Hutcheson v. Eskaton Fountainwood Lodge

Filed 6/14/17
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----

ROBIN HUTCHESON et al., C074846

Plaintiffs and Respondents, (Super. Ct. No. 34-2012-
00135467-CU-PO-GDS)
v.

ESKATON FOUNTAINWOOD LODGE et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Sacramento County, David I.
Brown, Judge. Affirmed.

Beach Cowdrey Owen, Thomas E. Beach and Darryl C. Hottinger for Defendants
and Appellants.

Hanson Bridgett, James A. Napoli, Adam W. Hofmann, and Rachel P. Zuraw for
California Assisted Living Association as Amicus Curiae on behalf of Defendants and
Appellants.

Joanne Handy for LeadingAge California as Amicus Curiae on behalf of
Defendants and Appellants.

The Law Office and Edward P. Dudensing for Plaintiffs and Respondents.

1
 This case turns on whether an attorney-in-fact who admitted her principal to a
residential care facility for the elderly made a “health care” decision. If she did, as the
trial court found, she acted outside the scope of her authority under the power of attorney,
and the admission agreement she signed, and its arbitration clause this appeal seeks to
enforce, are void.
To answer this question, we must reconcile two statutes, the Power of Attorney
Law (Prob. Code, § 4000 et seq. (PAL)), and the Health Care Decisions Law (Prob.
Code, § 4600 et seq. (HCDL)), in light of the care rendered by a residential care facility
for the elderly (Health & Saf. Code, § 1569 et seq.), and parse the authority of two of the
principal’s relatives, one holding a power of attorney under the PAL and one holding a
power of attorney under the HCDL.
On these facts we conclude admission of decedent to the residential care center for
the elderly was a health care decision and the attorney-in-fact who admitted her, acting
under the PAL, was not authorized to make health care decisions on behalf of the
principal.
As a result of this conclusion, we affirm the trial court’s denial of a motion by the
residential care facility to compel arbitration. Because the attorney-in-fact acting under
the PAL did not have authority to admit the principal to the residential care facility for
the elderly, her execution of the admission agreement and its arbitration clause are void.
FACTS AND PROCEDURAL HISTORY
For ease of reference, we refer to a power of attorney for health care, as authorized
under the HCDL (Prob. Code, § 4671, subd. (a)), as a “health care POA,” rather than an
advance health care directive. (Prob. Code, § 4673.) For purposes of this decision only,
we refer to the statutory form power of attorney set forth in the PAL (Prob. Code, § 4401)
as a “personal care POA.”
Decedent Barbara Lovenstein executed a health care POA in 2006. She appointed
her niece, plaintiff Robin Hutcheson, as her attorney-in-fact to make health care decisions

2
for her. The authority to make health care decisions included the power to authorize
Lovenstein’s admission to “any hospital, hospice, nursing home, adult home, or other
medical care facility,” and the authority to consent to the provision, withholding, or
withdrawal of health care. The directive became effective immediately.
Four years later, in 2010, Lovenstein executed a personal care POA, using the
form set forth in the PAL. She designated her sister, plaintiff Jean Charles, and
Hutcheson as her attorneys-in-fact. Lovenstein granted them the authority to act for her
on a number of different subjects, including “[p]ersonal and family maintenance,” and
“[c]laims and litigation.” The form expressly precluded anyone from making “medical
and other health-care decisions” for her. Each attorney-in-fact had the authority to act
alone on all matters within their authority that are relevant here. The personal care POA
became effective immediately.
Prior to February 24, 2012, Lovenstein lived with Charles. At times, Charles
served as Lovenstein’s care provider; at other times, she oversaw care provided to
Lovenstein by in-home care providers, including their administration of medicine.
Charles declared she knew Lovenstein had assigned Hutcheson to make health care
decisions. It was Lovenstein’s desire throughout her lifetime that Hutcheson make health
care decisions for her.
On February 24, 2012, Charles voluntarily admitted Lovenstein to defendant
Eskaton FountainWood Lodge (FountainWood). FountainWood is a licensed “residential
care facility for the elderly” under the California Residential Care Facilities for the
Elderly Act (Health & Saf. Code, § 1569 et seq.). It is owned and operated by defendants
Eskaton Properties, Inc., and Eskaton. Charles signed the admission agreement on behalf
of Lovenstein.
The admission agreement contained an arbitration clause. The clause in general
required all claims arising from Lovenstein’s care at FountainWood to be submitted to
binding arbitration. The clause bound the parties’ heirs, representatives, and successors,

