Docket No. S276545
Harrod v. Country Oaks Partners, LLC
IN THE SUPREME COURT OF
CALIFORNIA
MARK HARROD,
Plaintiff and Respondent,
v.
COUNTRY OAKS PARTNERS, LLC, et al.,
Defendants and Appellants.
S276545
Second Appellate District, Division Four
B312967
Los Angeles County Superior Court
20STCV26536
March 28, 2024
Justice Jenkins authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,
Groban, and Evans concurred.
HARROD v. COUNTRY OAKS PARTNERS, LLC
S276545
Opinion of the Court by Jenkins, J.
Under California’s Health Care Decisions Law (Prob.
Code, § 4600 et seq.),1 a principal may appoint a health care
agent to make health care decisions should the principal later
lack capacity to make them. In this case, a health care agent
signed two contracts with a skilled nursing facility. One, with
state-dictated terms, secured the principal’s admission to the
facility. The other made arbitration the exclusive pathway for
resolving disputes with the facility. This second contract was
optional and had no bearing on whether the principal could
access the facility or receive care. The issue before us is whether
execution of the second, separate, and optional contract for
arbitration was a health care decision within the health care
agent’s authority. It was not, and the facility’s owners and
operators may not, therefore, rely on the agent’s execution of
that second agreement to compel arbitration of claims arising
from the principal’s alleged maltreatment that have been filed
in court. We affirm the judgment of the Court of Appeal and
remand for further court proceedings.
I.
BACKGROUND
The Health Care Decisions Law authorizes competent
adults to draft powers of attorney for health care, a type of
1
Unless specified, further statutory references are to the
Probate Code.
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advance health care directive, and thereby “authorize [an] agent
to make health care decisions.” (§ 4671, subd. (a); see §§ 4605,
4629.) The law defines “health care” as “any care, treatment,
service, or procedure to maintain, diagnose, or otherwise affect
a patient’s physical or mental health condition.” (§ 4615.) It
further defines a “health care decision” as one “regarding the
patient’s health care, including . . . [¶] (1) Selection and
discharge of health care providers and institutions[;] [¶] (2
Approval or disapproval of diagnostic tests, surgical procedures,
and programs of medication, including mental health
conditions[;] [¶] (3) Directions to provide, withhold, or withdraw
artificial nutrition and hydration and all other forms of health
care, including cardiopulmonary resuscitation.” (§ 4617, subd.
(a).) “Subject to any limitations in the power of attorney for
health care,” an agent “may make health care decisions” and
“may also make decisions that may be effective after the
principal’s death,” such as approving organ donation, autopsies,
disposition of remains, and records releases. (§ 4683.
A competent adult desiring a power of attorney for health
care may, but need not, use the form found in section 4701.
(§ 4700.) Regardless of whether the adult executes this “form or
any other writing” to establish a power of attorney, the
provisions of the Health Care Decisions Law “govern the effect”
of the writing. (Ibid.
Charles Logan executed a power of attorney for health
care. He used, not the statutory form, but a California Medical
Association form patterned on, and specifically citing to, the
Health Care Decisions Law. Logan appointed his nephew, Mark
Harrod, as his “health care agent” to make “health care
decisions” should Logan’s primary physician find Logan unable
to make those decisions himself. Paraphrasing the portions of
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the Health Care Decisions Law defining health care decisions
(§ 4617) and decisions after death (§ 4683), the form Logan
signed authorized Harrod to (1) “consent, refuse consent, or
withdraw consent to any medical care,” including care to
artificially sustain life; (2) “choose or reject [the principal’s]
physician, other health care professionals or health care
facilities;” (3) “receive and consent to the release of medical
information;” and (4) authorize organ donation, an autopsy, and
disposal of remains.
About two years after executing this power of attorney,
Logan, then approaching his 77th birthday, fell, broke a femur,
and became unable to walk. He entered the Country Oaks Care
Center (Country Oaks), a skilled nursing facility, to obtain
living assistance and rehabilitative treatment. Harrod signed
two agreements with the facility on Logan’s behalf. The first
was an admission agreement that entitled Logan to care at the
facility and specified the services to be rendered, payment
terms, and facility rules. It was unalterable and its terms were
state-mandated. (Health & Saf. Code, § 1559.61 [“all skilled
nursing facilities . . . shall use a standard admission agreement
developed and adopted by the” state and “[n]o facility shall alter”
it unless directed].) The second agreement Harrod signed was
an arbitration agreement. Per the requirements of state law
applicable to long-term health care facilities and federal
regulations governing such facilities participating in Medicare
and Medicaid, the arbitration agreement appeared on a
separate form and was presented as optional. (See id.,
§ 1599.81, subds. (a), (b) [an arbitration agreement must not be
a precondition to facility admission and must “be included on a
form separate from the rest of the admission contract”]; 42
C.F.R. § 483.70(n) (2019) [facilities participating in Medicare
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HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
and Medicaid “must not require any resident or his or her
representative to sign an agreement for binding arbitration as a
condition of admission”].)2 A boxed warning atop this
agreement stated, “READ CAREFULLY — Not Part of
Admission Agreement,” and continued, “Resident shall not be
required to sign this arbitration agreement as a condition of
admission to this facility or to continue to receive care at the
facility.”3 The arbitration agreement stated disputes concerning
2
Neither compliance with, nor the enforceability of, the
requirements for arbitration agreements under Health and
Safety Code section 1599.81 or 42 C.F.R. § 483.70 (2019) is
before us.
3
The admissions paperwork also included a one-page form
stating, “I, Logan Charles, am able to sign for myself but would
to like [sic] authorize Harrod Mark my nephew to sign the
following documents on my behalf.” Below this statement, six
categories of documents are listed and next to each is a line with
a check mark. The checked categories of documents are:
temporary
consent
to
treat,
advance
directive
acknowledgement, influenza vaccine/pneumonia vaccine
consent, POLST (Physician Orders for Life-Sustaining
Treatment), informed consent for use of device, and California
admission packet. Below these selected options is a line on
which to print the patient’s name, with “Logan Charles” written
in. To the right is a line for the patient’s signature with a script
signature reading “Mark Harrod.” Country Oaks mentions this
form in its opening brief but does not argue it has any
significance to the question we face here. Thus, we need not
decide whether this form gave Harrod permission to sign the
California admission packet or, if it did, whether it authorized
Harrod to agree to arbitration. Nor need we address the
possibility that Logan, through this form or by any other act, led
defendants to believe Harrod had authority to act under a theory
of ostensible agency. (See Civ. Code, § 2300 [“An agency is
ostensible when the principal intentionally, or by want of
ordinary care, causes a third person to believe another to be his
agent who is not really employed by him”].
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Opinion of the Court by Jenkins, J.
medical care, the provision of services, and the admission
agreement or arbitration agreement would be arbitrated, not
litigated in court. Under the agreement, both parties abjured
“their constitutional right to have any such dispute decided in a
court of law before a jury.”
Based on the care he received during his approximately
one-month stay at Country Oaks, Logan, with Harrod acting as
his guardian ad litem,4 filed a lawsuit in a California superior
court against the facility’s owners and operators, Country Oaks
Partners, LLC, and Sun-Mar Management Services, Inc. Logan
alleged these defendants negligently withheld appropriate care,
resulting in Logan suffering a second fall and fracture, being
unnecessarily diapered, and developing pressure ulcers. In
addition to pleading a cause of action for common law
negligence, Logan asserted causes of action for elder abuse and
violations of his right as a resident of a skilled nursing facility
(Health & Saf. Code, § 1430, subd. (b)). Logan further asked the
superior court for a declaration that he was not bound by the
arbitration agreement that his health care agent, Harrod, had
signed.
