Difference between revisions of "Common Legal Matters in Contracts in Residential Care Admission and Transfer"

There are a number of other provisions that frequently come up in the written agreements that need careful attention. Prospective residents may be asked on admission if they have care planning documents in place that the Operator should be aware of (such as an advance directive, power of attorney, representation agreement). This information can be helpful for the Operator to know and document. However, operators cannot require or give people the impression that they must have planning documents as a term of admission or as a term of the contract. A substitute decision-maker also cannot give “blanket consent” to future health care decisions, including medications or restraints.  See Chapter Six (“Capacity & Consent”) and Chapter Seven (“Substitute Decision-Making”).

One worrisome trend is to tell prospective residents who do not already have a Representation Agreement or other appropriate legal document at the time of admission that they need to “nominate (choose) someone to act on your behalf in case you are unable to make decisions for yourself”. These “nominations” are wrong for many reasons. The instructions make it sound as if the resident must do it, and do it at the time of admission. The nominations would have no legal basis unless they met the statutory requirements for the actual legal documents of representation agreement, enduring power of attorney, etc. Plus, they can give Operators a false sense of security, believing that they can legally turn to someone else if the resident becomes unable to make decisions for him or herself.

Problems can arise even when some form of written consent exists. For example, an Operator may erroneously try to rely on forms from another facility as proof of a person’s consent to admission to this facility. An Operator may erroneously try to rely on a term in an admissions agreement as proof that a person had authorized future medical treatment.