Few people want to reside in an assisted living facility, nursing home, continuing care retirement community, or other long-term care facility. Most people prefer to reside in their homes with the familiar presence of their family and friends. After one suffers a chronic or acute illness, that is not always possible.
Elder law attorneys advise their clients and their families about available care options to assist in the development and documentation of the client’s care plan, and to assist in its implementation. When the care plan includes residency in a long-term care facility, the facility will require the client to sign a binding contract known as a facility admission agreement. The agreement will include aspects of both a lease and also a healthcare service agreement.
To minimize the likelihood of disagreements, misunderstandings or unintended consequences, the client and the client’s family should have an elder law attorney review the facility admission agreement prior to the client signing it. The following are some of the provisions that an elder law attorney should explain to the client and, if necessary, negotiate with the facility:
Representative liability/responsible party provisions and liability. For example, is a child signing the facility admission agreement on behalf of the child’s parent liable for the cost of the care? The answer is maybe. The child may be liable based on the terms of the agreement, statutory duties of support, or transferee liability.
Arbitration provisions. Does the agreement provide that the client is waiving the client’s right to seek the assistance of a court for injuries or breach of contract? Frankly, there is no good reason for a resident to sign an arbitration agreement at the time of admission.
Definition of services provided and cost. Does the agreement describe in sufficient detail the extent and nature of the services that the facility will provide and the cost of those services? Does the client expect services that the facility is not able to provide in an acceptable manner?
Medicaid. Does the facility accept Medicaid reimbursement if the client’s funds are spent down?
Transfer of asset restrictions. Does the agreement impose transfer of asset restrictions?
Discharge? What needs of the client will trigger a facility request that the client move, as the client is beyond the staffed level of care? If the facility discharges the client, what alternative settings for care are available?
Elder law attorneys should review long-term facility agreements, and they should discuss the responsibility and liability for the cost of care with the client’s family. An Estate Planning and Elder Law Firm can advise their clients and their families about available care options to assist in the development and documentation of the client’s care plan, and to assist in its implementation.
Daniel O. Tully, Esq.