Defendants moved to compel arbitration. The superior
court denied the motion. It reasoned Harrod’s power to make
health care decisions for Logan as his health care agent did not
4
Ad litem means “for the suit” in Latin. (Black’s Law Dict.
(11th ed. 2019) p. 53.) “When . . . a person who lacks legal
capacity to make decisions, or a person for whom a conservator
has been appointed is a party, that person shall appear either
by a guardian or conservator of the estate or by a guardian ad
litem appointed by the court in which the action or proceeding
is pending, or by a judge thereof, in each case.” (Code Civ. Proc.,
§ 372, subd. (a)(1).
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encompass the power to sign the optional arbitration agreement.
The Court of Appeal affirmed, agreeing that a health care
decision does not encompass optional, separate arbitration
agreements presented alongside mandatory facility admissions
paperwork. (Logan v. Country Oaks Partners, LLC (2022) 82
Cal.App.5th 365.) Several courts of appeal have reached the
opposite conclusion regarding a health care agent’s health care
decisionmaking authority. (See, e.g., Garrison v. Superior Court
(2005) 132 Cal.App.4th 253 [“The revocable arbitration
agreements were executed as part of the health care
decisionmaking process.”]; Hogan v. Country Villa Health
Services (2007) 148 Cal.App.4th 259, 268 [agreeing with
Garrison].) We now, in the context of Logan’s power of attorney
for health care, address this conflicting authority.5
II.
DISCUSSION
The parties assume Harrod’s selection of a skilled nursing
facility for Logan, pursuant to the first, mandatory contract for
admission, was within the scope of Harrod’s agency. They
disagree, however, whether Harrod’s authority to make “health
care decisions” — as granted by Logan’s power of attorney for
health care — encompassed Harrod’s separate and optional
decision, pursuant to the second contract, to bind Logan to
arbitrate disputes with the facility.
The meaning of a “health care decision” in Logan’s power
of attorney is firmly linked to the meaning of that term in the
5
Because Logan passed away while this case was pending
before us, Harrod, as Logan’s successor in interest, is now the
named plaintiff and respondent. We only discuss Harrod’s
authority as Logan’s agent pursuant to the power of attorney for
health care.
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Health Care Decisions Law. That law, which authorizes powers
of attorney for health care (§ 4671), provides a definition of the
term “health care decisions” (§ 4617) and instructs that its
provisions “govern the effect” of writings created under its
authority (§ 4700). In turn, Logan’s power of attorney, at its
very top, indicates that it is created under the authority of the
Health Care Decisions Law, invoking the Probate Code sections
4600–4805 that contain the law. Intention is the pole star when
interpretating written instruments. (See Civ. Code, § 1636;
Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59
Cal.4th 277, 288; Boyer v. Murphy (1927) 202 Cal. 23, 28 [intent
is “pole-star” in interpreting deed]; Todd v. Superior Court of
San Francisco (1919) 181 Cal. 406, 419 [seeking “the general
intent or predominant purpose of the instrument”]; Sullivan v.
Davis (1854) 4 Cal. 291, 292 [describing power of attorney
language as an “index of intention”].) Logan’s intention to
invoke and be governed by the Health Care Decisions Law, in
this case, seems plain. Moreover, neither party to this case
asserts any deviation between the meaning of “health care
decision” in Logan’s power of attorney and the Health Care
Decisions Law. (Cf. § 4681 [“Except as provided in subdivision
(b), the principal may limit the application of any provision of
this division” in the power of attorney].) Thus, we interpret
Logan’s power of attorney by reference not only to its terms, but
also to the relevant statutory provisions that govern it. (Cf.
Montrose Chemical Corp. of California v. Superior Court (2020
9 Cal.5th 215, 226 [reading insurance agreement “in light of
background principles of insurance law”]; Samson v.
Transamerica Ins. Co. (1981) 30 Cal.3d 220, 231; Swenson v. File
(1970) 3 Cal.3d 389, 393 [contracting parties “are presumed to
know and to have had in mind” the “existing law”].
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Additionally, the Health Care Decisions Law instructs
that when it “does not provide a rule governing agents under
powers of attorney, the law of agency applies.” (§ 4688.) Absent
disputed facts, the meaning of a written instrument (Johnson v.
Greenelsh (2009) 47 Cal.4th 598, 604), questions of statutory
interpretation (Davis v. Fresno Unified School Dist. (2023) 14
Cal.5th 671, 687), and the scope of an agent’s authority
(Metropolitan Life Ins. Co. v. State Bd. of Equalization (1982) 32
Cal.3d 649, 658; Oswald Machine & Equipment, Inc. v. Yip
(1992) 10 Cal.App.4th 1238, 1247) are matters we determine
independently as a matter of law. With these governing
standards in mind, we probe the meaning of “health care
decision” under Logan’s power of attorney, the Health Care
Decisions Law, and the law of agency.
A.
“Health Care Decision” in the Power of Attorney
and Statute
Whether interpreting a provision of a written instrument
or statute, we seek the drafters’ intent, and we start with the
plain meaning of the provision’s text and with its context within
the statute or instrument. (People v. Braden (2023) 14 Cal.5th
791, 804 [statutes]; (Hartford Casualty Ins. Co. v. Swift
Distribution, Inc., supra, 59 Cal.4th at p. 288 [written
instruments].) When a power of attorney is at issue, we have
highlighted the importance of plain meaning by stating an agent
operating under a power of attorney may not “go beyond it nor
beside it.” (Blum v. Robertson (1864) 24 Cal. 128, 140; see also
Johnston v. Wright (1856) 6 Cal. 373, 375.
1.
Definitional Provisions
As noted above, the Health Care Decisions Law specifies a
“health care decision” is one “regarding the patient’s health
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care” (§ 4617, subd. (a)), with “health care” defined as “any care,
treatment, service, or procedure to maintain, diagnose, or
otherwise affect a patient’s physical or mental health condition”
(§ 4615). Logan’s power of attorney does not quote these basic
definitional provisions. But Logan’s power of attorney, as well
as the Health Care Decisions Law, both inform our
interpretation of the term “health care decision” by listing
equivalent examples. Section 4617 states health care decisions
include “[s]election and discharge of health care providers and
institutions.” (§ 4617, subd. (a)(1).) Logan’s power of attorney
allows the agent to “choose or reject . . . health care
professionals or health care facilities.” Section 4617 also
provides that health care decisions include “[a]pproval or
disapproval of diagnostic tests, surgical procedures, and
programs of medication, including mental health conditions”
(§ 4617, subd. (a)(2)), and also whether “to provide, withhold, or
withdraw artificial nutrition and hydration and all other forms
of health care, including cardiopulmonary resuscitation”
(§ 4617, subd. (a)(3)). Logan’s power of attorney likewise
authorizes these types of decisions, allowing the agent to
consent to or refuse “tests, drugs, surgery,” “any medical care or
services,” or “the provision, withholding, or withdrawal of
artificial nutrition and hydration . . . and all other forms of
health care, including cardiopulmonary resuscitation.” Logan’s
power of attorney, in accord with other provisions of the Health
Care Decisions Law (§§ 4678, 4683), further permits the agent
to receive and release medical records so the agent can perform
his or her duties and to make decisions regarding disposition of
the body after death.
Established canons of statutory construction assist us in
ascertaining the meaning of a term primarily defined by way of
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a list of examples and the meaning of examples enumerated on
such a list. “ ‘[W]hen a statute contains a list or catalogue of
items, a court should determine the meaning of each by
reference to the others, giving preference to an interpretation
that uniformly treats items similar in nature and scope.’ ”
(Kleffman v. Vonage Holdings Corp. (2010) 49 Cal.4th 334, 343.
