Keep In Mind That Authority Must Be Created By The Principal, Not The Agent.
Kinder v. Capistrano Beach Care Center, LLC, B316937 (2/7 5/18/13) (Escalante, Perluss, Feuer) is a lawsuit brought by a resident of a residential skilled nursing facility who broke her hip in a fall and sued. The nursing facility tried, unsuccessfully, to enforce an arbitration agreement, and was no more successful in the Court of Appeal.
The problem is that Nancy Kinder, who broke her hip, did not sign the arbitration agreement. Her children did, but there was a lack of proof that they had actual or ostensible authority to sign.
COMMENT: There are many lawsuits brought by aged residents of nursing homes in which the defendant seeks to enforce the arbitration agreement. Sometimes, as here, the injured person is a nonsignatory to the agreement. When that is the case, it may not be possible to enforce the agreement. The arbitration agreement might have been enforceable if the resident had signed and had capacity, if there had been an effective power of attorney, or if the signatory had acted under a conservatorship. Perhaps the difficulty of obtaining a power of attorney or a conservatorship is the simple explanation for why this is not done. And if the resident lacks capacity at the time the power of attorney is entered into, that's yet another problem.
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