When considering a skilled nursing home or supportive living facility, it is essential to have an attorney review the contract to remove the language that is not in compliance with federal and state law, the state administrative code, Public Policy and the U.S. and Illinois State Constitutions.
Some of the contract provisions will have Patient’s Rights stated that are actually reworked to deny their rights in favor of the facility. There are provisions that are silent about rights a resident has under the Illinois Nursing Home Care Act, that need to be incorporated by reference in an attached memorandum lest it be inferred that the elder waived their rights under law through signing the contract. The Power of Attorney Agent may also be pressured into quickly signing on behalf of their loved one and sign guarantor provisions that are not in compliance with the law and can bring liability upon themselves personally.
The contract often has an arbitration agreement that is not required to be signed, but the Power of Attorney Agent may sign it under pressure from the facility. This is important to remove because it is where the facility seeks to avoid a jury trial in the event of injuring the resident or being found at fault for causing a wrongful death. Often, people fear retaliation when signing an edited contract, and I will advocate for the elder and their Power of Attorney Agent with my written memorandum citing the provisions that do not comply with the law, or remain silent on an elder’s rights under law. There are times when a Power of Attorney could take an elder’s income or assets and the facility does have reason to need to protect itself from fraud and elder financial exploitation. The main reason for this contract review is to prevent the elder or their family from being drawn into court for an alleged contract breach at a later time when it could have been addressed through removing the offending provisions from the outset.
Assisted Living facilities and Continuing Care Retirement Communities typically do not accept Medicaid payments and thus only need to comply with the laws pertaining to their type of facility. I do review these contracts for clients, but I let them know that their rights are less robust under the law in regards to these contracts. It does help to have a clear understanding of what rights you may be relinquishing and what restrictions pertain to these facilities before signing the contract. Negotiating with these facilities is also limited, due to the lower standard of regulation for this type of facility.