When we consider the meaning of one item on a list, we tend to
adopt a more “restrictive meaning” when to do otherwise would
“make the item markedly dissimilar to the other items in the
list.” (Moore v. California State Bd. of Accountancy (1992) 2
Cal.4th 999, 1012.) When a general term is defined through a
list of examples, we tend towards a definition of the general term
that is in concert with the items listed. (Winn v. Pioneer Medical
Group, Inc. (2016) 63 Cal.4th 148, 159; International Federation
of Professional & Technical Engineers, Local 21, AFL-CIO v.
Superior Court (2007) 42 Cal.4th 319, 342; Commission on Peace
Officer Standards & Training v. Superior Court (2007) 42
Cal.4th 278, 294; see also Civ. Code, § 3534 [“Particular
expressions qualify those which are general.”].) These
guidelines have particular force when, as here, there is no
broadening catchall provision amongst the listed items.
(Bernard v. Foley (2006) 39 Cal.4th 794, 807.
These canons of construction weigh against construing the
authority to select health care providers and institutions
(§ 4617, subd. (a)) to include the power to enter optional,
separate dispute resolution agreements, and against
interpreting the general term “health care decision” that
expansively. Each enumerated example of a health care
decision in the Health Care Decisions Law and in Logan’s power
of attorney directly pertains to who provides health care and
what may be done to a principal’s body in health, sickness, or
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death. There is no catchall provision, no express delegation of
power to make decisions that serve other purposes, and no
express grant of power to waive access to the courts, agree to
arbitration, or to otherwise negotiate about or accept any
dispute resolution method. A standalone arbitration agreement
would be “markedly dissimilar” (Moore v. California State Bd. of
Accountancy, supra, 2 Cal.4th at p. 1012) from agreements
about who provides medical care or what care they provide.
Thus, defining the term “health care decision” to include a
standalone arbitration agreement would not be “in concert with”
(Winn v. Pioneer Medical Group, Inc., supra, 63 Cal.4th at p.
159) the items listed and, therefore, with the apparent intent
evidenced by the definitional provisions of Logan’s power of
attorney or the Health Care Decisions Law it invokes.
2.
Further Context
Other portions of Logan’s power of attorney, as well as the
Health Care Decisions Law and the Probate Code, support this
interpretation of the term “health care decision.” (See People v.
Braden, supra, 14 Cal.5th at p. 841 [“ ‘ “ ‘ “[W]e consider portions
of a statute in the context of the entire statute and the statutory
scheme of which it is a part, giving significance to every word,
phrase, sentence, and part of an act in pursuance of the
legislative purpose.” ’ ” ’ ”]; Hartford Casualty Ins. Co. v. Swift
Distribution, Inc., supra, 59 Cal.4th at p. 288 [we interpret the
language of a written instrument “in context”].
We start with the Health Care Decisions Law’s enacted
legislative findings. The Legislature couched the law as
recognizing “the dignity and privacy a person has a right to
expect” and the “fundamental right to control the decisions
relating to [one’s] own health care, including the decision to have
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life-sustaining treatment withheld or withdrawn.” (§ 4650,
subd. (a).) The Legislature referenced “[m]odern medical
technology” and the “artificial prolongation of human life” while
noting the need to protect “individual autonomy” and the
“dignity” of patients facing end of life scenarios. (Id., subd. (b).
These findings reflect that the Health Care Decision Law’s roots
trace back to California’s pioneering “living will” statute, passed
in 1976, and the principle that advanced health care directives
are intended to ensure a patient’s consent to medical treatment.
(See Sabatino, The Evolution of Health Care Advance Planning
Law and Policy (2010) vol. 88, No. 2, 16 Millbank Q., 212–214.
These findings also align with a view of health care decisions as
personal, private, and about treatment. This tends to suggest
that neither the Legislature nor Logan would have viewed
decisions well beyond this ambit — such as whether to select
optional arbitration — as health care decisions.
In addition, explanatory language within the Health Care
Decisions Law’s optional form for advance health care directives
and within Logan’s power of attorney both point in the same
direction as the legislative findings. The statutory form begins
by explaining to the potential principal, “You have the right to
give instructions about your own physical and mental health
care. You also have the right to name someone else to make
those health care decisions for you. This form lets you do either
or both of these things. It also lets you express your wishes
regarding donation of organs and the designation of your
primary physician.” (§ 4701.) The form goes on to state that an
agent whose health care decisionmaking power is not otherwise
limited may make decisions about health care and about
disposition of remains and autopsies after death, mirroring the
language of sections 4617 and 4683. (§ 4701.) The form’s actual
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grant of health care decisionmaking authority states, “My agent
is authorized to make all physical and mental health care
decisions for me, including decisions to provide, withhold, or
withdraw artificial nutrition and hydration and all other forms
of health care to keep me alive, except as I state here:” (Ibid.
The form thus equates health care decisions with “instructions
about [the principal’s] physical and mental health care.” The
California Medical Association form that Logan used contained
similarly limited explanatory language: “This form lets you give
instructions about your future health care. . . . Your agent must
make health care decisions that are consistent with the
instructions in this document and your known desires. It is
important that you discuss your health care desires with the
person(s) you appoint as your health care agent, and with your
doctor(s).” Notably absent from the form and Logan’s power of
attorney is any suggestion that an appointed health care agent
is authorized to make decisions concerning dispute resolution.
In assessing what a health care decision includes, it is also
helpful to consider what the Legislature appears to have viewed
as not amounting to such decisions. For example, the Health
Care Decisions Law distinguishes health care decisions (see
§ 4617) from “decisions relating to personal care,” which a
principal may optionally delegate in a power of attorney for
health care (§ 4671, subd. (b)). Personal care decisions include
“determining where the principal will live, providing meals,
hiring household employees, providing transportation, handling
mail, and arranging recreation and entertainment.” (Ibid.) The
statute further contrasts the making of health care decisions
with the nomination of a conservator of the person or estate.
(§ 4672.) And although a power of attorney for health care may,
as Logan’s does, permit an agent to make “decisions that may be
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effective after the principal’s death” — including directing the
disposition of remains, an autopsy, or the release of records —
these decisions, too, are set forth outside the statutory definition
of health care decisions. (§ 4617; see §§ 4678, 4683.) That the
Health Care Decisions Law specifically permits delegation of
some arguably collateral decisions, such as those pertaining to
medical records or disposition of remains, suggests other,
unspecified decisions — such as a separate, optional decision
regarding dispute resolution — fall outside the bounds of what
legislators and principals to a power of attorney for health care
would consider a health care decision.
The definition of powers under the Health Care Decisions
Law (contained in Division 4.7 of the Probate Code) contrasts
with the definition of powers under the Uniform Statutory Form
Power of Attorney Act, a subsidiary of the Power of Attorney
Law (both contained in Division 4.5 of the Probate Code). The
Power of Attorney Law governs powers of attorney “with respect
to all lawful subjects and purposes” (§ 4000 et seq.; see § 4123
and the Uniform Statutory Form Power of Attorney Act
streamlines creation of such documents, enabling easy
delegation of statutorily defined powers (§ 4400 et seq.; see
§§ 4401, 4450–4463). We should be attuned to differences in
laws that are statutory neighbors and have, as shall be
explained, provisions that share history or interrelate. (See Los
Angeles County Metropolitan Transportation Authority v.
