Metropolitan News-Enterprise


Tuesday, August 30, 2005


Page 1


Daughter Holding Health Care Power of Attorney May Bind Mother to Arbitration, Appeals Court Rules


By a MetNews Staff Writer


A daughter’s signature on a form agreeing to arbitrate disputes over nursing home care provided to her mother was binding where the mother had executed a power of attorney for health care, this district’s Court of Appeal ruled yesterday.

Writing for Div. Five, Presiding Justice Paul A. Turner distinguished a 2002 ruling by Div. Seven. In that case, Pagarigan v. Libby Center Care, Inc., 99 Cal.App.4th 298, Justice Earl Johnson said two adult children lacked power to bind their mother by signing an arbitration agreement at the request of nursing home staff.

Div. Eight followed Pagarigan two years later in Goliger v. AMS Properties, Inc., 123 Cal.App.4th 374.

But Turner observed that “[n]one of the adult children in Pagarigan and Goliger acted pursuant to a durable power of attorney in securing medical care for their aged parents.”

In contrast, Ella Marie Needham had executed a standard “Advance Medical Directive and Power of Attorney for Health Care” naming her daughter, Penny Garrison, as her agent for making health care decisions. When Garrison admitted her mother to Country Villa Belmont Heights Healthcare Center, Garrison signed forms agreeing to arbitrate any disputes arising out of the center’s care for Needham.

Her mother later died and Garrison sued the center, as well as Community Hospital of Long Beach, alleging elder abuse and medical malpractice. In a declaration she stated that she had signed numerous forms while admitting her mother to the facility, that they had not been explained to her, and that, while she held health care and financial powers of attorney authorizing her to act on her mother’s behalf, she had no power to make determinations “regarding her constitutional rights, her property rights or her legal decisions.”

She also did not realize that the arbitration provisions were optional or that they could be revoked within 30 days, Garrison declared.

Los Angles Superior Court Judge Patrick T. Madden issued an order compelling arbitration. Div. Five summarily denied Garrison’s petition for a writ of mandate, but issued an order to show cause when the state Supreme Court granted review and ordered it to do so.

Turner said the result was compelled by three provisions of the Probate Code which are part of the state’s Health Care Decisions Law: Secs. 4683, 4684 and 4688.

The first section authorizes an agent for health care decisions to “make health care decisions for the principal to the same extent the principal could make health care decisions if the principal had the capacity to do so.” The second directs such agents to make decisions either in accordance with the principal’s instructions and wishes or “[o] accordance with the agent’s determination of the principal’s best interest.”

The third section states that where the Health Care Decisions Law does not “provide a rule governing agents under powers of attorney, the law of agency applies.”

Turner explained:

“Under the combined effect of these three provisions of the Health Care Decisions Law, Ms. Garrison had the authority to enter into the two arbitration agreements on behalf of Ms. Needham. Ms. Garrison executed the arbitration agreements while making health care decisions on behalf of Ms. Needham. Whether to admit an aging parent to a particular care facility is a health care decision. The revocable arbitration agreements were executed as part of the health care decisionmaking process.”

He continued:

“Ms. Garrison was expressly authorized to even determine where Ms. Needham would live. Moreover, Probate Code section 4683, subdivision (b) allows the attorney in fact to ‘make decisions after the principal’s death’ which would include how to resolve disputes with the health care provider.”

The presiding justice pointed out that Civil Code Sec. 2319 permits an agent to “do everything necessary or proper and usual, in the ordinary course of business, for effecting the purpose of his agency....”

He commented:

“The decision to enter into optional revocable arbitration agreements in connection with placement in a health care facility, as occurred here, is a ‘proper and usual’ exercise of an agent’s powers.”

Justices Orville A. Armstrong and Richard M. Mosk concurred.

Susan Bowland Ghormley and Robert J. Chavez of Wilkes & McHugh in Rancho Palos Verdes represented Garrison on appeal.  Mark S. Katz and Richard H. Nakamura of Morris, Polich & Purdy in Los Angeles were joined in representing Country Villa by Los Angeles lawyer Maureen Mackintosh Home, while George E. Nowotny of Lewis Brisbois Bisgaard & Smith in Los Angeles represented Community Hospital of Long Beach.

The case is Garrison v. Superior Court (Country Villa Belmont Heights Healthcenter), 05 S.O.S. 4238.


Copyright 2005, Metropolitan News Company