3
and it remained in effect after the admission agreement terminated for the resolution of
all claims.
A medical appraisal performed the day of her admission disclosed Lovenstein was
suffering from dementia and seizures. She was confused and disoriented. She engaged
in inappropriate, aggressive, and wandering behaviors. She was not able to follow
instructions consistently, and she was depressed. She required “complete” supervision.
When Lovenstein was admitted to FountainWood, she allegedly suffered from
epilepsy and had a prescription for Ativan. She was to take the medicine (one mg. dose)
only as needed for seizure-like activity. FountainWood staff allegedly began giving
Lovenstein more doses of Ativan than were prescribed to help alleviate her anxiety and
agitation. Concerned about the staff’s alleged increased administration of Ativan for
purposes other than seizures, Charles made an appointment for Lovenstein to see her
doctor. The doctor found Lovenstein was disoriented as to time, place, and person, which
was a “drastic change from earlier visits.” He concurred in Charles’s decision to move
Lovenstein back to Charles’s home.
On March 22, 2012, Charles went to FountainWood to pack Lovenstein’s
belongings and move Lovenstein into her home. However, Lovenstein choked on her
lunch at FountainWood that day and was transferred to a hospital. Doctors allegedly
diagnosed her with aspiration pneumonia and severe dysphagia (difficulty in
swallowing). She remained hospitalized until March 28, 2012, and died on April 11,
2012.
There is no evidence in the record that Hutcheson, Lovenstein’s attorney-in-fact
for health care under the health care POA, was involved in any of the decisions and
actions regarding Lovenstein’s admission to, stay at, or discharge from FountainWood.
Hutcheson, as successor in interest on behalf of Lovenstein, and Charles sued
defendants. In the first amended complaint, Hutcheson sought damages for elder abuse
and fraud, and Charles sought damages for negligent infliction of emotional distress.

4
 FountainWood petitioned the trial court to compel arbitration pursuant to the
mandatory arbitration clause contained in the admission agreement. The trial court
denied the petition, ruling the arbitration agreement was invalid. The court reasoned the
admission of Lovenstein to FountainWood and the agreement to arbitrate as part of that
admission were health care decisions, and Charles did not have the authority under her
personal care POA to make health care decisions for Lovenstein.
FountainWood appeals from the trial court’s order. It contends the arbitration
agreement is valid because Charles’s decision to admit Lovenstein to FountainWood was
not a health care decision, and Charles was authorized under the personal care POA to
sign the admission agreement and bind Lovenstein and her successors to binding
arbitration. FountainWood alternatively contends Lovenstein and Charles created an
ostensible agency by failing to inform it that Charles was not authorized to execute the
admissions agreement.1
DISCUSSION
I
Standard of Review
“ ‘Although “[t]he law favors contracts for arbitration of disputes between parties”
(Player v. Geo. M. Brewster & Son, Inc. [(1971)] 18 Cal.App.3d [526,] 534), “ ‘there is
no policy compelling persons to accept arbitration of controversies which they have not
agreed to arbitrate. . . .’ ” (Weeks v. Crow (1980) 113 Cal.App.3d 350, 353, quoting
Freeman v. State Farm Mut. Auto. Ins. Co. [(1975)] 14 Cal.3d [473,] 481 . . . .)’
(Victoria v. Superior Court (1985) 40 Cal.3d 734, 744.) ‘The party seeking to compel
arbitration bears the burden of proving the existence of a valid arbitration agreement.
(Garrison v. Superior Court (2005) 132 Cal.App.4th 253, 263 (Garrison); Engalla v.

1 The California Assisted Living Association and LeadingAge California filed
amicus curiae briefs in support of FountainWood.

