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A General Hypothetical Situation:

An elderly individual is in an assisted living facility and passes away within the first week of a month. The individual's family seeks a pro-rated refund for the time of that month that the individual did not live there (because, of course, individual is deceased).

The Contracts:

[If it matters, both of the following documents are separate from one another and from any other agreement].

Say there are two form contracts. 1 and 2:

Contract #1:

The first was signed by the individual's family when it was presented at the beginning of the individual's stay. This one is titled "Refund Policy" and states that no refund will be given unless 30-day notice is given to the facility that the resident is "leaving."

Contract #2:

The second was neither presented to nor signed by the individual or the individual's family at any time. This one is titled "No Refund Policy In Case of Death." It explains that no matter what, there will be no refund in the instance the resident expires with time remaining in the month (meaning if the resident dies on November 1 and November has already been paid for, not even then would the family receive any refund).

The Question:

Given that the one form signed made no mention of death and specifically related to "leaving" and the fact that the second form exists (ostensibly for some reason as opposed to just for the joy of having yet more forms), but was not signed or presented (or discussed), can the individual's family get that remaining monthly fee back legally?

My initial thoughts focus on the wording of the contract signed and the existence of the second, more specific, contract. Simultaneously, I am wondering whether the contract is enforceable under the theory of contract of adhesion.

Thoughts?

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There is only 1 contract - the one where the Home allows the resident to live there in return for money. What you have described in the forms are terms that may or may not form part of the contract, not seperate contracts.

Form 2 is irrelevant - as it was not presented to the other party it doesn’t form part of the contract.

Notwithstanding, under Form 1, there is no refund. The resident “left” without giving notice; even though the circumstances are such that the resident couldn’t give notice that is not the homes’s problem.

  • Allow me to further inquire: The form contract that was not signed (I get that it is "not" "a" contract, but it is a form that is meant to become one)... assuming it's established that the other one was signed and is valid (the one re: refund policy if resident leaves), can not the mere existence of the other form (the one specifically delineating what happens in the event of death) support the argument that the signed one does not deal with death at all? In other words, "you guys realized the original was inadequate and that's why you had the second one (re: death) made - to cover yourself" ? – A.fm. Nov 29 '17 at 2:33

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