EMAIL TO A COLLEAGUE COMMENT

 

Successor Attorney-in-Fact; Nursing Home Arbitration


A woman, who suffered from dementia, executed a durable power of attorney that named the woman’s son as the woman’s attorney-in-fact and the woman’s daughter as the successor attorney-in-fact.

 

When the woman was transferred from a hospital to a nursing home, the woman was unable to handle the woman’s own affairs. The woman’s daughter accompanied the woman to the nursing home and signed all of the admission documents, including an arbitration agreement. The woman resided in the nursing home for about three years. About one month after leaving the nursing home, the woman died.

 

The daughter, on behalf of the woman’s estate, sued the nursing home. The causes of action alleged in the complaint included corporate negligence, nursing home violations, medical malpractice, malice and/or gross negligence, fraud, premises liability, violations of the West Virginia Consumer Credit and Protection Act, and wrongful death.

 

In response, the nursing home filed a motion to dismiss and compel arbitration. The parties proceeded to engage in limited discovery regarding the formation of the arbitration agreement.

 

The daughter argued that the arbitration agreement was not enforceable because, as the alternate durable power of attorney, the daughter did not have the actual authority to bind the mother to the arbitration agreement. Agreeing with the daughter, the Circuit Court of Kanawha County denied the nursing home’s motion to dismiss and compel arbitration.

 

The Supreme Court of Appeals of West Virginia reversed. The court held that the durable power of attorney provided the daughter with the authority to enter into an arbitration agreement with a nursing home on the mother’s behalf.

 

The durable power of attorney provided the adult daughter with the authority to enter into an arbitration agreement with the nursing home on the mother’s behalf. Statutes applicable to an “agent” are equally applicable to a “successor agent.” The nursing home could rely on the daughter to act as the woman’s durable power of attorney during the admission process because the nursing home accepted the durable power of attorney from the daughter at the time of the woman’s admission. The daughter consistently exercised the rights and duties granted to the daughter under the durable power of attorney on the mother’s behalf before, during, and after the nursing home admission process and during the time period the mother lived at the nursing home. Conversely, the son, who was named as the agent in the durable power of attorney, never exercised any rights or duties granted to the son under the mother’s durable power of attorney. The court concluded that the trial court erred in denying the nursing home’s motion to dismiss and compel arbitration.

 

The Supreme Court of Appeals of West Virginia reversed the trial court’s denial of the nursing home’s motion to dismiss and compel arbitration.

 

See: AMFM LLC v. Shanklin, 2018 WL 2467770 (W.Va., May 30, 2018) (not designated for publication).

 

See also Medical Law Perspectives Report: Nursing Home Injuries: Acute Risks for Subacute and Skilled Nursing Care 

 

See also Medical Law Perspectives Report: Failure to Comply with Advance Directive: Deadly Risk

 

 

REPRINTS & PERMISSIONS COMMENT