Alameda Produce Market, LLC (2011) 52 Cal.4th 1100, 1108
[“ ‘ “where a statute, with reference to one subject contains a
given provision, the omission of such provision from a similar
statute concerning a related subject is significant to show that a
different legislative intent existed with reference to the different
statutes” ’ ”]; Wells v. One2One Learning Foundation (2006) 39
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Cal.4th 1164, 1190 [“specific enumeration . . . in one context, but
not in the other, weighs heavily”]; see also FilmOn.com Inc. v.
DoubleVerify Inc. (2019) 7 Cal.5th 133, 144 [“we interpret
statutory language . . . in light of . . . analogous provisions” and
in “the context of its neighboring provisions”].
The Power of Attorney Law, the Uniform Statutory Form
Power of Attorney Act, and the predecessor to the Health Care
Decisions Law — which governed durable powers of attorney for
health care decisionmaking6 — were codified by a single,
integrated enactment in 1994. (Stats. 1994, ch. 307, § 16, pp.
1983–2038; see Legis. Counsel’s Dig., Sen. Bill No. 1907 (1993–
1994 Reg. Sess.) 5 Stats. 1994, Summary Dig., p. 117.) The bill
enacting the Health Care Decisions Law in 1999, which revised
6
The 1994 law governing durable powers of attorney for
health care empowered designated attorneys in fact to make
health care decisions, defined, then, as “consent, refusal of
consent, or withdrawal of consent to health care, or a decision to
begin, continue, increase, limit, discontinue, or not to begin any
health care.” (former § 4612.) The Law Revision Commission
comments accompanying the Health Care Decisions Law stated
that new section 4617, defining “health care decision” under the
current law, “supersedes former Section 4612 and is the same in
substance as Section 1(6) of the Uniform Health-Care Decisions
Act (1993), with the substitution of the reference to
cardiopulmonary resuscitation . . . for the uniform act reference
to orders not to resuscitate. Adoption of the uniform act
formulation is not intended to limit the scope of health care
decisions applicable under former law. Thus, like former law,
this section encompasses consent, refusal of consent, or
withdrawal of consent to health care, or a decision to begin,
continue, increase, limit, discontinue, or not to begin any health
care. Depending on the circumstances, a health care decision
may range from a decision concerning one specific treatment
through an extended course of treatment, as determined by
applicable standards of medical practice.”
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and recast the 1994 provisions authorizing durable powers of
attorney for health care, acknowledged the Power of Attorney
Law and the Uniform Statutory Form Power of Attorney Act,
referencing both in making “related and conforming changes.”
(See Stats. 1999, ch. 658, §§ 27–36, pp. 4853–4856; see Legis.
Counsel’s Dig., Assem. Bill No. 891 (1999–2000 Reg. Sess.) 5
Stats. 1999, Summary Dig., p. 296.
The Uniform Statutory Form Power of Attorney Act offers
a form that lists categories of statutorily defined powers that a
principal may choose to delegate. (§§ 4400, 4401, 4450–4463.
By placing initials next to a listed, pre-defined power, the
principal may authorize an agent to act in “any lawful way with
respect to the . . . initialed subjects,” which include real or
personal property transactions, banking transactions, business
operating transactions, beneficiary transactions, claims and
litigation, or personal and family maintenance. (§ 4401.) The
preamble to the form states, “THIS DOCUMENT DOES NOT
AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER
HEALTH-CARE DECISIONS FOR YOU.” (§ 4401; see Stats.
1994, ch. 307, § 16.) This admonition dovetails with the
Legislature’s prescription that the Power of Attorney Law
applies to “statutory form powers of attorney” but not to “powers
of attorney for health care” under the Health Care Decisions
Law. (§ 4050, subd. (a)(1)–(2); see Stats. 1999, ch. 658, § 27, p.
4853.
Looking at the definitions of the powers selectable under
the Uniform Statutory Form Power of Attorney Act — powers
the statute distinguishes from health care decisions — there are
notable inclusions. For instance, the power to make decisions
about “personal and family maintenance” includes the power to
“[p]ay for . . . necessary medical, dental, and surgical care,
16
HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
hospitalization, and custodial care.” (§ 4460, subd. (a)(3).) The
power to make decisions about “claims and litigation,” moreover,
includes the power to “submit to arbitration . . . with respect to
a claim or litigation” and to “execute and file or deliver a . . .
waiver, . . . agreement, or other instrument in connection with
the prosecution, settlement, or defense of a claim or litigation.”
(§ 4459, subds. (d), (e).) Additionally, for each power granted in
a statutory form power of attorney — be it a power over personal
maintenance or other matters — the agent is separately
authorized, in exercising power for that subject, to do a variety
of things, including to “[p]rosecute, defend, submit to
arbitration, settle, and propose or accept a compromise with
respect to, a claim existing in favor or against the principal,” and
to “do any other lawful act with respect to the subject.” (§ 4450,
subds. (b), (d), (j).
Comparing the Health Care Decisions Law and the
Uniform Statutory Form Power of Attorney Act is instructive in
several ways. We first note the Legislature’s specific references
in the Uniform Statutory Form Power of Attorney Act to an
agent’s power to settle claims or submit claims to arbitration.
Such references are absent from the Health Care Decisions Law.
The “specific enumeration” of these powers in the power-
defining provisions of the Uniform Statutory Form Power of
Attorney Act “weighs heavily against” implying similar or
related powers in the context of a health care decision defined
under the Health Care Decisions Law. (See Wells v. One2One
Learning Foundation, supra, 39 Cal.4th at p. 1190.) We next
note the Uniform Statutory Form Power of Attorney Act
expressly acknowledges a distinction between the decisions it
authorizes, such as those related to claims and litigation, and
health care decisions. In particular, the warning atop the
17
HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
traditional power of attorney form cautions, in block capital
letters, that it does not authorize health care decisions. (§ 4401.
Furthermore, in discerning the scope of the term “health
care decision,” as envisioned by the Legislature and, in turn,
Logan’s power of attorney, our precedent instructs we should not
only address the differences in the various Probate Code
provisions, but strive to harmonize them, avoiding anomalies.
(First Student Cases (2018) 5 Cal.5th 1026, 1035 [“We construe
statutory language in the context of the statutory framework,
seeking to discern the statute’s underlying purpose and to
harmonize its different components”].) Defining health care
decisions as including decisions about dispute resolution that
are not necessary for health care might create unnecessary
tension between the two regimes for powers of attorney and
between agents designated under them. Doing so, for example,
could undermine the expectations of a principal who designates
one agent to make health care decisions and another agent,
under the form power of attorney, to make decisions about
claims and litigation. A principal executing both form powers of
attorney found in sections 4401 and 4701 could readily view
health care decisions as separate from decisions involving
claims and litigation, because the forms expressly make this
distinction. In that case, the principal might expect and prefer
the agent in charge of claims and litigation to accept or reject
optional arbitration agreements. A broad construction of the
term health care decision might, therefore, and contrary to the
principal’s expectations, “override” a grant of power over claims
and litigation decisions. (See Johnson v. Kindred Healthcare,
Inc. (Mass. 2014) 2 N.E.3d 849, 856, 859 [reaching a similar
18
HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
conclusion under Massachusetts law].)7 On the other hand, if
arbitration is, as here, not a condition of treatment, a health
care agent’s lack of authority to enter arbitration agreements
would not deprive a principal of health care. (Cf. Owens v. Nat’l
Health Corp. (Tenn. 2007) 263 S.W.3d 876, 885 [raising this
concern regarding arbitration agreements included in a contract
required for admission].
