Suppose your parent can no longer safely live alone at home and now needs nursing-home care. You are stressed and anxious. The nursing home puts a twenty-page contract in front of you. You’re tempted to flip straight to the last page and sign, just to get it over with.
Do not do this. You could be agreeing to pay, out of your own pocket, many thousands of dollars for your parent’s care.
The better way to approach the situation is to get your parent admitted and then, before you sign the contract, bring it to us for our review and guidance. Once your parent has moved in, he or she cannot be evicted just because you want to negotiate the contract.
But if the facility will not accept your parent without having a signed contract, then sit down and take a few deep breaths. Read the contract carefully. Make a list of questions and ask a facility representative to explain. Ideally, that person would sit with you as you go through the document. If they are unwilling to do that, how willing or helpful will they likely be when you have a concern about your parent’s care? Don’t sign until you understand. Here is what to watch out for.
Do Not Agree to be the “Responsible Party”
Do not sign the contract if it requires you to obligate yourself to pay with your own money. Pay particular attention to any language referring to you as the “responsible party” or “resident representative” or “agent.”
Key an eye out for buzzwords such as “co-signor,” “guarantor,” “personally guarantee,” “personally liable,” “private-pay guarantor,” “surety,” or “individual capacity.” Words like these obligate you, personally, to pay if your parent is unable to pay or runs out of money.
If the contract has this language, it does not mean that it’s a bad facility or they are attempting to do something illegal or unscrupulous. It is legal for the facility to require you, if you hold financial power of attorney or are guardian, to pay nursing-home bills from your parent’s money and assets. It is legal to require you to spend your parent’s money on his or her care and not for any other purpose (such as making a gift to yourself or other family members). It is not legal to condition your parent’s admission on your agreeing to pay his or her bills with your own money. The nursing home can ask you to agree – and if they ask, refuse – but you cannot be forced to agree to pay with your own money.
Sometimes the contract is confusing or contains ambiguous language. Do not rely upon the facility admissions person to explain the legalities of the contract to you. They may not understand it either and they have no obligation to look out for your best interest. This is why we recommend that you first bring the agreement to us. We can ensure, on your behalf, that you are not taking on unwanted obligations.
What’s Included in the Daily Basic Rate
The agreement should clearly spell out what services are included in the facility’s basic daily rate. It should also include a list of charges for any services not included in that rate. You know your parent’s needs. Talk through what your parent can and cannot do for themselves with the admissions person and ask whether there would be any additional charges for services that your parent is likely to need.
It's also important to know that additional services are available. Some facilities will limit the type and scope of additional services available to patients in personal care or assisted living. The reason for this is that they prefer to nudge needy residents into skilled nursing at a much, much higher cost. You’ll want a fulsome list of additional services so that you can keep your parent in assisted living or personal care for as long as possible because it's far less expensive than skilled nursing.
Your Parent Must be able to Apply for Long-Term Care Medical Assistance (Medicaid)
The nursing-home contract must not require your parent to waive – give up – the right to seek government assistance like Medicare or Medicaid, nor can it ask your parent or you to sign any statement that he or she is ineligible for those benefits.
If your parent has no money to pay for care, a Medicaid application will be required. The contract may seek your permission to have the facility apply for Medicaid for your parent. You have the right to decline that option and, instead, seek legal counsel to help you apply. We have seen some facilities mishandle Medicaid applications, which wound up being denied when they should not have been.
In any case, though, whoever files for Medicaid, you must cooperate by immediately providing all records necessary for that application.
Do Not Agree to Limit or Waive Your Parent’s Rights
Nursing homes are increasing targets for lawsuits and litigation. As a result, they are trying to protect themselves from liability by including limitation or waiver language in contracts. Some examples include:
a limitation on the home's liability in the event the resident is injured.
a limitation on the home's liability for the resident's personal property.
a provision requiring the applicant to consent to medical procedures.
Provisions allowing the facility to force your parent to leave the facility for any reason. You should not agree to any such provisions except that your parent can be forced to leave the home only if it is necessary for the parent's welfare, the parent's health has improved such that nursing home care is no longer required, the health or safety of other individuals is endangered, your parent unreasonably fails to pay, or the facility ceases to operate.
a requirement that you consent to have disputes resolved via out-of-court arbitration. If you agree, you will be giving up your right to a jury trial if a dispute arises.
Protect yourself. Cross out, and Sign the Right Way
Cross out provisions in the contract that you decline, and put your initials by the strike-outs. You’re allowed to do this. Do not be dissuaded by the admissions person. They probably do not have the authority to reject your edits. If they hassle you, ask to speak to their supervisor.
Be sure to sign the contract only as your parent’s agent. Your signature should read: “[Parent’s name], by [your name], his or her agent.”
To be fair to nursing homes, they are entitled to be paid and they often have difficulty collecting on legitimate debts. Facilities are forbidden from suing to take a resident’s Social Security or pension income. They must comply with strict federal consumer-protection restrictions. Despite these payment hurdles, they must still protect frail and vulnerable people from all manner of harm. They also suffer public hostility, thanks to the misconduct of some bad actors. We always urge cooperation with nursing-home personnel if feasible, because their job is a difficult one.
On the other hand, you and your family have the right to be protected from the excesses of bad actors – or from the imperfections, for example, of the facility mentioned above that misuses the “personally liable” language. Thus, no matter how reputable the facility is, it is good judgment to consult an attorney before you sign an admission contract. If that’s not possible, then take care and time to study the contract, get facility staff to explain it to you, and strike out the objectionable provisions as advised above.
A few moments of care, even despite the stressful circumstances you are surely in at the time, can save you a lot of difficulties later. If you have questions about planning for long-term care for yourself or a loved one we can help. Contact one of our experienced elder law attorneys for help.