If you don’t have a Durable Power of Attorney, you need one. If you should become disabled, without this document, your spouse or next of kin may have to go to court to be allowed to do the most routine tasks like paying your bills or admitting you into an assisted living facility after a medical emergency or catastrophic injury. It is important to have a lawyer prepare this document because each state has laws governing what can be in a Durable Power of Attorney. Before signing any Durable Power of Attorney, you need to understand what the document allows your Agent to do for you.
Unfortunately, many lawyers who concentrate in this area of the law use forms that meet the statutory requirements but, because these lawyers don’t litigate, they are not aware of some of the pitfalls these very broad and general grants of power can lead to in certain instances. We litigate cases of nursing home abuse and neglect.
On the admission of any patient to a nursing home or assisted living facility, the person helping to admit the patient (often a relative who has been designated the agent under a Durable Power of Attorney) is presented with a stack of admission papers to sign. In that stack of papers is a document entitled “Arbitration Agreement” or “Dispute Resolution Agreement” or another name. Neither the patient nor the agent is required to sign that document as a condition for admission to a nursing home. However, this document is rarely discussed with the patient or agent and if signed by an agent with a general durable power of attorney, with no restrictions, that agreement will significantly limit what recourse a patient or family may have if the patient (loved one), is abused or neglected and suffers injuries in the facility. The agreement takes away the patient’s right to file a lawsuit or have a jury hear the complaints.
THESE AGREEMENTS SHOULD NEVER BE SIGNED BY A PATIENT OR AN AGENT!!
Admitting a loved one to such a facility is stressful and these documents are rarely read. However, if the Durable Power of Attorney EXCLUDES the authority of the agent to bind the principal (patient) to such an agreement, the agreement is not enforceable.
Every Durable Power of Attorney should contain that exclusion. We have that exclusion in every Durable Power of Attorney we prepare. We include that because we are litigators. We know the real world. We know the bad things that can happen in a nursing home or assisted care facility. We don’t have social workers at nursing homes refer us business!
If you don’t have a Durable Power of Attorney, have a lawyer prepare one for you. They are inexpensive. Be sure your understand what authority you are giving your agent. But be sure that the authority to bind you to an arbitration agreement and to waive your right to a jury trial is EXCLUDED in the document. If your lawyer doesn’t use that in his/her forms, teach your lawyer.