Q: My mom is 86 years old and recently fell. She will recover, but needed surgery and some time in rehab. When she gets home, we will have her assisted by a home care company. The contract has language that protects them from various claims, and includes a hold harmless clause and for indemnity. Can they shield themselves from liability and put the risk on us?
W.C., Long Beach
A: Let me start by mentioning an excellent organization in Torrance known as H.E.L.P., which stands for Helping Elders Live Productively. The phone number is 310-533-1996. If they cannot guide you on the contract or suggest someone you can talk with about it, they likely have suggestions on in-home caretakers for you to consider (and thus comparatively shop).
As to your question, my review of various home care contracts indicates it is not uncommon they seek to avoid liability, to the extent they can. They are not going to be able to avoid liability if their conduct violates public policy or otherwise is unlawful. Language in a home care contract may instead seek to limit liability to misconduct that would be described as grossly negligent (thus reckless) or willful. In this manner, mere negligence would provide no basis for a claim, if the contract is indeed valid and enforceable.
Contracts typically are subject to judicial review. I cannot say if a hold harmless and/or indemnity agreement in a home care agreement would withstand scrutiny by a judge; the circumstances are going to be pertinent (such as what happened, how and why did it happen, and what does the law permit).
You at least should find out if: (a) the company is licensed, (b) if so, for how long, (c) that its license is in good standing, (d) if it carries workers’ compensation insurance, and (e) if the company has liability insurance. Asking these questions is not discourteous, but part of due diligence — and hopefully, you get a clear answer to each. If your concerns are substantial, then have the contract reviewed by knowledgeable counsel and discuss it thoroughly.
Q: Are home care companies in California licensed or regulated?
Y.S., Carson
A: The California Department of Social Services, through its Home Care Services Bureau, is responsible for regulating and licensing home care companies, and registering home care aides. This is mandated by the Home Care Services Consumer Protection Act, which created a public online registry for background-checking home care aides. In addition to the state license, the company may need a local business license from your city or county.
You can find public information on California home care workers and agencies through the California Department of Social Services’ Home Care Aide Registry, and by requesting public records from agencies, such as the California Department of Aging; the latter oversees home care services and licensing under the Home Care Services Consumer Protection Act. The Home Care Aide Registry allows you to verify a caregiver’s registration status and check for disciplinary actions. For more information, go to ccld.dss.ca.gov/hcsregistry/About.aspx.
Ron Sokol has been a practicing attorney for more than 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.