With summer in the air many nonprofits enter in the heart of the season for their charitable, educational, and religious programming. As mission trips, camp excursions, hikes, and canoe trips fill up the calendar, many nonprofits pull out their tried and true “Waiver and Consent” forms and “Parental Permission” forms. Are these forms an effective risk management tool? Do they provide nonprofits with much needed legal protection for program participants and volunteers?
I. A Cautionary Tale
A Mississippi church was recently sued for negligently supervising participants on a mission trip to Costa Rica, where one of the mission participants, a 17-year-old youth, tragically died while playing on some rocks near the Pacific Ocean. Plaintiffs sued the church, despite the fact that the boy’s grandmother as legal guardian signed two documents before a notary public, as a condition of the boy participating. The youth also signed a “Release of Claim” document that contained warnings about the dangers associated with participating in the mission trip.
At the trial court level, the church prevailed on summary judgment (i.e., without a trial), the trial court did not consider the waivers in its legal deliberations. On appeal, the court reversed for the plaintiff, ruling that “the two waivers executed in this case are not binding on [the plaintiff] and the trial court was correct in not giving any effect to these two waivers in its opinion.” In other words, the waivers and consent were of no legal force in protecting the church.
The Mississippi case raises the obvious question: why then, do we have waivers at all? While waivers and consents do not make a nonprofit legally bullet-proof in a lawsuit, they can provide some protection and otherwise serve important functions.
II. Background and Summary of Legal Principles
The Mississippi court identified two common erroneous assumptions nonprofits make in relying on waivers:
A. Parents and guardians may not generally waive the legal rights of other individuals, including their children.
First, the court noted that while the guardian gave her consent, she was not a party to the action. The lawsuit was instead filed by the deceased boy’s mother on his behalf. While the waiver and consent may have precluded the guardian from asserting claims on her own behalf, she was not permitted to waive claims on behalf of someone else – her grandson.
Nonprofits using waiver and consent forms should understand this limitation, and where possible, have participants sign their own waivers and releases. Each participant should have his or her own form, have the opportunity to carefully review the form, and have the opportunity to consent freely and voluntarily.
B. It is generally not possible for a minor to waive legal rights.
In addition to the party plaintiff problem under II(A) above, the church’s reliance on the waivers was ill-placed because it was signed by an underage youth. Under Mississippi and other states’ laws, minors do not have sufficient capacity to enter into legally binding agreements. As the court concluded, the youth’s “could not legally sign a contract of this nature to waive liability. His contract therefore was not legally binding because of his age and the nature of the contract.”
The above two errors, when taken together, get to the heart of limitations on waivers and consents involving children. Because minors do not have capacity to waive legal rights, and because parents may not generally waive rights on behalf of their minor children, nonprofits wishing to involve minor participants find themselves in a quandary. How can nonprofits permit minors to participate in missions trips, camps, and similar activities, when such participation legally exposes the nonprofit?
III. Specific State Laws Matter
Nonprofits first need to understand the ways in which their particular states apply the general principles above. While all courts will view parental waivers with some skepticism and interpret the waivers in favor of protecting children’s rights, states vary in their treatment of such waivers.
States such as Michigan and Florida take a strong position against waivers and will almost never enforce these waivers. Courts in these states reason that, while there is a general presumption that a parent can and should determine what is in the best interests of their children, waiving rights is never in a child’s best interest. Because, a parent’s decision against the child’s best interest should not be enforced to the detriment of the child, the courts will not uphold the waivers.
Some state courts, on the other hand, though still slow to enforce waivers, are willing to consider them. States like Massachusetts and Colorado emphasize that parents have a fundamental right to determine how to raise their children. These states characterize waivers as reflections of a parent’s constitutionally protected decision that the benefits to their child of an activity outweigh the risks. These state courts defer to the parent’s determination of what is in the child’s best interest.
While it is generally not a good idea to rely on the potential legal effectiveness of a waiver, in some states, a court might consider the existence of a signed waiver in its determination of liability.
