When the paperwork doesn’t work

I have been writing pro bono (latin and lawyer for free) Wills for local police officers lately. Good men and women who because of their line of work, realize, perhaps younger than most, that they are not immortal. That eventually they will die. That in facing their own mortality, they would like to make arrangements, such as:

  • Where does their stuff go when they die
  • Who raises their children should they be killed young
  • Who makes medical decisions for them if they become incapacitated
  • Who makes financial decisions for them if they become incapacitated

We discuss in these meetings, that perhaps there is one special, strong and capable person who can do all of the hard stuff – manage your kids, your money and make good medical decisions for you. But likely, there isn’t just one person. Maybe one person should make the medical decisions, and another raise your kids.

We call the person who makes decisions their Medical POA – or technically, under Virginia law, their Attorney in Fact. In my draft documents I write that a medical POA can sign them into a nursing home BUT CANNOT WAIVE THEIR RIGHT to a jury trial.

Now – how did we get to jury trials? Is it because I am a trial lawyer and I like jury trials? Sort of.

It is because 99% (this is a grossly inaccurate guess based on my 15 years of practicing law) of assisted living facilities and nursing homes place a clause in their contracts that say (and I am exaggerating this language to make a clear point) – “YOU AGREE THAT NO MATTER WHAT WE DO TO YOU OR YOUR LOVED ONE, YOU WILL NOT SUE US – YOU GIVE UP THAT RIGHT. YOU AGREE TO THIS SUPER SECRET PROCESS CALLED ARBITRATION WHERE NO ONE FINDS OUT WHAT WE DID WRONG, YOU GET PAID LESS, AND NO FUTURE FAMILIES CAN INVESTIGATE OUR MISTAKES.”

This above exaggerated (but not wholly inaccurate when it comes to effect) language is called an Arbitration Agreement, and because Congress (state and federal) is typically a bunch of wimps, they are perfectly legal in all consumer contexts – even when making the stressful and emotional decision to placed a loved one in a nursing home.

And what does this have to do with paperwork and police officers?

I’ll tell you – I don’t want the police officers to give their loved one, or their Medical POA the legal right to agree to these stinky things. I want them to retain the right to go to Court. Why?

  • Because I believe that public accountability is often the most effective type of accountability
  • Because many families who call me don’t care about the money a lawsuit brings, they just want to see things changed – and change doesn’t happen in a super secret process without a local judge or jury
  • Because we shouldn’t have to pay a fake or retired judge $500 an hour to decide whether a loved one deserved better care. That is what juries are for.

Then – I read articles like this published by the Long Term Care industry and I think, yup – I don’t like Arbitration because the big companies do.

So – there. That’s alot perhaps too much on how I purposefully make sure the paperwork doesn’t line up – AND – I am happy about it.

Lauren Ellerman

Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at lellerman@frithlawfirm.com.