An agreement/ contract with a nursing home on behalf of a loved one is like any other written agreement/contract.  It will be in writing, enforceable and defines – among other things - the legal responsibilities and rights of each party.  Before signing any agreement/contract, one should read it thoroughly and if in doubt it would be advisable to have it reviewed by an attorney.
 
Many contracts contain a ‘forced arbitration clause’.  (Other terms used are binding arbitration, mandatory arbitration, as opposed to “voluntary arbitration”)  The use of forced arbitration clauses in contracts has been a hot topic for a long time. 
 
The National Consumer Law Center (NCLC) recently posted an article titled:  Forced Arbitration Clauses in Nursing Home Contracts May Put Older Adults at Risk
According to the NCLC article (referencing a New York Times article):  “ In essence, a person signs away their constitutional right to their day in court and instead agrees to an arbitration hearing for any grievance”.
 
Under forced arbitration the company can choose the arbitrator and sets other terms of the arbitration hearing,….”
 
The Centers for Medicare & Medicaid Services (CMS) had announced a proposed regulation restricting the use of binding arbitration agreements by nursing homes and importantly would ban admission to a nursing home conditioned on signing a binding arbitration agreement. (See Federal Register below)
 
By accessing the link below of the National Consumer Law Center (NCLC), you can read at length the webinar documents entitled: Nursing Home Admissions Agreements: A Discussion of the Unfair Terms in the Agreements Presented to Elders on Entering a Nursing Home
Eric Carlson, Directing Attorney, National Senior Citizens Law Center and David H. Seligman, Irving Kaufman Fellow, National Consumer Law Center Jessica Hiemenz National Consumer Law Center  (April 2, 2014) https://www.nclc.org/images/pdf/conferences_and_webinars/webinar_trainings/presentations/2013-2014/nursing_home_admissions_agreements_webinar.pdf
 
Additional Reading:
 
Modern Healthcare.  An end to mandatory arbitration agreements in nursing homes? By Lisa Schencker  | (July 17, 2015)_  is an article that thoughtfully presents the issue of voluntary/mandatory/binding/forces arbitration agreement clauses in nursing home residential agreements.
 
 
Deal Book - Pivotal Nursing Home Suit Raises a Simple Question: Who Signed the Contract?
By Michael Corkery and  Jessica Silver-Greenberg (Feb. 21, 2016)
 
 
Bifocal. A Journal of the ABA Commission on Law and Aging. Volume 36: Issue 6. Should CMS Prohibit Arbitration in Nursing Home Admission Contracts? By Erica F. Wood
About the Author: Erica Wood is Assistant Director at the ABA Commission on Law and Aging in Washington, DC.
 
The Federal Register  - Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities  A Proposed Rule by the Centers for Medicare & Medicaid Services on 07/16/2015
 
 
FINAL WORD:  As with any other written agreement/contract, it is advisable to have the contract reviewed by an experienced attorney prior to signing the document so that you can retain your legal rights.
 
Working to Preserve Your Wealth and Protect Your Future…in a Constantly Changing World
 
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Visit my website:  www.attorneybarbaradalvano.weebly.com for more article and helpful infographics
 

 (This article first appeared in 2014 on my website)

As an estate planning attorney dealing with Wills, I am often part of the grief and grieving process of a family.  I become part of the process when the families consult about the Will or estate plan of a recently deceased loved one.  This grieving process is made more difficult during the holiday season, a time that is meant to be a joyful sharing with family, friends and loved ones.
 
Recently, a colleague told me about the sudden death of a friend’s mother, just before Christmas.  The family was close knit and the death was unexpected, making the event even more tragic.  Apparently the mother was admitted to hospital for what was to be a routine procedure; had complications; was later pronounced brain dead and the family had to make the unbearable decision to end life support.
 
Such events bring to the forefront the fragility of life and coping with the unexpected.  The family, in this case, knew the wishes of their mother – her wishes were written, clear, and unequivocal and were to be respected. The mother had legal documents in place to cover the ‘unthinkable’.  My colleague shared that the family, although deep in grief, had faith that the wishes of their mother were being carried out and this gave them some modicum of comfort.
 
Had there been no Medical Directive - the family would have been in the position of trying to “guess” and asking themselves – What would mother have wanted? What do we do? How do we make this decision? In this case, their mother had given them the precious gift of knowledge – knowing precisely what her wishes were in the situation.
 
