Children of deceased nursing home resident sued nursing home. The trial court denied the nursing home’s motion to compel arbitration and the nursing home appealed. The resident had executed a California Probate Code § 4701 health care power of attorney that impliedly included the power to execute contracts for nursing home admission. The power of attorney did not restrict the powers of the agent. Relying on Garrison v. Superior Court, 132 Cal. App. 4th 253 (Cal. Ct. App. 2005), the court held that the holder of a health care power of attorney has authority to enter into an arbitration agreement. The case was remanded for determination as to whether California Code of Civil Procedure § 1281.2 applied (providing that arbitration can be delayed until issues that are not subject to arbitration are resolved). The court rejected contrary holdings in Goliger v. AMS Properties, Inc., 123 Cal.App.4th 374 (2004) and Pagarigan v. Libby Care Center, Inc., 99 Cal.App.4th 298, (2002), distinguishing them because in each case the putative agent did not hold a health care power of attorney. Decided: March 1, 2007.

Of note, Section 4701 provides in part: “Unless the form you sign limits the authority of your agent, your agent may make all health care decisions for you. This form has a place for you to limit the authority of your agent. You need not limit the authority of your agent if you wish to rely on your agent for all health care decisions that may have to be made. If you choose not to limit the authority of your agent, your agent will have the right to: [P] a) consent or refuse consent to any care, treatment, service or procedure to maintain, diagnose or otherwise affect a physical or mental condition[; and] [P] b) select or discharge health care providers and institutions. …”

This is a poorly reasoned opinion. A health care power of attorney is for the purpose of making health care decisions, not financial and legal decisions. Unfortunately, it creates and additional moving target for victims of nursing home abuse who wish to hold wrong-doer’s accountable. Now, not only must they limit their durable powers or attorney but, at least in California, they must also limit their agent’s authority under a health care power of attorney.