Arbitration & Mediation

Second DCA Confirms A "Widely Used" Durable Power of Attorney Form Includes Selecting Arbitration

By Christopher B. Hopkins, Esq.

The Second District has been busy recently with a pair of nursing home arbitration decisions which reflect that the court (1) acknowledges it is in conflict with other districts on whether courts or arbitrators should consider public policy challenges and (2) continues to clean up the mess over the scope of durable powers of attorney caused by an aberrant, earlier decision. The case of Candansk, LLC a/k/a Carrington Place Care Center, Senior Health Management, et al. v. Estate of Opal Hicks by and through Robert Brownridge (Kelly, Whatley, and Davis) involves the latter issue.

The durable power of attorney (DPOA or POA) form at issue empowered the daughter to sign the admission agreement and arbitration clause since it states that "my attorney in fact shall act in my name, place, and stead in any way which I could do... [including] (h) claims and litigation... [and] (n) all other matters."

The plaintiff, seeking to avoid arbitration, claimed generally that the POA failed to specifically include the right to agree to arbitration and/or waive a state right to jury trial. The plaintiff also argued that the POA was limited to only property decisions.

The appellate court first dismissed the estate's argument that a POA form needs to specifically grant authority to agree to arbitration -- avoiding a "magic word" or other bright line test which would have singled out arbitration as a decision which would have needed to be listed by name in general POA forms (again, at least for broad grants of authority, having courts nit-pick through POAs likely defeat the purpose).

The court stated, "[A] power of attorney need not expressly refer to arbitration to confer the authority to agree to this method of disputes resolution."

Turing to the estate's apparently regrettable argument that the POA was limited to property rights and not constitutional rights, the appellate court flogged both the lawyers and trial court for overlooking a 1950 U.S. Supreme Court case which noted that a cause of action is property.

Some of the same defendants and all of the same lawyers were involved in a prior appeal, Carrington Place v. Milo. Since an earlier case called McKibbin v. Alterra, the Second District has been backpedaling while other courts have assisted in the clarification as we discussed here and here.

Full post as published by Florida Arbitration Law on December 06, 2009 (boomark / email).