provisions requiring the resident to consent to binding arbitration of any dispute. In this recent case in Wyoming, the question was the enforceability of an optional arbitration clause. The nursing home admission contract for Aletha Boyd was signed by her Agent under a General Durable Power of Attorney (DPOA) which expressly gave the Agent the actual authority to perform all acts “without limitation” on behalf of the principal (Boyd). In bold print, the contract stated that the resident had the option at that time of whether or not to consent to arbitration. The Agent consented to arbitration at the time of signing. 

Ms. Boyd died within two weeks of admission, allegedly due to negligent nursing care, and her Estate sued the facility, Kindred. Kindred filed a motion to compel arbitration pursuant to the signed admissions contract. The motion was denied by the trial court, but on appeal, the Wyoming Supreme Court reversed and ordered that the case be sent to arbitration. The Court’s rationale was that the authority to consent to arbitration was encompassed within the expressed broad power of the DPOA the arbitration clause was not unconscionable because it was optional, and the fact that the designated arbitrator was no longer in service did not void the contractual provision.  The case is called Kindred Healthcare v. Boyd. 

When selecting a nursing home, the applicant or their duly authorized Agent under POA or legal guardian is often faced with making an urgent decision, reviewing lengthy detailed contracts, and making arrangements for this move under time pressure. Senior care planning requires careful consideration of the rights and obligations of the parties involved, and legal advice is helpful to ensure that the individual and family understand what they will be facing. 

Call us for help  in senior care and estate planning, elder law and nursing home admissions issues …. 732-382-6070

 

Federal Law limits involuntary discharge of nursing home residents

The federal  Nursing Home Residents’ Rights Act protects residents against arbitrary, involuntary discharge by specifying only 6 grounds for discharge..And above all,  even when one of those 6 bases exists, a nursing home also has the duty to make a safe discharge.   A nursing home cannot involuntarily transfer a Medicaid resident unless there is another placement available which is acceptable to the Department of Health and Senior Services. NJAC 8:85-1.10(d), (e). This means that the facility cannot transfer the obligation of care to a family member of the resident who refuses to accept that obligation. The resident cannot be escorted to the door.

Discharge is limited to the following circumstances: 1.  The transfer is necessary to meet the resident’s welfare, and the resident’s welfare cannot be met in the facility. 2. The resident’s health has improved such that long term care in the institution is no longer necessary.  3. The safety of individuals in the facility is endangered.  4. The health of other individuals in the facility is endangered. 5. The resident has failed after reasonable and appropriate notice, to pay for a stay (including applying for Medicaid). 6.The facility closes.

On November 7, 2011, the Ombudsman for the Institutionalized Elderly in Trenton issued a Notice to all nursing home administrators reiterating the limited bases on which residents could lawfully be discharged, and reminding them that the notice must specifically cite one of these reasons. Here it is.Other justifications, such as behavioral problems or failure to follow facility policies, are not sufficient reasons under federal law.

The facility must provide the resident with at least 30 days written notice including the specific date of the intended discharge, unless the facility is closing, in which case, 60 days’ notice is required. Also the facility must specifically identify the exact place to which the resident will be transferred.

A Medicaid recipient or applicant would appeal the planned discharge through the Division of Medical Assistance and Health Services Fair Hearing Unit, P.O. Box 712, Trenton, NJ 08625, (609) 588-2655. A private pay resident would initiate an action for an injunction  in Superior Court, Chancery Division in the vicinage where the nursing home is located.

When it comes to senior care planning it’s vital that the family advocate become familiar with these resident’s rights. Forewarned is always forearmed.

If your loved one has received an involuntary discharge notice, spring into action. Sometimes a team meeting can resolve the problem.

Call us for representation on involuntary discharge emergencies and other nursing home issues … 732-382-6070