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Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 [(Engalla)]; Pagarigan v.
Libby Care Center, Inc. (2002) 99 Cal.App.4th 298, 301 (Pagarigan).) Petitions to
compel arbitration are resolved by a summary procedure that allows the parties to submit
declarations and other documentary testimony and, at the trial court’s discretion, to
provide oral testimony. (Engalla, supra, 15 Cal.4th at p. 972; Code Civ. Proc., §§
1281.2, 1290.2.) If the facts are undisputed, on appeal we independently review the case
to determine whether a valid arbitration agreement exists. (Garrison, supra, 132
Cal.App.4th at p. 263; Buckner v. Tamarin (2002) 98 Cal.App.4th 140, 142.)’ (Flores v.
Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 586 (Flores).)
“As the Flores court explained, ‘Generally, a person who is not a party to an
arbitration agreement is not bound by it. (Buckner v. Tamarin, supra, 98 Cal.App.4th at
p. 142.) However, there are exceptions. For example, a patient who signs an arbitration
agreement at a health care facility can bind relatives who present claims arising from the
patient’s treatment. (Mormile v. Sinclair (1994) 21 Cal.App.4th 1508, 1511-1516;
Bolanos v. Khalatian (1991) 231 Cal.App.3d 1586, 1591.) Further, a person who is
authorized to act as the patient’s agent can bind the patient to an arbitration agreement.
(Garrison, supra, 132 Cal.App.4th at pp. 264-266; see Buckner, supra, 98 Cal.App.4th at
p. 142.)’ (Flores, supra, 148 Cal.App.4th at p. 587, fn. omitted.)” (Goldman v.
SunBridge Healthcare, LLC (2013) 220 Cal.App.4th 1160, 1169, original italics.)
II
Admission to FountainWood was a Health Care Decision
This case pivots on whether Charles’s admitting Lovenstein to FountainWood was
a “health care” decision for purposes of the two sets of power of attorney statutes at issue;

6
the PAL (Prob. Code, § 4000 et seq.) and the HCDL (Prob. Code, § 4600 et seq. The two
power of attorney schemes must be read together to resolve this appeal.2
Charles’s authority under Lovenstein’s personal care POA is set forth in the PAL.
Under that law, a personal care POA may authorize, as Lovenstein’s does here, the
attorney-in-fact to make decisions regarding the principal’s “personal care” and her
“claims and litigation,” and to enter into contracts to accomplish those purposes. (Prob.
Code, §§ 4123, subd. (a), 4450, subd. (b), 4459, subd. (d), 4460, subd. (a).) The authority
regarding Lovenstein’s claims and litigation includes the authority to submit claims to
arbitration. (Prob. Code, § 4450, subd. (d).)
However, the PAL does not apply to health care POA’s, and the personal care
POA does not authorize an attorney-in-fact to make decisions regarding the principal’s
“health care.” (Prob. Code, §§ 4050, subd. (a)(1), 4401.) In California, all health care
POA’s are governed by the HCDL. (Prob. Code, § 4665, subd. (a).)
The HCDL authorizes a competent adult to execute a power of attorney for “health
care.” (Prob. Code, § 4671, subd. (a).)3 The health care POA may authorize the
attorney-in-fact to make “health care decisions” for the principal. (Prob. Code, § 4671,
subd. (a).) A “ ‘[h]ealth care decision’ ” is a decision made by the principal or her
attorney-in-fact regarding the principal’s “health care,” including, as pertinent here, the
“[s]election and discharge of health care providers and institutions.” (Prob. Code,
§ 4617.)

2 The parties did not discuss the HCDL in their initial briefing. At our request, they
discussed it in supplemental briefing.
3 The HCDL uses the term “ ‘[a]gent’ ” to describe the principal’s attorney-in-fact
(Prob. Code, § 4607), while the PAL uses the term “ ‘[a]ttorney-in-fact.’ ” (Prob. Code,
§ 4014.) For the sake of consistency, we use the term “attorney-in-fact” to describe the
principal’s attorney-in-fact under both sets of statutes.

7
 Thus, we must define the boundary between the PAL and the HCDL, and
specifically, the distinction between “personal care” and “health care” and whether
FountainWood is a “health care institution” for purposes of the HCDL. If admitting
Lovenstein to FountainWood was a “health care decision” and FountainWood is a “health
care institution,” as defined by the HCDL, the admission agreement and its arbitration
clause are invalid, as Charles’s authority under her personal care POA by law did not
include the authority to make health care decisions on behalf of Lovenstein. If, however,
admitting Lovenstein to FountainWood was not a “health care decision” as defined by the
HCDL but was instead a “personal care” decision under the PAL, or if FountainWood is
not a “health care institution” under the HCDL, the admission agreement and its
arbitration clause may be valid.
We conclude under the facts of this case that admitting Lovenstein to
FountainWood was a health care decision under the HCDL and thus was not within
Charles’s scope of authority under her statutory form power of attorney.
Our analysis seeks primarily to understand the Legislature’s intent for adopting the
HCDL and its definitions. We employ familiar rules of statutory construction. “Our
fundamental task . . . is to determine the Legislature’s intent so as to effectuate the law’s
purpose. We first examine the statutory language, giving it a plain and commonsense
meaning. We do not examine that language in isolation, but in the context of the
statutory framework as a whole in order to determine its scope and purpose and to
harmonize the various parts of the enactment. If the language is clear, courts must
generally follow its plain meaning unless a literal interpretation would result in absurd
consequences the Legislature did not intend. If the statutory language permits more than
one reasonable interpretation, courts may consider other aids, such as the statute’s
purpose, legislative history, and public policy. [Citations.]” (Coalition of Concerned
Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737.)

