 | John Gibson
is a senior partner in the Wichita law firm of Gilliand & Hayes. He has been practicing law for nearly 30 years. In addition to healthcare law his practice includes wills, trusts, estate planning, probate and general representation of individuals and small business. Contact information: Phone:
316-264-7321; Fax: 316-264-8614; and e-mail: jgibson@boyerds.com |
Legal
2003-02-01 15:30:00
What to look for in assisted living agreements
: Are there special things to look for in an agreement if you are considering changing your home to an assisted living facility, or if you are thinking about moving a loved one into an assisted living residence?
ANSWER: Yes. Assisted living residential agreements are very important, every bit as important as a contract to buy a house, and they should be carefully reviewed. "Assisted living residence" is a type of housing available for senior citizens and anyone else who needs a little help with their daily routine. It's a mixture of nursing home and hotel. In an assisted living facility residents pay rent for, or in some cases purchase, an apartment or small townhouse unit. The resident receives all the help they need bathing, dressing, getting around and even eating. Their health is constantly monitored to make sure the residents take their medication, do their therapy, and go to doctors appointments. Meals usually are provided, as well as laundry and housekeeping services. An added benefit is that there are facilities for group activities, and group activities are usually conducted by the assisted living facilities to be enjoyed with the other residents.Although there are many good things about assisted living facilities, it is a relatively new service and the industry is still working out the details. That is why it's so important to review the assisted-living residence agreement carefully with your attorney. Many questions should be asked about the agreement. For example, does it spell out exactly what services are included for the base rental rate (or monthly fee in a purchase situation), and which services incur an additional fee? While assistance with bathing and dispensing of medication may be standard services, housekeeping and laundry service may be extras. You must get a detailed list of what services are provided and what charges are made. Even if the contract says that services like housekeeping are included, is the frequency of service within the control of the facility or is there some objective measure of how often the room will be cleaned and the linens changed? Does the contract specify how many meals a day are included? Is there a registered dietician in charge of preparing meals? What does the contract say about termination of the rental agreement or termination of the monthly fee if the resident's condition deteriorates to the point where he or she needs a nursing home or hospital care? In cases where the living unit is actually purchased what are the "sale-back-to-the-facility" requirements and at what sale price?Another area to consider is the extent to which the contract tries to limit the facility's liability for harm to the resident. In some states, including Kansas, such provisions are illegal. The contract also may take away a resident's right to sue the facility if something goes wrong, and substitute mandatory arbitration. Arbitration is a method of resolving a dispute that a resident may want to agree to at the time the dispute occurs, but may not want to sign an agreement requiring mandatory arbitration in every situation. If the assisted-living candidate suffers from a significant level of disability and does not have the capacity to enter into a contract, then someone else with a legal right to act for the person must enter into the assisted living agreement. This would be a court-appointed guardian and conservator, or a person that holds a durable power of attorney. He or she must take all the steps necessary to review the assisted living contract on behalf of the would-be resident. A person considering an assisted living residence, or the court-appointed guardian or power of attorney on the person's behalf, must also make sure that sufficient funds are available to pay for the assisted-living care in the short term, and perhaps for the remainder of the resident's life. For this reason it is important to absolutely confirm, in writing and preferably as part of the written contract, any cost increases that the facility may impose over a five- or ten-year period of time. It would be a tragedy to have to move from the facility after the resident had come to love it.An assisted-living contract will govern the resident's quality-of-life in his or her last years, and the "last years" could turn out to be many years. It is essential that all the details of the resident's everyday life are provided for in that contract. It is also essential that the contract satisfactorily covers all of the issues that may arise in the assisted living situation. (Answer adapted from the Gilliland & Hayes, P.A. Legal Advisory, Fourth Quarter, 2002).
