What wording is needed in a durable power of attorney (DPOA) document to authorize a POA to sign an arbitration clause?

This has become a key question in the nursing home and ALF admission agreement cases -- indeed, nursing home lawyers are making more law on this issue than their less rabid probate and trust and estates brethren.

Florida courts have rebounded from the less-than-helpful opinion in Estate of McKibbin v. Alterra Health Care Corp d/b/a Clare Bridge Cottage of Winter Haven. In that case, the trial court held that the POA did not have authority within the DPOA document to sign an arbitration agreement -- but then left us without any analysis. The Second District then tucked in behind the trial court with the same holding -- also without analysis.

Since that time, the Second DCA acknowledged its own opinion-writing shortcoming with a more detailed opinion in Jaylene, Inc. and Carrington Place v. Moots as Personal Representative of the Estate of Crisson.

Enter the First District, with a New Year's Eve opinion in Five Points Health Care, Ltd. d/b/a Lakeside Nursing and Rehabilitation Center v. Carlene Mallory as next friend of Alfreda Mallory.

In Mallory, the First DCA reversed a trial court and held that a DPOA document provided sufficient wording to empower the POA to sign an arbitration agreement on behalf of her "next friend." The Panel (Barfield, Davis and Hawkes) even provided the approved-language for lawyers and other litigants to consider.

The POA could sign an arbitration clause based upon this DPOA language:

"All acts done by my attorney-in-fact pursuant to this power shall bind me, my heirs, devisees and personal representatives; provided, however, that all such acts performed hereunder shall be for my benefit only and not for the benefit of my attorney-in-fact."

"... prosecute, defend and settle all actions or other legal proceeding touching my estate or any part of it or touching any matter in which I may be concerned in any way."

"Do anything regarding my estate, property and affiars that I could do for myself."

The 1st DCA agreed with the Jaylene Panel that the Second DCA had not provided any meaningful guidance in McKibbin and, instead, followed the Jaylene ruling (which the trial court had not seen).

The court echoed that "where the POA unambiguously makes a broad, general grant of authority to the attorney-in-fact," a signature on an arbitration agreement will be upheld.

In our prior post, we mentioned what appears to be an emerging test. This First DCA opinion fits in nicely. We wrote:

Thus, assuming the trifecta of Bryant, Crisson, and McKibbin are to be read together, it appears that durable powers of attorney which (1) explicitly confer the ability to waive trial/agree to arbitrate or (2) make “a broad, general grant of authority to the attorney in fact” result in the POA being authorized to arbitrate. Those POAs with (undefined) “limitations” may not. Given that most durable powers of attorney are explicit or broad, this decision fills the gap between Bryant and McKibbin with precedent favoring enforcement of arbitration.