Preparing a Power of Attorney: Keeping the Future in Mind

The Fredricksburg Care Company v. Perez Supreme Court of Texas case has recently brought attention to the process of drafting a Power of Attorney. When preparing a Power of Attorney for an elderly client who may eventually need to be placed in a nursing home it is important to consider their future needs. The client may need a Power of Attorney for paying bills, selling their house, making medical decisions, or handling potential legal issues that may arise. While drafting the Power of Attorney form it is important to consider including a phrase similar to the following: “NO POWER TO AGREE TO BINDING ARBITRATION-– Although I have given my attorney-in-fact this general and durable power of attorney, I specifically withhold from my attorney-in-fact the power to agree or consent prior to the actual occurrence of controversy to binding arbitration therefor, nor to agree in advance to any other process that would preclude the right to have a jury decide any issue in controversy concerning my person or my property, nor to limit in advance in any way my procedural rights to litigate such claims and the damages to which I may be entitled if successful. This does not, however, preclude non-binding alternative dispute resolution processes such as mediation nor does it preclude submitting a dispute after it has occurred to an arbitration following the advice of counsel.” By including a clause such as above you can ensure that the nursing home patient preserves their right to a trial rather than a forum that drastically favors the nursing home. Often nursing home contracts will include an arbitration clause forcing the patient to be brought before a private arbitrator of the nursing home’s choosing. While including a clause as above will protect your client it is also important to advise them of the potential repercussions. By having a clause that protects their right to a trial it may become much more difficult to find a nursing home that will accept them as a resident. As a firm that handles many Nursing Home negligence cases we believe it is in the client’s best interest to present them with the option to choose for themselves.