Moreover, interpreting the term “health care decision” to
exclude optional and separate agreements to arbitrate fits best
with the Legislature’s decision to use that term in the Health
Care Decisions Law to describe the scope of authority not only
for those (like Harrod) who act pursuant to powers of attorney
for health care, but also for surrogates, including next of kin or
close friends. These surrogates may be selected by the patient
in haste upon entering a facility (§ 4711)8 or selected for the
patient by a provider or facility when there is no recognized
7
In line with this observation, we disapprove dicta in
Hutcheson v. Eskaton FountainWood Lodge (2017) 17
Cal.App.5th 937, 956–957, suggesting a person empowered to
make decisions about all a principal’s claims and litigation lacks
authority to do so when the party across the contracting table is
a health care facility or provider. We have no occasion to
address Hutcheson’s ultimate concern: whether an agent with
power over claims and litigation, but without power over health
care decisions, may agree to arbitration with a health care
facility with whom the agent had no right to contract for services
in the first instance. (See id. at p. 957.
8
“A patient may designate an adult as a surrogate to make
health care decisions by personally informing the supervising
health care provider or a designee of the health care facility
caring for the patient. The designation of a surrogate shall be
promptly recorded in the patient’s health care record.” (§ 4711,
subd. (a).
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HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
health care decisionmaker (§ 4712).9 One of the purposes of the
Health Care Decisions Law was to “set[] out uniform standards
for the making of health care decisions by third parties,”
whether
by
conservators,
agents,
or
surrogates.
(Conservatorship of Wendland (2001) 26 Cal.4th 519, 539–540;
see § 4617 [defining a health care decision as one “made by a
patient or the patient’s agent, conservator, or surrogate”].
Before the Health Care Decision Law’s enactment, Health
and Safety Code section 1418.8 addressed the ability of next of
kin to represent residents in skilled nursing facilities or
intermediate care facilities who lacked capacity to make health
care decisions. (Health & Saf. Code, § 1418.8; see Stats 1992 ch.
1303, § 1, pp. 6326–6328.) Under that provision, when “there is
no person with legal authority to make . . . decisions concerning
[a] resident’s health care,” an attending physician at the facility,
after following certain procedures, may pursue an intervention
that would otherwise require informed consent. (Health & Saf.
Code, § 1418.8, subd. (a).) A person with legal authority to make
these decisions includes a “next of kin.” (Id., subd. (c).) Our
appellate courts have held that next of kin, whether empowered
to make medical decisions either under this statute or through
principles of ostensible agency, lack authority to enter separate,
optional arbitration agreements with nursing facilities.
(Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298,
302 [applying Health & Saf. Code, § 1418.8 and concluding
“Defendants do not explain how the next of kin’s authority to
9
Under specified conditions, “a health care provider or a
designee of the health care facility caring for the patient may
choose a surrogate to make health care decisions on the patient’s
behalf, as appropriate in the given situation.” (§ 4712, subd.
(b).
20
HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
make medical treatment decisions for the patient at the request
of the treating physician translates into authority to sign an
arbitration agreement on the patient’s behalf at the request of
the nursing home”]; Goliger v. AMS Properties, Inc. (2004) 123
Cal.App.4th 374, 377 [applying ostensible agency to reach a
similar conclusion]; Flores v. Evergreen at San Diego, LLC
(2007) 148 Cal.App.4th 581, 594 [applying Health & Saf. Code,
§ 1418.8 and concluding “Unlike admission decisions and
medical care decisions, the decision whether to agree to an
arbitration provision in a nursing home contract is not a
necessary decision that must be made to preserve a person’s
well-being. Rather, an arbitration agreement pertains to the
patient’s legal rights, and results in a waiver of the right to a
jury trial”].
The Health Care Decisions Law built on Health and Safety
Code section 1418.8, and it expressly allows a health care
provider or health care facility designee to appoint, as needed,
next of kin and other close family or friends as surrogates.10
10
The uniform act underlying California’s Health Care
Decisions Law and the initial draft of California’s law would
have allowed next of kin to become surrogates. (2000 Health
Care Decisions Law and Revised Power of Attorney Law (Mar.
2000) 30 Cal. Law Revision Com. Rep. (2000) pp. 25–31.) That
draft of the law, as noted in Law Revision Commission’s report,
would have expanded the “next of kin” provision applicable to
medical treatment decisions in nursing homes to health care
decisions in other contexts. (2000 Health Care Decisions Law
and Revised Power of Attorney Law, at p. 18.) But legislators
could not agree, at that time, on the provisions governing who
could become a surrogate in the absence of any choice by the
patient or action by a court. (See 1 Zimring & Bashaw, Cal.
Guide to Tax, Estate & Financial Planning for the Elderly (2023
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HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
(§ 4712, added by Stats. 2022, ch. 782, § 2; 2000 Health Care
Decisions Law and Revised Power of Attorney Law, supra, 30
Cal. Law Revision Com. Rep. at p. 18.) Thus today, the health
care decisionmaker for an incapacitated patient is, first, a
patient-selected surrogate, second, a patient’s “agent pursuant
to an advance health care directive or a power of attorney for
health care,” third, a “conservator or guardian of the patient
having the authority to make health care decisions for the
patient,” and, fourth, a close family member or friend designated
by a health care provider or facility. (§ 4712, subds. (a), (b); see
also § 4643 [“ ‘Surrogate’ means an adult, other than a patient’s
agent or conservator, authorized under this division to make a
health care decision for the patient”].
The Legislature’s decision to invest in each of these four
categories of representatives the authority to make “health care
decisions” further suggests, whether or not the power of each
type of representative is fully equivalent, that the Legislature
intended the authority to make health care decisions to concern
matters more closely related to health care. The authority to
make health care decisions may devolve upon not only agents
carefully selected in advance, but also on surrogates the
principal chooses in emergency situations or even those the
health care provider chooses itself. Because the statute gives
both agents and as-needed surrogates authority to make health
care decisions, that authority, when exercised pursuant to a
power of attorney such as Logan’s, is not best understood as
§ 3.04.) Initially, then, the law simply allowed patients to
designate or disqualify surrogates, but did not set forth a process
for how next of kin might be selected for this role. (Former
§§ 4711, 4715.
22
HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
relating to every possible aspect of a transaction with a skilled
nursing facility, such as optional, separate agreements that do
not affect health care or the selection of the facility.11
B.
Agency Law
Defendants, the facility owners and operators, contend
Civil Code section 2319, part of our state’s law of agency, imbued
Logan’s health care decisionmaking agent with authority to
agree to arbitration. As noted above, where the Health Care
Decisions Law “does not provide a rule governing agents under
powers of attorney, the law of agency applies.” (§ 4688.) Since
1872, section 2319 of the Civil Code has conferred an agent with
authority “[t]o do everything necessary or proper and usual, in
the ordinary course of business, for effecting the purpose of his
agency.” (Civ. Code, § 2319, subd. (1).
Defendants assert selecting arbitration for dispute
resolution is a “proper and usual” act for someone otherwise
empowered to make health care decisions and to contract with
a health care provider. Civil Code section 2319, in defendants’
view, either provides guidance on the scope of “health care
decisions” otherwise missing from the Health Care Decisions
Law or counteracts any narrow construction of “health care
11
We may consult other indicia of legislative intent,
including legislative history or public policy, to derive a statute’s
meaning if statutory language, read in context, “permits more
than one reasonable interpretation.” (People v. Braden, supra,
14 Cal.5th at p. 804.) Here, neither defendants nor their
supporting amici curiae identify legislative history that casts
doubt on our proposed construction of “health care decision.”
Nor do their policy arguments about the general cost-savings
benefits of arbitration convince us to “ ‘strain to discern (because
we are not free to impose)’ ” a different meaning. (Bernard v.
