Last time, we began speaking about the use of arbitration agreements in nursing home care. As we noted last time, arbitration agreements have come to be increasingly used by facilities in order to manage liabilities stemming from negligence in the care of residents.
While these agreements may be useful for nursing home facilities, they are often not in the interests of residents and their families, who may not know what they are giving up when they sign them. Nor do new residents typically understand how the arbitration process works, or the fact that arbitration contracts very often are written in favor of the nursing home, and that these agreements are always negotiable, regardless of what the facility says in this regard.
Unfortunately, as a recent New York Times article points out, these agreements are typically upheld by state courts on the principles of contract law. In other words, arbitration agreements are usually upheld as long as they meet the basic requirements of a contract. In some cases, though, it may be possible to challenge arbitration agreements on these grounds.
In cases where the resident did not personally sign the agreement, but had an adult child sign it for them, for example, it is possible that a court could see a problem, particularly if the adult child had no legal authority to bind the resident. Another possible situation where an arbitration agreement may not be upheld would be when a mentally incompetent resident signed the agreement. Proving incompetence to enter into a binding contract may be more or less difficult, depending on the circumstances of the case.
Residents and their families who have been harmed by the negligent care of nursing home workers, of course, should always consult with an experienced attorney to have their situation examined and determine their legal options. From there, the next right step can be taken with a zealous advocate at one’s side.