Often the best gift we can give family and loved ones is this knowledge – the explicit knowledge of what we want them to do; what action to take and how to confront the ‘unthinkable’.
 
I, personally, have found great help in the writings of Amy Florian.  Her book titled “No Longer Awkward: Communicating with Clients Through the Toughest Times of Life” (Amazon: Jan. 30, 2014) offers answers to the question: “How do I support a grieving client?”
 
Amy Florian is CEO of Corgenius (www.corgenius.com) a unique service for professionals.  According to her website: “With exceptional grace, good natured humor and rock-solid science, we teach service professionals how to support their clients in times of grief, loss and transition.” 
 
“Working To Preserve Your Wealth and Protect Your Future…in a Constantly Changing World”
 
Please read my full Disclaimer and “How I Can Help You”
 
Visit my website:  www.attorneybarbaradalvano.weebly.com for more articles, infographics and my bio

If you are a caregiver or family member of someone with a diminished level of capacity and capability you understand the feeling of walking a ‘tightrope’.  The daily challenges are enormous and it is a balancing act that you perform every day.  You balance your caregiving responsibilities with other life events and family issues.  You balance financial necessities. As a family member, it is often a balancing act to determine how much help to offer and how.  It is also a question of how to access the services that you need and to secure the “safety net” in case something happens to you – the caregiver.  As a family caregiver your instinct is to protect the loved one from harm, from indignities and from those who might take advantage of them.

  Our friends at the National Consumer Law Center (NCLC) are offering a free webinar titled: The Fine Art of  Balancing Protection with Self Determination.  The webinar is on Sept. 22, 2015 at 2PM (EST) 

You must register for the free webinar. 

Log onto NCLC website www.nclc.org  and if you have questions you can send an email to :   trainings@nclc.org

According to the webinar information: “This session will talk about recognizing the signs and signals of abuse, neglect (self-neglect) and exploitation, tools to maximize communication with persons with differing abilities, and promoting self-determination and choice through supported approaches that mitigate against risk and empower individuals…”

 Presenters will be David Godfrey (Senior Attorney, American Bar Association Commission on Law and Aging) and Jonathan Martinis (Legal Director, Quality Trust for Individuals with Disabilities)

Working to Preserve Your Wealth and Protect Your Future...in a Constantly Changing World

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For those nearing the age of 70 ½ an insightful article from the Women’s Institute for a Secure Retirement (wiserwomen.org) is worth a read.  The article can be found in the Winter 2014 Issue.  There are tax rules for those individuals who have IRA’s and must start to take their required minimum distribution at the magic age of 70 ½ years.  The rules are not too complex, but if you miss taking the distribution, there are tax consequences. 

In the same issue there is a Tax Tip on page 5 about the Saver’s Tax Credit that is certainly relevant as the tax filing deadline approaches.

Another fascinating article “Living to 100…” states that at age 65 more than half of Americans will need to fund a retirement that could be longer than the 14 to 17 years of “average” life span. (Beth Pickenpaugh, actuary and financial planner contributed the article).  In other words, many of us can expect to live longer than 81 (65 plus 17).

There are two websites to help you calculate life expectancy – www.livingto100.com and a table published by www.health.ny.gov.

The interesting point about the table published by New York is that it shows that the older you live, the longer you are likely to live.  That is, if you have reached the age of 86, the chances of reaching the age of 88 or 89 are statistically very good.

Baby Boomers are coping with this longer life expectancy by retiring later – or not at all. They are also utilizing Estate Planning methods to secure assets for their future benefit and the benefit of their children and grandchildren.

Working to Preserve Your Wealth and Protect Your Future in a Constantly Changing World.

This post has been brought to you by the Law Office of Barbara Ann Dalvano.  This information is provided for educational purposes only and to generate ideas, provoke thought and facilitate conversation.  It is not intended to create an attorney-client relationship.  Each person’s situation is different and this information should not and cannot be relied upon as legal, tax, accounting or investment advice. 

Barbara Ann Dalvano, Esq.
Phone and Text Message:  (719) 963-2933
Email Address:  barbaradalvano@yahoo.com

Feel free to visit our website at www.attorneybarbaradalvano.weebly.com.