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Supreme Court may change rules to better protect elder rights

There could be big changes coming to the way that nursing homes have traditionally operated, thanks to a case being heard by the United States Supreme Court.

In the past, when a relative would check an elder into the nursing home, he or she would often be handed a sheaf of papers to sign as part of that process. Hidden somewhere in that pile of papers, there often lurked an arbitration agreement.

The arbitration agreement kept those who discovered that their elderly relative had been abused -- or even died as a result of neglect -- from suing the nursing home either personally or on behalf of the deceased's estate.

In the past, the courts have sided with nursing homes, saying that the arbitration agreements were binding on the senior involved, even if that particular relative lacked a power of attorney or guardianship authority over the senior.

The Kentucky Supreme Court threw aside the arbitration clause in a recent case involving a wrongful death in a skilled nursing unit where someone who had no power of attorney to do so signed the arbitration agreement on behalf of the victim. The appeal from the skilled nursing care unit is what brought the case before the Supreme Court.

Experts indicate the Supreme Court is likely to bar future arbitration agreements. Federal regulators are already trying to push through changes that would stop the practice in the long-term care facilities that receive Medicare and Medicaid from forcing residents to agree to arbitration before a dispute even arises, indicating that there's growing dissatisfaction with this practice overall.

Court watchers noted that at least one Justice stated that the arbitration agreements in these cases were vastly dissimilar to those forced on people who want cable television service -- these concern people's lives and are giving undue authority to people who have no legal right to make binding decisions on behalf of the elderly people involved.

Cases like this illustrate how difficult probate litigation can sometimes be, especially when there's a lack of clarity about who had the right to make agreements on behalf of the deceased. Anyone thinking ahead toward the possibility that they may need someone to make decisions for them should consider talking to an attorney now in order to best preserve their wishes in the future.

Source: McKnight's, "SNF case may shift Supreme Court's stance on arbitration," Emily Mongan, April 05, 2017

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