Arbitration & Mediation

Second District Denies Nursing Home Arbitration, Finding Power of Attorney Was Limited to Property Rights

By Christopher B. Hopkins, Esq.

The Second District Court of Appeal denied arbitration in a nursing home case, finding the power-of-attorney was not authorized to sign such a document for the resident since the POA document only granted authority over property interests.

Once again, as we saw in Estate of McKibbin v. Alterra Health Care Corp., the court avoided referencing the POA language thus denying lawyers outside of the case from understanding exactly what language the court found restrictive. We can solve that problem. Briefs are provided in the hyperlinks below.

For a primer of recent power-of-attorney interpretation cases in Florida, see this prior post.

In Carrington Place of St. Pete, LLC; Traditions Management of Florida; et al. as to Carrington Place Nursing & Rehabilitation Center v. Estate of Jennie Milo through Annette Brito, the Second DCA (Davis, Northcutt and Villanti) found the durable power of attorney (DPOA) did not grant a nursing home resident's daughter authority to sign the admission agreement which contained an arbitration clause.

The court held that, "where nothing in a POA gives an attorney-in-fact legal authority to enter into an arbitration agreement..." then the trial court cannot grant arbitration. Relying upon two prior decisions, McKibbin and Jaylene v. Moots, the court held that arbitration agreements signed "where the POA unambiguously makes a broad, general grant of authority to the attorney-in-fact" should be upheld. Because the Panel found that the POA document here was restricted to property rights, no arbitration was ordered.

It is interesting that the McKibbin case did not set out the language at issue in that case (but denied arbitration) yet a subsequent panel on the Second District seemed to criticize that shortcoming in Jaylene v. Moots. Here, a different Panel of Second DCA judges likewise denied arbitration but declined to offer the restrictive language. Not helpful. Compare, for example, the inclusion of the wording in the recent First District's opinion in Five Points v. Mallory.

For the inquisitive, the briefs in the Milo case are more instructive (Initial Brief, Answer Brief, and Reply). Check the Reply Brief for the easiest full citation of the POA language.

Full post as published by Florida Arbitration Law on March 31, 2009 (boomark / email).