MURDER! (and the potential unenforceability of arbitration clauses)

cautiontapeThe AARP Bulletin recently ran an interesting article regarding a 100-year senior living facility resident who was strangled to death by her 97-year old roommate.  Beyond the macabre and tragic situation itself, the murder gave rise to a court ruling that could have significant impact on arbitration clause in senior living facility contracts. The deceased resident’s family sued the facility for wrongful death and the facility, relying upon the terms of its residency agreement, sought to have the case sent to arbitration.  However, the court ruled that the arbitration clause was not binding.  Although the resident’s son executed the residency agreement on his mother’s behalf as her designated health care proxy, the court found that his authority as a health care proxy did not extend to being able to bind his mother to accept arbitration in lieu of her right to go to court.  This serves as a warning that, when enrolling residents who have diminished capacity, it is important to make sure that any family members acting on their behalf have more than just health care surrogacy rights.  To fully bind a resident to all the provisions of a residency agreement, the person signing (if not a resident who is competent) should have a full and complete power of attorney on behalf of the resident that empowers them to fully bind the party on whose behalf they are signing.

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