HomeUncategorizedCOURT BAILS OUT ATTORNEY-IN-FACT

Are you a power of attorney over a friend or loved one? Is your loved one living in a nursing home? Is the nursing home telling you that you have to sign an agreement to submit to arbitration as a condition of admission? Arbitration is a technique for the resolution of disputes outside the courts. This usually favors the corporation, not the individual. Instead of a jury of your peers judging the facts and deciding damages, it is a paid arbitrator.

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A power of attorney lets you make decisions when authorized. For example, under a durable health care power of attorney, the agent would be able to decide what kind of treatment you would wish for them to receive. This may sound scary for some people but, it is a good idea for elders to have a medical power of attorney. If they don’t have one things can go wrong. The information below is a story about an elderly grandparent who passed away in a nursing home. The family wanted to file a wrongful death lawsuit in court but the power of attorney had signed an intake nursing home document that mandated all claims to arbitration.

This story is an actual Oklahoma reported case found at 341 P. 3d 71 (Okla. 2014) Look Up Case At Law Website. The court stated, “To assure that the parties have consented to arbitration, the courts will decide whether there is a valid enforceable arbitration agreement, whether the parties are bound by it, and whether the parties agreed to submit a particular dispute to arbitration.”

“Nursing home admission agreement, which contained mandatory binding arbitration clause, was health care decision that resident’s medical attorney-in-fact lacked authority to sign on resident’s behalf, absent physician’s certification that resident became unable to make her own health care decisions, under medical power of attorney which took effect only upon such certification, and thus, arbitration agreement was not binding on resident’s daughter as non-signatory, for purposes of daughter’s claim against facility for wrongful death, where arbitration was requirement for resident’s admission to facility and provision of health care.”

This case was an interlocutory appeal from an order of the District Court. The trial judge denied the appellants’ (or the nursing home’s) motion to compel arbitration on the ground that there was no binding arbitration agreement. The Appellant Court retained the appeal and affirmed the trial court.

The Appellant Court found that there was no valid arbitration agreement since the attorney-in-fact was not authorized to make health care decisions for her grandparent under the circumstances (the grandparent still could make her own at the time). Under the health care power of attorney the physician was required to certify that the elderly person was not capable of making their own health care decisions. No such certification was made. “After a telephonic hearing, the trial judge ruled that she was not acting under any power of attorney on the date of her grandmother’s admission to the nursing home.”

“A court asked to compel arbitration of a dispute must first determine whether the parties agreed to arbitrate that dispute.” “The existence of an arbitration agreement is governed by principles of state law.” “If necessary, a court shall decide whether an agreement to arbitrate exists or whether a controversy is subject to an agreement to arbitrate. 12 O.S.2011 1857(B). Oklahoma has recognized that although the Federal Arbitration Act, 9 U.S.C. 2, favors arbitration when it is the parties’ contractual choice of a remedial forum, courts will not impose arbitration upon parties where they have not agreed to do so.

“Consent to arbitrate is an essential component of an enforceable arbitration agreement. To assure that the parties have consented to arbitration, the courts will decide whether there is a valid enforceable arbitration agreement, whether the parties are bound by it and whether the parties agreed to submit a particular dispute to arbitration.”

The power of attorney contained this language, “Regardless of the above statements, my agent (1) cannot execute a will, a codicil or any will substitute on my behalf; (2) can not change the beneficiary on any life insurance policy that I own; (3) cannot make gifts on my behalf; and (4) may not exercise any powers that would cause assets of mine to be considered taxable to my agent or my agent’s estate for purposes of any income, estate, or inheritance tax, and (5) cannot contravene any medical power of attorney I have executed whether prior or subsequent to the execution of this Power of Attorney.”

The court concluded that a person who holds a medical durable power of attorney, in selecting a long-term health care facility, has the power to execute applicable admission forms, including arbitration agreements, unless that power is restricted by the principal. The court reasoned that signing the document requested by the nursing home was a health care decision. The court stated, “If signing the arbitration agreement is necessary to receive health care, then the decision to sign the agreement is a health care decision because the receipt of health care depends on whether the patient agrees to arbitrate his or her claims. In that case, the decision to sign the arbitration agreement is effectively a decision about where and whether to receive health care, either from a facility that requires the patient to sign an arbitration agreement, from a facility that does not impose such a requirement, or from no facility at all.”

The court held held that the decedent’s next-of-kin and personal representative (probate estate) did not sign the contract and were not bound by an arbitration agreement included in a contract of admission signed on the resident’s behalf signed by an attorney-in-fact.

All this information is saying is to make sure you talk to an attorney that is experienced with powers of attorney. An elder law attorney, like Brent D. Coldiron, will know what to do. Do not sign documents requested by a nursing home without having them reviewed by an experienced elder law attorney. Brent D. Coldiron, knows what to do in these situations. He is an experienced probate, living trust and elder law attorney. His fees are reasonable. The best money ever spent is to get good legal advice before signing your name to something. Contact Brent at (405) 478-5655 or 737-2244. His website is http://coldironlaw.com.


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