8
 We turn to the HCDL. As mentioned above, a person may execute a power of
attorney for “health care” under the HCDL to authorize an attorney-in-fact to make
“health care decisions.” (Prob. Code, § 4671, subd. (a).) For purposes of the HCDL and,
by extension, the PAL and its statutory form personal care POA, the term “ ‘[h]ealth
care’ ” means “any care, treatment, service, or procedure to maintain, diagnose, or
otherwise affect a patient’s physical or mental condition.” (Prob. Code, § 4615.) A “
‘[h]ealth care decision’ ” is “a decision made by a patient or a patient’s agent . . .
regarding the patient’s health care, including . . . [s]election and discharge of health care
. . . institutions.” (Prob. Code, § 4617.) A “ ‘[h]ealth care institution’ ” is “an institution,
facility, or agency licensed, certified, or otherwise authorized or permitted by law to
provide health care in the ordinary course of business.” (Prob. Code, § 4619.)
These are very broad definitions, and at first glance they appear to define
Lovenstein’s admission to FountainWood. “Health care” is defined as “any” care or
service that maintains or affects a person’s physical or mental condition, and a “health
care institution” is a facility licensed to provide such “health care” as its business.
FountainWood contracted to provide Lovenstein care and services that would maintain
her physical or mental condition. Under the admission agreement, FountainWood agreed
to provide such services to Lovenstein. Those services included, among other things,
lodging, meals, laundry, assistance with bathing and hygiene, assistance with taking
medications, and continuous care and supervision. Most significantly here,
FountainWood also agreed to provide dementia care. This was a higher level of care
administered by staff who were trained on issues of “hydration, skin care,
communication, therapeutic activities, behavioral challenges, the environment, and
assisting with activities of daily living.” (22 Cal. Code Regs., § 87705, subd. (c)(3)(A).)
FountainWood eventually agreed to provide a standard of care it classified as
Level Three – Moderate Assistance. In addition to the care already provided, this level of
care included increased assistance in activities of daily living as well as constant

9
supervision and moderate assistance for dressing and bathing. It included medication
administration assistance and physical assistance in moving. It may have also included
regular assistance in bowel and bladder management. FountainWood was licensed to
render these services.
We recognize the term “health care” cannot be read in the HCDL as literally “any”
care that affects a person’s condition. To do so would include within its scope much of
what the Legislature has classified as “personal care” under the PAL. And the
Legislature has clearly stated that “personal care” is not “health care” for purposes of the
personal care POA.
The Legislature defined in the PAL the authority over “personal care” granted
Charles in the personal care POA. This authority empowered Charles to make decisions
relating to Lovenstein’s personal care and to maintain Lovenstein’s customary standard
of living, including providing living quarters by purchase, lease or other contract;
providing for normal domestic help; paying for Lovenstein’s shelter, clothing, food, and
other current living costs; providing transportation; handling mail; arranging recreation
and entertainment; and paying for Lovenstein’s necessary medical, dental, and surgical
care, hospitalization, and custodial care. (Prob. Code, §§ 4123, subd. (c), 4460, subd.
(a)(1), (2), (3).)
The HCDL similarly defines “personal care.” It allows, but does not require, a
power of attorney for health care to authorize the attorney-in-fact to make decisions
regarding the principal’s “personal care,” including, but not limited to, “determining
where the principal will live, providing meals, hiring household employees, providing
transportation, handling mail, and arranging recreation and entertainment.” (Prob. Code,
§ 4671, subd. (b).)
These statutes define personal care primarily as providing for the necessities of
living at a basic level. None of them mention making decisions about the principal’s
health care other than paying for it. But is a decision to place someone in a residential