Foley (2006) 39 Cal.4th 794, 814.
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HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
decision” otherwise inherent in that law or Logan’s power of
attorney. Harrod disagrees, asserting there are no gaps in the
Health Care Decisions Law and there is nothing about an
optional, separate arbitration agreement that effectuates the
purpose of health care decisionmaking and Harrod’s agency.
Harrod’s view is closer to the mark.
Civil Code section 2319 embodies the notion of implied
authority — that an agent expressly granted a specific power
should have sufficient authority to effectuate it. (See Madden v.
Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 706
(Madden) Robbins v. Pacific Eastern Corp. (1937) 8 Cal.2d 241,
285.) This rule is a longstanding feature of agency law. (Story,
Commentaries on the Law of Agency, as a Branch of Commercial
and Maritime Jurisprudence, with Occasional Illustrations
From the Civil and Foreign Law (8th ed., 1874) § 58, p. 71 (Story
on Agency); Reynolds, Bowstead & Reynolds on Agency (17th ed.
2001) ¶¶ 3–018, 3–019, p. 102; 1 Mechem, A Treatise on the Law
of Agency (2d ed. 1914) § 715, p. 502; Rest.3d Agency, § 2.02,
com. d and reporter’s note d.) The assumption is “the principal
does not wish to authorize what cannot be achieved if necessary
steps are not taken by the agent, and that the principal’s
manifestation often will not specify all steps necessary to
translate it into action.” (Rest.3d Agency, § 2.02, com. d.
The nature of the task delegated in a power of attorney
itself provides a limit on the powers to be implied. An agent
operating under a power of attorney may not “go beyond it nor
beside it, though it is competent for [the agent] to perform all
such subordinate acts as are usually incident to or necessary to
effectuate the object expressed. In order to bind the principal in
such case, it must appear that the act done by the agent was in
the exercise of the power delegated, and within its limits.”
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HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
(Blum v. Robertson, supra, 24 Cal. at p. 140.) Put another way,
an implied power “must be within the ultimate objective of the
principal . . . .’ ” (Garber v. Prudential Ins. Co. (1962) 203
Cal.App.2d 693, 701–702, quoting Rest.2d Agency, § 229, com.
B, p. 508.) The question is “whether the agent was engaged
strictly in an endeavor to bring about a result for which his
services were engaged.” (Garber, at p. 703.) “[G]eneral words
in powers of attorney are always limited by the express purposes
of the power” such that we have said if an agency may be “fully
performed without” an unenumerated power, that power will
not be viewed as within the agent’s purview. (Palomo v. State
Bar (1984) 36 Cal.3d 785, 794 & fn. 5.) To be implied, a power
would have to be “in pursuit of ‘the said services’ ” identified in
the power of attorney. (Ibid.
In Madden, a case defendants view as dispositive to our
agency analysis, we addressed the intersection of implied
agency, contracting for medical services, and arbitration. We
asked “whether an agent or representative, contracting for
medical services on behalf of a group of employees, has implied
authority to agree to arbitration of malpractice claims of
enrolled employees arising under the contract.” (Madden,
supra, 17 Cal.3d at p. 702.) We first noted that the Government
Code authorized a state retirement board “to negotiate contracts
for group medical plans for state employees” (id. at p. 705) and
required inclusion of “a grievance procedure to protect the rights
of the employees” (id. at p. 704). We concluded the board acted
as the agent of employees when negotiating contract terms
within the scope of its authority. (Id. at pp. 705–706; see Gov.
Code, § 22793 [empowering the board to contract for health
benefit plans].) Thus, the board could, under Civil Code section
2319, agree to things “proper and usual” to further that purpose.
25
HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
(Madden, at p. 706.) We then held that arbitration is a “ ‘proper
and usual’ means of resolving malpractice disputes” and that
the board, as an agent “empowered to negotiate a group medical
contract” for the state employees, could agree to an arbitration
clause. (Id. at p. 706.
Madden is distinguishable.12 There, a state board had
express power, pursuant to statute, to “negotiate contracts for
group medical plans” that included a “grievance procedure.”
Therefore, the state board, under agency law, could adopt proper
and usual means in pursuit of this contracting authority,
including choosing proper and usual terms for dispute
resolution, such as arbitration. In contrast to the statutory
grant of authority in Madden, the grant of power to Harrod in
this case, under a power of attorney for health care, did not
mention the power to broadly negotiate contracts or select a
12
Nor does the case Madden draws upon in explaining its
result, Doyle v. Giuliucci (1965) 62 Cal.2d 606, assist
defendants. (See Madden, supra, 17 Cal.3d at p. 708.) Doyle
concluded that a parent’s power to enter into a contract for
medical services on behalf of a child allows the parent to bind
the child to an arbitration provision included within that
contract. (Doyle, at pp. 607, 610.) No one contends that the
nephew-uncle relationship between Harrod and Logan is akin to
the parent-child relationship in Doyle, or that it implicates the
“right and duty” of parents, codified by statute, “to provide for
the care of [their] child.” (Doyle, at p. 610, citing Civil Code,
former § 196, and Penal Code, § 270; see Fam. Code, § 3900.
Doyle did not evaluate the meaning of a “health care decision”
that could be made by an agent, surrogate, or conservator,
absent such a special familial relationship. Nothing we say here
addresses whether any particular familial relationship would
itself convey authority to agree to arbitration with a skilled
nursing facility.
26
HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
dispute resolution method. Rather, it merely granted Harrod
the authority to make “health care decisions.”
If, under Madden, selecting arbitration as a contract term
serves the purpose of statutorily authorized contract
negotiation, choosing a dispute resolution method does not
similarly serve the purpose of making “health care decisions”
when that choice is contained in a side agreement with no
impact on health care or who administers it. The authority to
make health care decisions — here, the authority to obtain
skilled nursing care — could be “fully performed” without
reference to that side agreement. (Palomo v. State Bar, supra,
36 Cal.3d at p. 794 & fn. 5.) And accepting or rejecting that side
agreement could not be said to be “in pursuit of” (ibid.) or to
“effectuate” (Blum v. Robertson, supra, 24 Cal. at p. 140) a
health care decision. “The power” bestowed upon an agent “is to
be construed with reference to the subject-matter, and all the
words used in conferring it . . . .” (Beckman v. Wilson (1882) 61
Cal. 335, 336.) Thus, to the extent general agency principles
might aid us here in divining the scope of a health care decision
(see § 4688), we employ them consistently with what we have
gleaned from examining the Health Care Decisions Law and
Logan’s power of attorney on this subject. We remain mindful
that the Legislature, and in turn Logan, contemplated a “health
care decision” would concern personal decisions such as provider
and treatment selection.
Despite the different grants of authority at issue in
Madden and in cases involving the Health Care Decisions Law,
several Courts of Appeal have read Madden as supporting
defendants’ position that the power to make health care
decisions, under the law and powers of attorney invoking it, does
include the power to enter optional, separate arbitration
27
HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
agreements with health care providers. (Garrison v. Superior
Court, supra, 132 Cal.App.4th at p. 267; Hogan v. Country Villa
Health Services, supra, 148 Cal.App.4th at p. 267.) But having
reviewed the deep-seated agency principles governing implied
powers under powers of attorney and the Madden decision, and
having recognized the difference between the power to contract
delegated in Madden and the power to make health care
decisions delegated here, these Courts of Appeal appear to have
taken Madden farther than it and the law of agency should go
in this context.13 (See Logan v. Country Oaks Partners, LLC,
13
Garrison, and Hogan after it, cite other provisions of the
Health Care Decisions Law to support the result they reach,
noting a “combined effect” with the implied agency principles of
Civil Code section 2319. (Garrison, supra, 132 Cal.App.4th at
pp. 265–267; Hogan, supra, 148 Cal.App.4th at pp. 265–267.
