The Supreme Court of Appeals of West Virginia (“West Virginia Supreme Court”) held in its opinion filed on May 30, 2018 that a successor attoney-in-fact appointed in a durable power of attorney (“DPOA”) executed by a nursing home resident may bind the resident to an arbitration agreement signed by the successor attorney-in-fact (the resident’s daughter) at the time of the resident’s admission to the nursing home, because the named attorney-in-fact in the DPOA (the resident’s son) “declined to serve, and because [the daughter] acted as her mother’s DPOA from 2011 through 2016,” and therefore “[the daughter] had the authority to enter into the arbitration agreement with the nursing home.”
The West Virginia Supreme Court held that because “there is no evidence that [the resident’s son] exercised any rights and duties granted to him under the DPOA—his inaction demonstrates that he declined to serve as [his mother’s] DPOA.”
The DPOA stated, in part, that the mother “made, constituted, and appointed” her son as her “true and lawful attorney,” and further provided, in part, “If, for any reason, [my son] cannot or will not serve as such, then I do hereby make, constitute, and appoint my daughter … my true and lawful attorney, for me and in my name, place and stead with all of the aforesaid powers.”
The nursing home arbitration agreement signed by the daughter stated, in part: “The parties have reviewed the Arbitration Agreement, and have had an opportunity to ask questions of the Facility about this Agreement. The Resident further acknowledges that he/she fully understands the content of this Agreement and the limitations on the right to seek the resolution of any dispute in court. The Resident affirmatively states that he/she is the Resident or a person legally authorized by law or by the Resident to execute this Agreement and accept its terms.” The son did not sign the arbitration agreement.
The West Virginia Supreme Court noted that the daughter continued to exercise the rights granted to her under the DPOA, including making medical decisions on her mother’s behalf, throughout her mother’s stay at the nursing home. The daughter was listed on various medical records from the nursing home as the “responsible party.”
The son provided an affidavit in which he stated that he was never contacted by the nursing home about his mother’s admission or about the arbitration agreement and further attested: “I was at all times material hereto willing and able to perform my duties as Durable Power of Attorney for my mother.”
The daughter argued that the arbitration agreement was not enforceable because she did not have the actual authority to enter into an arbitration agreement on her mother’s behalf.
In deciding the issue, the West Virginia Supreme Court looked to the West Virginia Uniform Power of Attorney Act (“UPAA”), W.Va. Code §§ 39B-1-101 et seq. , which addresses when a person may accept and rely upon an acknowledged DPOA: “A person who in good faith accepts an acknowledged power of attorney without actual knowledge that the power of attorney is void, invalid or terminated, that the purported agent’s authority is void, invalid or terminated, or that the agent is exceeding or improperly exercising the agent’s authority may rely upon the power of attorney as if the power of attorney were genuine, valid and still in effect, the agent’s authority were genuine, valid and still in effect, and the agent had not exceeded and had properly exercised the authority except as to a conveyance of interests in real property where the principal has previously filed a notice of termination of the power of attorney in the office of the clerk of the county commission in the county in which the property is located.”
The UPAA defines the term “agent” in W.Va. Code § 39B-1-102(1)  as follows: “(1) “Agent” means a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney-in-fact or otherwise. The term includes an original agent, coagent, successor agent and a person to which an agent’s authority is delegated.”
The West Virgina Supreme Court held that “[b]ecause this definition expressly includes a “successor agent,” we find that the term “agent” in W.Va. Code § 39B-1-119(c) includes a successor agent.” “[B]ased on the clear, unambiguous definition of agent set forth in W.Va. Code § 39B-1-102(1), we find that W.Va. Code § 39B-1-119(c) applies to the instant case.” “Pursuant to W.Va. Code § 39B1-119(c), the nursing home could rely on the DPOA as long as it was without actual knowledge (1) that the DPOA was void, invalid or terminated, (2) that [the daughter’s] authority was void, invalid or terminated, or (3) that [the daughter] was exceeding or improperly exercising her authority. Upon review, we find that the nursing home could rely on [the daughter’s] authority to serve as her mother’s DPOA.”
The West Virginia Supreme Court stated that it was undisputed that the POA was not void, invalid or terminated at the time of the mother’s admission to the nursing home. The West Virginia Supreme Court further stated that the record demonstrates that the daughter consistently exercised the rights and duties granted to her under the DPOA on her mother’s behalf before, during, and after the nursing home admission process, and, conversely, the record is devoid of any instance of the son exercising any rights or duties granted to him under his mother’s DPOA.
The West Virginia Supreme Court further noted that the nursing home had the “Pre-Admission Screening” form required by the DHHR prior to placing a person in a skilled nursing facility, which was signed by the daughter and identified the daughter, rather than the son, as the mother’s DPOA. The West Virginia Supreme Court stated that the nursing home had the DPOA itself that provided in clear, unambiguous language that the daughter was permitted to act on her mother’s behalf “[i]f, for any reason, [the son] cannot or will not serve[.]”
The West Virginia Supreme Court concluded: “the record clearly establishes that [the daughter] properly exercised her rights and duties under the DPOA 1) for two years prior to the nursing home admission, 2) during the nursing home admission process, 3) throughout [her mother’s] residency at the nursing home, and 4) after [her mother] left [the nursing home] and moved into [another nursing home]. Conversely, there is no evidence that [the son] exercised any rights and duties granted to him under the DPOA—his inaction demonstrates that he declined to serve as [his mother’s] DPOA. Because [the son] declined to serve, and because [the daughter] acted as her mother’s DPOA from 2011 through 2016, we conclude that [the daughter] had the authority to enter into the arbitration agreement with the nursing home. Based on this conclusion, we find that when [the daughter] signed the arbitration agreement, her authority was not “void, invalid or terminated,” nor was she “exceeding or improperly exercising her authority.” Therefore, under the plain language of W.Va. Code § 39B-1-119(c), the nursing home was permitted to rely on [the daughter’s] authority as [her mother’s] DPOA when [the daughter] signed the arbitration agreement on her mother’s behalf.”
Source AMFM, LLC, et al. v. Kimberly Shanklin, No. 17-0096.
If you or a loved one suffered injuries (or worse) while a resident of a nursing home in West Virginia or in another U.S. state due to nursing home neglect, nursing home negligence, nursing home abuse, nursing home under-staffing, or the nursing home failing to properly care for a vulnerable adult, you should promptly find a nursing home claim lawyer in West Virginia or in your state who may investigate your nursing home claim for you and file a nursing home claim on your behalf or behalf of your loved one, if appropriate.
Click here to visit our website to be connected with medical malpractice attorneys (nursing home claim attorneys) in your U.S. state who may assist you with your nursing home claim, or call us toll-free in the United States at 800-295-3959.
Turn to us when you don’t know where to turn.