Arbitration agreements are a touchy subject in any context, but particularly so in the emotionally charged, often distressed, situations surrounding entry into a long-term care (LTC) facility.

Anyone attempting to keep up with the flip-flop of positions on permitting or prohibiting arbitration clauses in LTC contracts is likely suffering from a severe case of whiplash. In the last three years, the validity of arbitration clauses has gone from silent, to prohibited, and soon they could become lawful. The future of LTC resident care hangs in the balance.

The Paradox

The executive branch’s position on arbitration clauses in LTC contracts has made a 180-degree turn in recent years. In 2016, the Centers for Medicare & Medicaid Services (CMS) banned pre-dispute arbitration agreements. In 2017, CMS issued proposed revisions eliminating the arbitration prohibition.

Making the decision to place a loved one in long-term care is a difficult one. There are endless emotions and questions that need to be addressed. To make the process more difficult, family and loved ones often have preconceived notions of what it means to be in a facility. We have all heard a horror story or two of poor care, abuse, or medical malpractice – knowledge that understandably creates hesitancy to allow your loved one to be placed into care. Deciding to place a loved one in a long-term care facility requires thoughtful and logical reasoning.

Making the Initial Decision

Family and friends often struggle with the decision to take away their loved one’s independence. Often, placement also means greater distance from those the resident relies on for companionship and assistance. Family may feel disloyal; loved ones may feel betrayed. Family may feel that they have become incapable of caring for their loved one on their own; loved ones may feel that they are not unwell enough to investigate long-term care options. Some loved ones only need minimal assistance; others may need around-the-clock care.

Like so many concepts in the law, the word “fiduciary” has Latin roots; it means trust. This is particularly appropriate, as the word trust is thought of as the confidence and reliability required in a person of great importance – as well as a legal vehicle to develop such relationships.

The list of potential fiduciary positions is rather long, demonstrating that it is quite easy to become a fiduciary for another person. While a fiduciary can be a stock brokerage firm handling the investments of a retiree or a real estate agent selling a home for a client, in the estate planning and elder law context, a fiduciary very commonly comes in the form of a trustee of a trust, an agent in a power of attorney, or as an executor of a will.

When Does One Become a Fiduciary?