But those other provisions do not bear on whether an agreement
to arbitrate is a health care decision. Probate Code section 4683,
subdivision (a), merely states an agent for health care decisions
may make them “to the same extent the principal could make”
them. This offers no definition of the critical term. Subdivision
(b) of that section allows an agent under a power of attorney for
health care to make decisions “that may be effective after
death.” But this, too, offers no guidance. Arbitration is hardly
best categorized as a decision effective after death. After all, an
agent would typically agree to arbitrate health care disputes
while the principal is still alive and in need of care, an
arbitration over health care might well take place while the
principal is still alive, and, as discussed (at p. 12, ante), under
the Health Care Decisions Law, these post-death decisions are
categorized separately from health care decisions and are
exemplified by approving organ donation, autopsies, disposition
of remains, and records releases — not matters such as
arbitration. Finally, Probate Code section 4684, in requiring an
agent to “make . . . health care decision[s] in accordance with a
principal’s individual health care instructions” or known wishes,
28
HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
supra, 82 Cal.App.5th at p. 373 [“The holding in Madden is
inapplicable” as “[t]here is nothing . . . ‘necessary or proper and
usual’ about signing an optional arbitration agreement ‘for
effecting the purpose of [the] agency,’ i.e., placing [the principal]
into a skilled nursing facility”]; cf. Young v. Horizon West, Inc.
(2013) 220 Cal.App.4th 1122, 1129 [“to the extent” Garrison
broadly interpreted “health care decision” as including an
arbitration decision, “we disagree with its conclusion”].) We
therefore cannot, and do not, equate all agreements between a
patient and a health care facility, regardless of their
circumstances and their relation to obtaining health care, with
health care decisions.14
Having considered the meaning of a “health care decision”
within Logan’s power of attorney, in light of the Health Care
or otherwise, “in accordance with the agent’s determination of
the principal’s best interest,” likewise does not resolve the
matter. It states how health care decisions should be made, not
what they encompass.
14
Hogan, supra, 148 Cal.App.4th at p. 267, is correct that
Health and Safety Code section 1599.81, which prohibits
arbitration agreements from being a precondition to facility
admission, plainly contemplates that patients and long-term
health care facilities will enter into arbitration agreements. (Cf.
42 C.F.R. § 483.70(n) [imposing a similar rule on facilities
participating in Medicare and Medicaid].) Although section
1599.81 suggests the Legislature views arbitration agreements
as permissible in this context, it does not suggest the Legislature
viewed these arbitration agreements as health care decisions or
as effectuating such decisions, especially when presented as
unnecessary to a patient’s admission. Nor does the statute tell
us who the Legislature thought should have authority to agree
to arbitration. The statute and related federal regulations show,
if anything, a view of arbitration agreements as distinct from
decisions critical to receiving health care.
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HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
Decisions Law and the Probate Code, we conclude that the most
reasonable construction of that term excludes the optional,
separate arbitration agreement with defendants. Resort to
agency law bolsters, rather than undermines, this conclusion.15
15
In doing so, we align California with the published
opinions of numerous other state courts that — after reviewing
powers of attorney formed under state statutes akin to the
Health Care Decisions Law — conclude an agreement to
arbitrate, particularly when optional and separate, is not a
health care decision within an agent’s power. (Coleman v.
United Health Services of Ga. (Ga.Ct.App. 2018) 812 S.E.2d 24,
26; Parker v. Symphony of Evanston Healthcare, LLC
(Ill.App.Ct. 2023) 220 N.E.3d 455, 463; Ping v. Beverly Enters.
(Ky. 2012) 376 S.W.3d 581, 592, 594; Johnson v. Kindred
Healthcare, Inc., supra, 2 N.E.3d at pp. 851–859; Dickerson v.
Longoria (Md. 2010) 995 A.2d 721, 731, 736–739; Primmer v.
Healthcare Indus. Corp. (Ohio Ct.App. 2015) 43 N.E.3d 788, 789,
795; Williams v. Smyrna Residential, LLC (Tenn., Feb. 16, 2024,
M2021-00927-SC-R11-CV) __ S.E.2d __ [2024 Tenn. LEXIS 44,
at *18]; Tex. Cityview Care Ctr., L.P. v. Fryer (Tex.Ct.App. 2007
227 S.W.3d 345, 349, 352–353; Miller v. Life Care Ctrs. of Am.,
Inc. (Wyo. 2020) 478 P.3d 164, 166–167, 172–173; cf. Koricic v.
Beverly Enters.– Neb., Inc. (Neb. 2009) 773 N.W.2d 145, 151
[agent with authority arising from practice of signing medical
documents was not empowered to execute optional arbitration
agreement]; Arredondo v. SNH SE Ashley River Tenant, LLC
(S.C. 2021) 856 S.E.2d 550, 557–558 [optional arbitration
agreement was not “necessary” to making health care decisions];
Lujan v. Life Care Centers of Am. (Colo.Ct.App. 2009) 222 P.3d
970, 973 [statutory surrogate for health care decisions could not
agree to optional arbitration]; Blankfeld v. Richmond Health
Care, Inc. (Fla.Dist.Ct.App. 2005) 902 So.2d 296 [same];
Mississippi Care Ctr. of Greenville, LLC v. Hinyub (Miss. 2008
975 So. 2d 211, 218 [same]; Gayle v Regeis Care Ctr., LLC
(N.Y.App.Div. 2021) 191 A.D.3d 598, 599–600 [same]; State ex
rel. AMFM, LLC v. King (W.Va. 2013) 740 S.E.2d 66, 72 [same].
One published opinion appears to take the opposite approach to
30
HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
C.
Kindred
Defendants argue if we interpret, as we have, the term
“health care decision” in Logan’s power of attorney to exclude
the decision to accept an optional, separate arbitration
agreement, that decision would so disfavor arbitration as to
violate the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.
and, in particular, the high court’s decision in Kindred Nursing
Centers. L.P. v. Clark (2017) 581 U.S. 246, 250 (Kindred).) We
disagree.
powers of attorney and optional arbitration agreements.
(Moffett v. Life Care Ctrs. of Am. (Colo.Ct.App. 2008) 187 P.3d
1140, 1141–1142, 1147 [concluding the holder of a medical
durable power of attorney may, in selecting a long-term health
care facility, execute “applicable admissions forms” including an
optional arbitration agreement, but also noting that holder had
powers under a general power of attorney, and both powers of
attorney, which were not in the record, would need to be
reviewed on remand to see if they curtailed arbitration
authority], affirmed on other ground in Moffett v. Life Care Ctrs.
of America (Colo. 2009) 219 P.3d 1068, 1071 [declining to reach
“whether a person holding a medical durable power of attorney
is authorized to sign an arbitration agreement on behalf of an
incapacitated patient”].) A few others have reached a different
result based on powers of attorney with broader or different
language. (E.g., Ingram v. Chateau (Mo. 2019) 586 S.W.3d 772,
776 [because a voluntary arbitration agreement “was presented
in connection with Ingram’s admission to Brook Chateau, there
was no reason for Hall to doubt she had the authority to sign it
on Ingram’s behalf as part of her express ‘full authority’ ” under
a power of attorney to “move” Ingram into a residential care
facility].
Ultimately, the majority view better aligns with Logan’s
power of attorney, the arbitration agreement here, and
California’s Health Care Decisions Law and its law of agency.
