Morrison Law Journal
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The Morrison Law Journal
June 2017
Volume XII, Edition 6

When It Is A Health Care Decision: Court Of Appeal Rules That Personal Care Power Of
Attorney Does Not Apply To "Health Care" Decisions And, Therefore, Arbitration
Agreement Included In Elder Care Facility Admission Contract - Signed By Attorney-In-
Fact Under Personal Care Power Of Attorney - Is Not Enforceable

By: Edward F. Morrison, Jr., Esq.
Larry A. Schwartz, Esq.

California has enacted competing statutes involving Powers of Attorney, including the Power of Attorney Law ("PAL") found in Probate Code §4000, et seq. and the Health Care Decisions Law ("HCDL") found in Probate Code §4600, et seq. A question which has arisen is whether a Power of Attorney for personal care under the PAL will apply to contracts involving "health care decisions" (and particularly contracts that include arbitration agreements).

This question has been largely answered in Hutcheson v. Eskaton Fountainwood Lodge (2017) Westlaw 2570672 ("Hutcheson case"). In the Hutcheson case, Barbara Lovenstein executed a health care Power of Attorney under the HCDL in 2006 designating her niece, Robin Hutcheson, as her attorney-in-fact. In 2010, Lovenstein executed a personal care Power of Attorney under the PAL designating her sister, Jean Charles, as her attorney-in-fact. In 2012, Ms. Charles voluntarily admitted Ms. Lovenstein to Eskaton Fountainwood Lodge, a licensed “residential care facility for the elderly” under the California Residential Care Facilities for the Elderly Act. Ms. Lovenstein died shortly thereafter. Suit was then filed by a number of representatives of Ms. Lovenstein against the Eskaton Fountainwood Lodge.

The Eskaton Fountainwood Lodge petitioned to compel arbitration on the basis that Ms. Charles, as attorney-in-fact per her Power of Attorney under the PAL, executed an admission agreement which included an arbitration clause. Eskaton Fountainwood Lodge pointed out that the personal care Power of Attorney under the PAL included "claims and litigation." In opposition to the petition, Lovenstein's representatives argued that Charles did not have a health care Power of Attorney under the HCDL as it had been issued to Ms. Hutcheson and Hutcheson had not been involved with and did not sign the admission agreement with the facility. At the trial court level, the court denied the petition to compel. On appeal, the Court of Appeal affirmed the ruling of the trial court concluding that the admission of Ms. Lovenstein to the residential care center for the elderly was a health care decision and the attorney-in-fact who admitted her, Ms. Charles, who was acting under the PAL, was not authorized to make health care decisions on behalf of the principal (Ms. Lovenstein).


With an aging population, contracts involving powers of attorney will continue to remain very important. Under the Hutcheson case, should an elder care facility or another care provider wish to impose an arbitration clause, a personal care Power of Attorney under the Power of Attorney Law by itself may not be sufficient and a separate Power of Attorney under the Health Care Decisions Law (i.e. health care Power of Attorney) may be required.

About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at

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