IV. Principles for Waivers and Consent Usage
While waivers and releases do not provide blanket protection, they do provide a variety of legal and other benefits. The following paragraphs provide guidelines for drafting waivers and releases, and identify certain benefits arising from their use.
A. Be specific, be educational, be appropriate in scope.
Waivers provide an opportunity to educate participants, parents and guardians, and volunteers about the nature of the activity, its purposes, benefits, and possible risks. Waivers and consents should therefore describe the mission trip, canoe trip, or other activity as specifically as possible. Additionally, the form should identify specific risks or harm associated with the activity (e.g., the work will be strenuous, the conditions may involve extreme cold or heat, the participants will be expected to walk for several miles, the participants may be injured during games that will be played, etc.).
Keep in mind too that although many form waivers use general terms such as “the party waives all claims,” courts look carefully at exactly what claims the party is waiving. Waivers that are too general or too broad will usually be deemed void. Better to waive all but gross negligence and intentional misconduct than to provide a blanket waiver.
B. Be understandable.
It can be tempting to Google “waiver and release” and find the most formal, lawyer-like document on the web, twenty pages long, with every conceivable proviso and contingency. Ironically, in this context, long complicated forms filled with jargon and legalese are actually weaker and more difficult to legally enforce. Courts look to see whether a waiver and release can be understood by a person without formal legal training. Obtuse, complicated forms are often found to be unenforceable.
C. Get, don’t just give, information.
Well drafted waiver and consent forms provide readers with an important opportunity to educate the organization concerning the unique needs and requirements of minor participants. The forms should give space for signers to identify allergies, illness, injuries, medications, medical restrictions, prohibitions, and other special needs. As a condition for participation, participants (or parents) should be required to certify that the participants are fit for the activities in question. It may be appropriate as well to require a doctor’s examination as a further qualification. (A waiver form can also provide a handle opportunity to obtain consent for media usage.)
D. Get Medical Permission and Consent.
The waiver should not only be about protecting the nonprofit from liability, but also ensuring that the participant receives prompt, skilled medical care should the need arise. Obtaining consent to medical treatment is an important step toward ensuring that the participant receives the medical care he or she needs.
E. Include “Consideration” Language for Volunteers.
Waivers should include language that conveys that volunteer involvement is an exchange of benefits. The nonprofit furthers its charitable mission through volunteers, but volunteers also greatly benefit from their participation. Volunteers receive opportunities to travel, to explore new cultures, social contexts, to receive professional oversight and training, to grow physically, mentally, emotionally and spiritually, and to even bolster their own CV’s or resumes. By carefully noting these benefits, and having participants acknowledge their receipt of such benefits in and through their participation, the parties acknowledge mutual “consideration,” making the waiver and consent more clearly a contract, thereby providing the nonprofit additional protections under contract law theory.
F. Insure, Insure, Insure!
As explained, no waiver and consent form is likely to provide complete insulation from liability arising from a nonprofit’s program activities. Organizations must, therefore, carefully evaluate their insurance policies to fill any legal risk gaps that may exist. The nonprofit’s leadership should make ample liability insurance a top priority. Skilled insurance agents can help an organization evaluate its activities to optimally protect the nonprofit’s interests.
V. Remember Safety
Far above the paperwork, safety of program participants should remain paramount. Nonprofits are wise to carry out careful due diligence for prospective program activities, including assessment of risks, evaluation of equipment and packing considerations, appropriate training, and engagement of others as needed. For example, if a church wants to have a bungee-jumping outing, they better figure out where to find a highly reputable bungee-jumping provider, how much training is needed, and what safety risks are involved. There’s no need to stay home and read a book, but some safety homework would certainly be in order. And that would be appropriate too for effective risk management!
VI. Putting It All Together
When used well, waivers and consents can provide valuable tools for protecting nonprofits, informing program participants about safety aspects, and gathering critical information. But they are not legally foolproof. Nonprofits thus may err when they place too much faith in their waiver and consent forms. When the worst-case scenario occurs, such waivers and consents are limited in the degree of legal protection they provide. So use them circumspectly, and also remember safety measures, critical information exchange, and liability insurance coverage.