The lifespan of the average human is growing as the years go by. Improvement in health care, a better understanding of healthy living and diet, and an international decrease in the population of those living in poverty means a better quality of life for most. However, because people are living longer, their ability to take care of themselves often wanes in their later years. That is when the children of these unfortunate folks must make a difficult decision: whether or not to place their loved ones in assisted living. There are superb facilities that exist that are well-staffed and well-funded. However, there are unscrupulous people running many facilities, and one way they can protect themselves and increase the profits of the owners of the facilities is the mandatory arbitration agreement.
Admission to a Nursing Facility
Whenever someone is admitted to a nursing home, the resident (or the resident’s power-of-attorney) must sign a contract. Contained in the contract is the terms of the agreement, how much the resident will pay to stay in the facility, and the rights and responsibilities of both the resident and the facility. Often times, however, a clause in the contract states that any dispute (including claims of abuse) between the resident and the facility will be settled through mandatory binding arbitration. Of course, the facility does not want to be sued, and arbitration is less time consuming than trial. However, these clauses are included in the contract for the sole benefit of the facility.
Mandatory Arbitration and the Resident
One assumption that many people have is that arbitration is cheaper than trial. For those at the helm of nursing homes, this is true. Residents who are the victims of abuse in a nursing home are consistently awarded less in damages through arbitration than those who are able to sue. Further, binding arbitration does not afford the resident the opportunity to fully develop their case, forcing the arbitrator to make decisions on less than all of the facts.
Why, then, do residents agree to mandatory arbitration? The simple fact is that they often do not, at least willingly or with a full comprehension of their actions. It is not unheard of for residents to be tricked or coerced into signing a mandatory arbitration agreement without the knowledge of their families. Also not unheard of is the administration of a nursing home taking advantage of the emotional state of the resident’s power of attorney, often a child or spouse, to get them to sign a contract without representation or even having a chance to read it.
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