A simple truth that has been true as long as people have banded together in a society is that no one considers the details of a proposition until it is upon them. This is never clearer than when people enter into their final years and are placed or place themselves in an assisted-living situation commonly known as a “nursing home.” While this is often the only sensible situation for people moving into their twilight years, giving them direct access to trained and compassionate professionals to support them in their decline, the almost-standard inclusion of arbitration and mediation clauses in nursing home contracts has become a thorny issue for the courts.
The Crux of the Problem
At the center of the problem is the question of who, precisely, is bound by the contract. Common sense might dictate that the arbitration clause agreed upon between the nursing home in question and the individual binds only those two entities – you cannot, after all, be bound by contractual terms someone else signed.
However, the practical consequence of such clauses is that the family also is bound. And what happens when the individual passes away and their estate and/or family brings a dispute regarding their care, their death, or billing details? Is the estate or family bound by the arbitration clause signed by the individual? From the point of view of the facility, certainly. From the point of view of the estate, usually not.
Confusion in the Courts
Complicating the matter is the fact that the courts have not yet effectively weighed in on this matter. Although suits have been brought, the courts so far have not been unanimous in their decisions. The recent decision handed down by the Eighth Circuit of the Court of Appeal of the United States known as “GGNSC Omaha Oak Grove, LLC v. Payich” found that the son of a deceased resident at a nursing home could indeed sue despite the fact that his mother had signed an arbitration agreement with the facility. On the other hand, the Florida Supreme Court recently found in its ruling on “Laizure v. Avante at Leesburg, Inc.” that the arbitration clause had to be enforced because the estate of the deceased was an extension of the deceased and thus bound by their agreements in life.
This is a thorny issue that will take more time to resolve. In the meantime, when entering a loved one into a nursing home or similar situation, be certain to be clear on what they are agreeing to. Again, in such emotional circumstances, mediators or facilitators are key to a civilized, respectful resolution of these issues.
