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

There are several legal matters that applicants and people who are helping them should be especially aware of in regards to contract clauses in admission agreements and contracts.

Some operators make efforts to require someone else (e.g.,  a family member, attorney, representative, substitute decisionmaker) to pay, if the resident defaults in payment or if the resident’s income falls short of the minimum accommodation rate.  If the resident’s income is insufficient to pay for basic accommodation in a subsidized facility,  the resident may apply for a rate reduction. While the Operator does not have access to the resident’s income information, the Operator should assist the resident (or whomever the resident has chosen to help, including substitute decision-maker) to know how to apply or re-apply for a subsidy.

No one else should be required to make up the difference between the resident’s income and the accommodation rate. Residents are not required by law to provide a guarantor or designate a representative. Even if the resident supplies the name of a family member or friend as a contact person, that person will not be legally obligated to make payments from their own funds unless that person has signed the admission contract under conditions where it is clear they are assuming that legal responsibility.

If the resident is not mentally capable of signing an admission agreement, then a substitute decision-maker may sign on behalf of the resident. The Ministry of Health policy requires the agreement to be in writing.  However the law does not require a substitute to sign the written agreement in these circumstances.  In some instances, the substitute decision-maker may not want to if there are specific clauses in the agreement that cause concern.  

:''“A facility has no legal basis whatever for refusing admission to an applicant who does not provide a guarantor or co-signer to sign an admission contract. While it may be useful to a facility to obtain the signature of a guarantor, it is of no particular use to the applicant and the applicant cannot in any way be penalized for failure to provide one.”''

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”).