Good evening. Please be advised that yesterday the TN Sup. Ct. denied Kindred’s application for permission to appeal the COA’s decision in Deborah Mitchell v. Kindred.  The case again underscores the necessity
for a facility to ensure that: 1) a competent resident signs their own ADR agreement; or 2) proper authority exists for an agent to sign the ADR Agreement on the resident’s behalf.

Below is the original email on the Court of Appeals decision.

Rebecca

June 20, 2009
Subject: Mitchell v. Kindred – TN COA ADR opinion

Good day all. Attached is the latest TN COA case dealing with the issue
of authority and the enforcement of ADR agreements.  It should be noted
that this case is Deborah Mitchell v. Kindred, not to be confused with
Lovie Mitchell v. Kindred which was released 11-19-08 and also dealt
with enforceability of ADR agreements.  In this opinion, the COA
affirmed the trial court, finding that the resident’s daughter (who
signed the arbitration agreement) did not have a valid DPOA or any
other express grant of authority from her mother authorizing her to
sign the ADR agreement on her mother’s behalf.  The facts are familiar.

On 8-12-04, Deborah Mitchell ("Daughter") admitted her mother
("Decedent") to Defendant’s nursing home for walking rehabilitation.  5
days later, Daughter signed the admission documents for her mother,
including an ADR agreement.  Daughter stated that she had a power of
attorney but did not provide the nursing home with any documentation to
support her claim at that time.  A year later, Daughter filed suit
against Defendant asserting various claims.  Defendant sought to compel
arbitration based on a document executed by Decedent on 3-14-00
entitled "Revocation of Power of Attorney."  The document revoked a
previous grant of power to Decedent’s son and stated "I also would like
to make [Daughter] my power of attorney."  The trial court found this
to be insufficient evidence of Daughter’s authority to sign the ADR
agreement and refused to enforce the ADR agreement.  Defendants
appealed to the COA, who affirmed the trial court’s ruling.

The COA began by noting that Defendant, as the proponent of the ADR
agreement, must establish that the Daughter was authorized to sign on
Decedent’s behalf.  The court found that the 3-14-00 document was
"unclear or ambiguous" as to which powers it granted to Daughter and
that there was no indication as to when such powers would become
effective.  Because of these ambiguities, the COA considered evidence
of Decedent’s intention at the time of execution rather than looking to
the four corners of the document, itself.  The court considered
Daughter’s deposition testimony and found no evidence showing that
Decedent gave any present, express authority to Daughter through the
"Revocation of Power of Attorney" document or by any other means.
 Daughter testified that she and Decedent did not discuss Decedent’s
admission to the nursing home, the signing of any papers, or the ADR
agreement itself.

This opinion again underscores that if a resident, him/herself, is
unable to sign the ADR agreement upon admission to a nursing home, the
nursing home must, at or before the time of signing the ADR agreement,
comply with the requirements of TN’s medical surrogacy statute or
secure the resident’s:
1)    express
2)    grant of authority
3)    which is presently effective
4)    to admit the resident to the nursing home and/or sign contracts on the resident’s behalf.

The TN COA will not enforce ADR agreements without the each of these elements being met.

WE will keep you posted on developments in our region and have a great weekend. Rebecca

Rebecca Adelman

Author: Rebecca Adelman from Law Office of Rebecca Adelman
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