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Horton Law Firm Blog Power of Attorney: The Arbitration Trap For The Elderly

Power of Attorney: The Arbitration Trap For The Elderly

As people age, they are forced to rely on friends and family to take care of their affairs, and a smart way to do this is to make sure someone you trust is legally appointed to act on your behalf.  This is particularly true when someone moves into a nursing home.  

A power of attorney (POA) is a legal document, which under South Carolina law may grant general and specific legal authority to take actions on your behalf; a durable power of attorney endures even in the event you are no longer competent to take care of your affairs (such as with Alzheimer’s).  Many a parent will grant a son or daughter the POA to sign checks, sign contracts, make purchases, make gifts to others, and/or any combination of activities that are legally binding.  Many times a lawyer’s power of attorney is a standard form document; unfortunately, most POA’s also set a standard trap for the unwary.

Arbitration agreements are contracts that take away people’s right to a trial by jury in the case of a dispute or injury.  Some times people give up their right to a trial by jury knowingly; many times, people don’t completely understand a contractual provision which requires mandatory arbitration.  Very few folks realize that their power of attorney probably grants someone the authority to sign away their ability to go to court in the event they are abused or neglected by caregiver or a nursing home.  Fortunately, this is a problem that can be easily prevented.

We have begun to insert the following language into all of our POA’s:  “However, my Attorney in Fact shall not have the authority in any instance to waive, relinquish, bargain away, and/or in anyway limit my right to a trial by jury, whether by contract or whether by way of any court filing.” My firm is in the process of contacting South Carolina lawyers all over the upstate to ask that they do the same thing.  The importance of preserving an elderly person’s constitutional right to a trial by jury may not be obvious to all legal practitioners and so, it is important that family members who will receive a grant of the responsibility to bind their parents or loved ones know to ask that they not put in the position of ever inadvertently or otherwise agreeing to arbitration.

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