Massachusetts attorneys, Bernard J. Hamill, Quincy

Use Power of Attorney clause to defeat Mandatory Arbitration Agreements?

Warning: Many Nursing Homes are now "sneaking" mandatory arbitration agreements into documents unsuspecting residents have to sign upon admission.

Arbitration agreements present potential benefits as well as drawbacks. The "rationale" promoted by Insurors for using arbitrations are usually two fold: (1) they are cheaper than a lawsuit, and (2 ) they are faster. Offsetting those potential advantages is the limitation placed on "discovery" that arbitrations often impose. Since admission arbitration agreements deprive one’s access to a jury of peers and almost all discovery, they have a potential limiting effect on the ability of an injured resident to effectively prosecute a claim for negligence or wrongful death. Arbitrations without discovery would impair an injured residents ability to prove wrongdoing on the part of the Nursing Facility.

They are not always fast. Unscrupulous defense lawyers can delay the process by refusing to agree on the selection of an arbitrator as well as the time and place for the hearing. Another consideration you must consider is that the discovery process afforded by arbitrations is limited. Many arbitration agreements allow only limited discovery. If your case is complex, any limits on discovery can jeopardize your case. This could restrict the rights of a resident suffering an injury or wrongful death from developing the necessary evidence to prove a claim against the Nursing Facility. Some individual Arbitrators get most of their business from large Nursing Home chains and insurance companies and insurance defense firms so they might be reluctant to order a significant decision against a Nursing Home for fear that they won't get future business from them. So selection of a fair and impartial Arbitrator is important.

If an arbitration agreement is not for you: One way to defeat the increasing practice by Nursing Homes of sneaking mandatory pre-injury arbitration agreements in their admission documents is to arm residents in advance with a properly worded Power of Attorney document as part of their estate plan prior to going into a long term care facility. The objective would be to withhold from the residents health agent any power to sign away their rights by signing such a document at the time of the Nursing Home admission and before any wrong has been committed. The wording in the Power of Attorney would not necessarily deprive the resident of the choice to submit to arbitration at a later date, it would just prevent his health care agent from eliminating the option of a lawsuit at the admission stage. That is, Arbitrations could be chosen ONLY after an injury had occurred; they could NOT be entered into prior to an injury or at the time of the admission to a nursing facility. It would be up to the resident or their representative to decide later whether to file suit or go to arbitration. In any event reserving the right to file suit will afford the resident an opportunity for discovery without which success at an arbitration would be problematic. After discovery was completed, the residents agent could always consider the risk/reward of an arbitration proceeding.

Those are the facts: You decide. You might want to include this protective clause in your power of attorney. Get your Power of Attorney form here!

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