In a recent case brought up to the 4th District Court of Appeals the issue of whether a Health Car Surrogate can enter into an arbitration agreement for a nursing home resident. See Jenner v. Manor Pines Convalescent Center, LLC So.3d 38 FLW D895 (Fla. 4th DCA 4-24-2013).
In the Jenner case, the nursing home resident’s husband was the health care surrogate. As the health care surrogate he executed an “Agreement for Care” on behalf of his wife which included an arbitration provision forcing the wife to address all personal injury claims in arbitration. Ultimately, the resident wife did suffer injuries. and as a result the estate sued the nursing home. In response, the nursing home moved to compel arbitration.
The nursing home relied on the argument that because the health care surrogate designation authorized the husband to make health care decisions for his wife, that such decisions included admitting the wife to the nursing home and entering into the Agreement for Care which included the arbitration terms. The trial court agreed with the defense argument and the plaintiff appealed.
The Fourth District Court reversed but avoided actually making a decision. Rather, the Fourth District Court held that there was no evidence in the record that the Designation of Health Car Surrogate had been executed in the statutorily required presence of two witnesses and, furthermore, there was unrebutted evidence in the record contradicting the wife’s competence to execute the designation. As part of its ruling, the 4th DCA remanded the case for an evidentiary hearing regarding the validity of the designation.
One can expect that both parties will acknowledge that the 4th DCA has shown a road map on what they believe is necessary to prevail, specifically the challenges to the validity of the Designation of Health Care Surrogate. However, because the 4th DCA never reached a decision the question of whether a Health Car Surrogate can enter into an arbitration agreement on behalf of a nursing home resident is unknown.