Can a State Hold that Powers of Attorney Will Only Bind Principals to Arbitration if Binding to Arbitration Is Expressly Mentioned in the POA?

Originally published by Bob Mabry.

A wife has a general power of attorney to act on behalf of her husband. A daughter has a general power of attorney to act on behalf of her mother. Using the powers of attorney they sign their loved ones into a nursing home. The paperwork includes a binding arbitration clause. When the husband and mother die, the wife and daughter blame the deaths on the nursing home and sue it. The nursing home moves to dismiss the suits to stick the plaintiffs with binding arbitration.

The trial court rules in favor of the plaintiffs, as does the court of appeals, as does the Kentucky Supreme Court. They hold that under Kentucky law a power of attorney can only bind a principal to arbitration only if the right to bind the principal to arbitration is expressly provided in the power of attorney.

The Supreme Court of the United States ruled in favor of the nursing home. They held that the Federal Arbitration Act superseded any state rule disfavoring arbitration, and, that, therefore, Kentucky’s rule was contrary to that act.

Justice Kagan wrote for seven members of the court. New Justice Gorsuch recused himself, and Justice Thomas dissented consistently with earlier opinions of his that the Federal Arbitration Act doesn’t apply to state court proceedings.

Kindred Nursing Centers, v. Clark, No. 16-32, 581 U.S. _____, (May 15, 2017.)

Some disputes are better suited to arbitration than to trial.  Arbitration with choice of law is good for international trade disputes, especially where the contracting parties can each pay the costs of hiring the arbitrators, etc.  Otherwise, an unscrupulous party could grow a million flowers of delay that could drag on for years. Arbitration has worked pretty well between stockbrokers and their customers. They make sense where our brains are miswired to make a disinterested decision (For more on this read Predictably Irrational by Dan Ariely. I could even see that nursing home wrongful death cases might qualify.

Arbitration makes me uncomfortable in arm’s length consumer transactions, especially when the consumer is expected to pay in the low four figures or above in advance for the arbitrators and must \ additionally a lawyer who knows about arbitration and the subject matter of the dispute. Often the location is very convenient for the business (in a town where one of their main offices are) and very inconvenient for the claimant who, along with counsel,  might have to make multiple cross-country trips.

Arbitration can burden a claimant with high costs and strip a claimant of many of the protections of the constitutions (federal and state), statutes (federal and state), and procedures of courts- arbitration of manufactured housing disputes, workplace discrimination, software license agreements, etc. Furthermore, these contracts are often contracts of adhesion.  Don’t agree to arbitration? Well, then no mobile home for you, or job, or use of vital software.

Notwithstanding all that, if arbitration is sometimes advisable, I am sympathetic with courts. like the one here in Clark, making it very difficult to weasel out of arbitration agreements, It would not take  very many exceptions to make the FAA a dead letter.

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