Legal Question in Elder Law in California
neutral arbitration
if a family relative (brother) signs a nursing homes release for the patient to give up his court or jury trial is it valid. this was done 1 week prior to the patients admission into said nursing home. there was NEVER any written or implied or verbal authorization whatsoever. thank you
3 Answers from Attorneys
Re: neutral arbitration
Probably not.
Re: neutral arbitration
This is a complicated matter. Here are a few recent decisions addressing the fairness in arbitration / nursing home contracts.
Call or e-mail me to see if I can be of assistance.
Thanks.
Jim Swiderski, Esq.
Sister of Nursing Home Patient Did Not Bind Patient to Nursing Home Agreement
Mariner Health Care, Inc. v. Ferguson, No. 4:04CV245-D-B, 2006 WL 1851250 (N.D. Miss. June 30, 2006)
View Nursing Home Patient Not Bound By Arbitration Agreement Signed By Family Member Who Lacked Authority
Mariner Healthcare, Inc. v. King, No. 4:04CV263, 2006 WL 1716863 (N.D. Miss. June 19, 2006)
View Signatory�s Capacity to Consent to Arbitration in Nursing Home Dispute to be Decided by Court Prior to Compelling Arbitration
Washburn v. Beverly Enterprises-Georgia, Inc., No. CV 106-51, 2006 WL 2728627 (S.D. Ga. Aug 03, 2006)
View An Arbitration Clause in a Nursing Home Agreement Is Invalid Unless the Signatory Has Actual or Apparent Authority to Sign on the Resident's Behalf
Buie v. Mariner Health Care, Inc., No. 3:06cv499-WHB-JCS, 2006 WL 3858330 (S.D. Miss. Dec. 29, 2006)
View Court Rejects Unconscionability Challenge to Nursing Home Arbitration
Manley v. Personacare, No. 2005-L-174, 2007 WL 210583 (Ohio App. Jan. 26, 2007)
View Mississippi Law Authorizes Health Care Surrogates to Agree to Arbitration on Patient's Behalf
Covenant Health Rehab of Picayune, L.P. v. Brown, 949 So.2d 732 (Miss. 2007)
View Health Care Power of Attorney Authorizes Attorney-in-Fact to Agree to Arbitration on Patient's Behalf
Hogan v. Country Villa Health Services, 55 Cal. Rptr. 3d 450 (Cal. Ct. App. 2007)
View California Court Finds That Husband Did Not Have Statutory Authority to Enter Arbitration Agreement on Wife's Behalf
Flores v. Evergreen at San Diego, LLC, No. D048002, 2007 WL 738964 (Cal. Ct. App. Mar. 13, 2007)
View Texas Court Finds That Medical Power of Attorney Did Not Include Authority to Enter Arbitration Agreement
View Nursing Home Resident's Husband Did Not Have Authority to Enter Arbitration Agreement on Her Behalf
Ashburn Health Care Center, Inc v. Poole, No. A07A0572, 2007 WL 1764217 (Ga. Ct. App. June 20, 2007)
Re: neutral arbitration
If you are asking if a business can demand patients sign an arbitration clause waiving right to court and trial before accepting them as patients, the answer is yes. Can a family member do so for the patient? Probably not without Conservatorship or Power of Attorney over the patient; unless the patient is incompetent and the relative is in charge of the patient's care. Every case will depend upon the facts. It will only come up if the patient later claims to have a lawsuit and the business claims the arbitration clause is binding. With all that said, if you think the patient or other family members needs legal counsel, feel free to contact me.
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