10
care facility for the elderly, particularly to receive dementia care, more than providing for
the basic necessities of living? We conclude it is in this case. Here, FountainWood
provided a type of health care that went beyond mere personal care.
A residential care facility for the elderly is statutorily defined as “a housing
arrangement chosen by persons 60 years of age or over, or their authorized
representative, where varying levels and intensities of care and supervision, protective
supervision, personal care, or health-related services are provided, based upon their
varying needs . . . .” (Health & Saf. Code, § 1569.2, subd. (o).) The Legislature in 1985
stated it created the separate licensing category for residential care facilities for the
elderly because they provided multiple levels of care, including some forms of medical
care. The Legislature stated in pertinent part: “(c) The Community Care Facilities Act
was enacted in 1973 with the primary purpose of ensuring that residents of state hospitals
would have access to safe, alternative community-based housing.
“(d) Since that time, due to shortages in affordable housing and a greater demand
for residences for the elderly providing some care and supervision, a growing number of
elderly persons with health and social care needs now reside in community care facilities
that may or may not be designed to meet their needs.
“(e) Progress in the field of gerontology has provided new insights and
information as to the types of services required to allow older persons to remain as
independent as possible while residing in a residential care facility for the elderly.
“(f) The fluctuating health and social status of older persons demands a system of
residential care that can respond to these needs by making available multilevels of service
within the facility, thus reducing the need for residents with fluctuating conditions to
move between medical and nonmedical facilities.
“(g) Residential care facilities for the elderly which are not primarily medically
oriented represent a humane approach to meeting the housing, social and service needs of

11
older persons, and can provide a homelike environment for older persons with a variety
of care needs.” (Health & Saf. Code, § 1569.1, subds. (c)-(g), italics added.)
Residential care facilities are “not primarily medically oriented” (Health & Saf.
Code, § 1569.1, subd. (g)), but they may provide a level of care that goes beyond mere
personal care authorized under the statutory form power of attorney, including some
forms of medical care. By providing “care and supervision” (Health & Saf. Code, §
1569.2, subd. (o)(1)), the “facility assumes responsibility for, or provides or promises to
provide in the future, ongoing assistance with activities of daily living without which the
resident’s physical health, mental health, safety, or welfare would be endangered.
Assistance includes assistance with taking medications, money management, or personal
care.” (Health & Saf. Code, § 1569.2, subd. (c).) The facility may provide “protective
supervision” (Health & Saf. Code, § 1569.2, subd. (o)(1)), which includes “observing and
assisting confused residents, including persons with dementia, to safeguard them against
injury.” (Health & Saf. Code, § 1569.2, subd. (n).) And the facility may provide
“personal care” (Health & Saf. Code, § 1569.2, subd. (o)(1)), such as “assistance with
personal activities of daily living, to help provide for and maintain physical and
psychosocial comfort.” (Health & Saf. Code, § 1569.2, subd. (m).) “ ‘Personal activities
of daily living’ ” include “dressing, feeding, toileting, bathing, grooming, and mobility
and associated tasks.” (Health & Saf. Code, § 1569.2, subd. (l).)
Residential care facilities for the elderly are also authorized to provide “incidental
medical services” for patients who have what the regulations call “restricted health
conditions” or require any of the following services: administration of oxygen; catheter
care; colostomy/ileostomy care; contractures; diabetes; enemas, suppositories, and/or
fecal impaction removal; incontinences of bowel and/or bladder; injections; intermittent

12
positive pressure breathing machine use; certain pressure sores; and wound care. (Health
& Saf. Code, § 1569.725; 22 Cal. Code Regs. §§ 87609, subd. (a), 87612.)4
Since the parties completed initial briefing in this appeal, the Legislature has
clarified that residential care facilities for the elderly that accept patients with restricted
health conditions must ensure those residents “receive medical care as prescribed by the
resident’s physician . . . by appropriately skilled professionals acting within the scope of
their practice.” (Health & Saf. Code, § 1569.39, subd. (b), italics added.) Such skilled
professionals include “a registered nurse, a licensed vocational nurse, physical therapist,
occupational therapist, or respiratory therapist.” (Id., at subd. (c).) The residential care
facility for the elderly may employ these professionals. (Ibid.)
Many of these types of care and services go beyond mere personal care, and thus
qualify as a type of “health care” that can be authorized by an attorney-in-fact only under
a health care POA pursuant to the HCDL. It also follows that when residential care
facilities for the elderly provide these types of “health care,” they are “health care
institutions” for purposes of the HCDL, and admission to them under a power of attorney
is authorized only under a health care POA. That is the situation here.
Our conclusion is similar to that reached in Garrison v. Superior Court (2005) 132
Cal.App.4th 253 (Garrison), relied upon by the trial court. There, the Court of Appeal
for the Second Appellate District, Division Five, enforced an arbitration clause in a
residential care facility’s admission contract executed by the patient’s attorney-in-fact
under a power of attorney for health care.5 The appellate court wrote: “[The attorney-in-
fact] executed the arbitration agreements while making health care decisions on behalf of

4 It is not clear from the admissions agreement whether FountainWood agreed to
provide any incidental medical services to Lovenstein.
5 The Garrison opinion does not state whether the residential care facility was a
residential care facility for the elderly.