31
HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
Congress enacted the FAA “in response to judicial hostility
to arbitration. Section 2 of the statute, by making arbitration
agreements ‘valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any
contract,’ ” establishes an “ ‘an equal-treatment principle: A
court may invalidate an arbitration agreement based on
“generally applicable contract defenses” like fraud or
unconscionability, but not on legal rules that “apply only to
arbitration or that derive their meaning from the fact that an
agreement to arbitrate is at issue.” ’ ” (Viking River Cruises, Inc.
v. Moriana (2022) 596 U.S. 639, 649–650, quoting 9 U. S. C., § 2,
and Kindred, supra, 581 U.S. at p. 251.) When the FAA
applies — that is, when the contracting parties are sufficiently
involved in interstate commerce (see Allied-Bruce Terminix Cos.
v. Dobson (1995) 513 U.S. 265) — the FAA “preempts any state
rule discriminating on its face against arbitration” and
“displaces any rule that covertly accomplishes the same
objective by disfavoring contracts that (oh so coincidentally
have the defining features of arbitration agreements.” (Kindred,
at p. 251.
In Kindred, Kentucky’s Supreme Court had invalidated
two agent-signed arbitration agreements — in one instance,
where a power of attorney was plainly broad enough to give the
agent the power to sign, and in another instance, where this was
not so. (Kindred, supra, 581 U.S. at p. 250.) Regarding the
broader power of attorney, the state court held “an agent could
deprive her principal of an ‘adjudication by judge or jury’ only if
the power of attorney ‘expressly so provide[d],’ ” which it had
not. (Ibid.) In so holding, the state court emphasized the
“sacred,” “inviolate” nature of the jury-trial right. (Id. at p. 252.
The high court held that the FAA preempted this “clear-
32
HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
statement rule.” (Kindred, supra, 581 U.S. at pp. 251–254.
This rule, the high court reasoned, “hing[ed] on the primary
characteristic of an arbitration agreement — namely, a waiver
of the right to go to court and receive a jury trial.” (Id. at p. 252.
The high court found it telling that no other Kentucky court had
identified any other “ ‘fundamental constitutional rights’ held by
a principal” that, to be waived, required an explicit grant of
authority in a power of attorney. (Id. at p. 253.) As for the
Kentucky Supreme Court’s conjecture that its clear-statement
rule might require a principal’s explicit authorizations for an
agent to intrude on certain other fundamental rights — such as
by waiving a right to worship freely, or by arranging a
principal’s marriage or binding the principal to servitude — the
high court called such examples “patently objectionable and
utterly fanciful.” (Id. at p. 253.) It concluded that placing the
choice to arbitrate alongside these other decisions evidenced an
impermissible “ ‘hostility to arbitration’ ” because of its nature.
(Id. at p. 254.) Accordingly, the high court reversed the
Kentucky Supreme Court as to the broad power of attorney and
ordered arbitration. Regarding the narrower power of attorney,
however, the high court remanded, reasoning that if the
interpretation of the narrower power of attorney was “wholly
independent of the . . . clear-statement rule, then nothing we
have said disturbs it.”16 (Kindred, supra, 581 U.S. at p. 256.
Assuming the FAA applies here, Kindred does not
“disturb” our conclusions regarding the scope of a health care
16
On remand, the Kentucky Supreme Court determined the
clear-statement rule had played no role in its decision and left
its previous decision, denying arbitration, in place. (Kindred
Nursing Centers L.P. v. Wellner (Ky. 2017) 533 S.W.3d 189, 194.
33
HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
agent’s powers. For instance, we have not revisited the holding
in Madden, supra, 17 Cal.3d at page 706, that arbitration, if
agreed to, is a “ ‘proper and usual’ means of resolving
malpractice disputes.” A principal or any properly authorized
agent may, under Madden, agree to arbitration. What we
conclude is that a “health care decision,” under our Health Care
Decisions Law and Logan’s power of attorney for health care,
excludes an optional, separate agreement that does not
accomplish health care objectives. This outcome does not
emerge from or reflect hostility towards arbitration. Nor does it
depend on a clear-statement rule. Rather, it derives from the
scope of the health care decisionmaking power Logan granted to
Harrod — as determined from generally applicable legal
principles — and the conclusion that agreeing to an optional,
separate arbitration agreement with a skilled nursing facility is
not a health care decision. (See Garcia v. KND Development 52,
LLC (2020) 58 Cal.App.5th 736, 747 [discussing Kindred’s
inapplicability when court relied on “generally applicable law”].
Logan himself could have agreed to arbitration, whether before
or after any dispute arose. Likewise, any agent of Logan
operating under a broader power of attorney, whether that
power of attorney contained a clear statement of the power to
agree to arbitration or utilized more general language
encompassing that power, might have bound Logan to arbitrate.
Logan’s power of attorney here, however, did not make Harrod
such an agent.
34
HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
III. DISPOSITION
We affirm the judgment of the Court of Appeal.17
JENKINS, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
EVANS, J.
17
We disapprove Garrison v. Superior Court, supra, 132
Cal.App.4th 253 and Hogan v. Country Villa Health Services,
supra, 148 Cal.App.4th 259 to the extent they are inconsistent
with this opinion.
35
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Harrod v. Country Oaks Partners, LLC
Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published) XX 82 Cal.App.5th 365
Review Granted (unpublished)
Rehearing Granted
Opinion No. S276545
Date Filed: March 28, 2024
Court: Superior
County: Los Angeles
Judge: Monica Bachner
Counsel:
Cole Pedroza, Kenneth R. Pedroza, Cassidy C. Davenport; Buchalter,
Harry W.R. Chamberlain II, Robert M. Dato; Sun Mar Management
Services, Trent Evans, Kevin Khachatryan, Julieta Y. Echeverria and
Brittany A. Ortiz for Defendants and Appellants.
Tucker Ellis and Traci L. Shafroth for California Medical Association,
California Dental Association and California Hospital Association as
Amici Curiae on behalf of Defendants and Appellants.
Hooper, Lundy & Bookman, Mark E. Reagan and Jeffrey Lin for
California Association of Health Facilities as Amicus Curiae on behalf
of Defendants and Appellants.
Carroll, Kelly, Trotter & Franzen, David P. Pruett; and Fred J.
Hiestand for the Association of Southern California Defense Counsel
and the Civil Justice Association of California as Amici Curiae on
behalf of Defendants and Appellants.
Lanzone Morgan, Ayman R. Mourad, Alexander S. Rynerson, Suzanne
M. Voas; BraunHagey & Borden, Matthew Borden and Kory J.
DeClark for Plaintiff and Respondent.
Stiller Law Firm and Ari J. Stiller for Consumer Attorneys of
California, Compassion & Choices, American Association for Justice
and Public Justice as Amici Curiae on behalf of Plaintiff and
Respondent.
William Alvarado Rivera; and Eric M. Carlson for AARP, AARP
Foundation, Justice in Aging, California Advocates for Nursing Home
Reform, California Long-Term Care Ombudsman Association and The
National Consumer Voice for Quality Long-Term Care as Amici Curiae
on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Harry W.R. Chamberlain II
Buchalter, A Professional Corporation
1000 Wilshire Boulevard, Suite 1500
Los Angeles, CA 90017
(213) 891-5115
Mark E. Reagan
Hooper, Lundy & Bookman, P.C.
44 Montgomery Street, Suite 3500
San Francisco, CA 94104
(415) 875-8501
Matthew Borden
BraunHagey & Borden LLP
351 California Street, 10th Floor
San Francisco, CA 94104
(415) 599-0210
Opinion Information
| Date: | Docket Number: |
| Thu, 03/28/2024 | S276545 |