13
[decedent]. Whether to admit an aging parent to a particular care facility is a health care
decision. The revocable arbitration agreements were executed as part of the health care
decisionmaking process.” (Id. at p. 266; cf. Young v. Horizon West, Inc. (2013) 220
Cal.App.4th 1122, 1129 [disagreed with Garrison to the extent Garrison held the term
“health care decisions” encompassed the execution of arbitration agreements on behalf of
the principal as a matter of “general application”].)
FountainWood contends it is not a “health care institution” and Lovenstein’s
admission to FountainWood was not a health care decision primarily under two different
arguments. First, it argues it is not a “health care institution” because it is not treated as a
“health facility” under statutes other than the HCDL and the PAL, and, second, it is not a
“health care institution” under the terms of the HCDL itself. The first contention does
not change our conclusion, and we disagree with the second.
FountainWood asserts it should not be treated as a “health care institution” under
the HCDL because it is not licensed or treated as a health facility under other statutory
schemes. It correctly states it is not a licensed “health facility” for purposes of licensing
requirements imposed on medical care facilities. Health and Safety Code section 1250
lists health facilities that must be licensed by the Department of Public Health. (Health &
Saf. Code, § 1253.) Health and Safety Code section 1250 defines a “ ‘health facility’ ” as
“a facility, place, or building that is organized, maintained, and operated for the
diagnosis, care, prevention, and treatment of human illness, physical or mental, including
convalescence and rehabilitation . . . to which the persons are admitted for a 24-hour stay
or longer . . . .” A health facility for purposes of Health and Safety code section 1250
includes general acute care hospitals, acute psychiatric hospitals, skilled nursing
facilities, and intermediate care facilities. (Health & Saf. Code, § 1250.) A residential
care facility for the elderly is not a “health facility” under Health and Safety Code section
1250. (Health & Saf. Code, § 1569.145, subd. (a).)

14
 FountainWood also correctly states because it is not a health facility under Health
and Safety Code section 1250, it is not entitled to the liability protections provided to
health facilities under the Medical Injury Compensation Reform Act of 1975 (Civ. Code,
§ 3333.2, subd. (b) (MICRA)). MICRA caps noneconomic damages a plaintiff may
recover in a medical malpractice action against a “ ‘[h]ealth care provider.’ ” (Civ. Code,
§ 3333.2, subd. (b).) The statute defines a health care provider in part as “any clinic,
health dispensary, or health facility, licensed pursuant to Division 2 (commencing with
Section 1200) of the Health and Safety Code.” (Civ. Code, § 3333.2, subd. (c)(1).) As
mentioned previously, a residential care facility for the elderly is not a “health facility,”
nor is it a clinic or a health dispensary, under Health and Safety Code section 1250, and
thus it does not qualify as a “health care provider” for purposes of MICRA. (See Kotler
v. Alma Lodge (1998) 63 Cal.App.4th 1381, 1392-1394 (Kotler) [a residential care
facility, a type of community care facility, is not a “health facility” under Health and
Safety Code section 1250 and thus not protected by MICRA].)6
FountainWood also directs us to statutes that govern patient access to their health
care records. One of these statutes authorizes an adult patient of a “health care provider”

6 The California Community Care Facilities Act (Health & Saf. Code, § 1500 et
seq.) defines a community care facility as “any facility, place, or building that is
maintained and operated to provide nonmedical residential care, day treatment, adult day
care, or foster family agency services for. . . the physically handicapped, mentally
impaired, incompetent persons, and abused or neglected children . . . .” (Health & Saf.
Code, § 1502, subd. (a), italics added.) This definition includes a “ ‘[r]esidential
facility,’ ” which is defined as “any family home, group care facility, or similar facility
determined by the director [of the Department of Social Services], for 24-hour
nonmedical care of persons in need of personal services, supervision, or assistance
essential for sustaining the activities of daily living or for the protection of the
individual.” (Health & Saf. Code, § 1502, subd. (a)(1), italics added.) At two points in
its opening brief, FountainWood asserts it is such a residential care facility. The assertion
is incorrect. Residential care facilities for the elderly “shall not be considered community
care facilities and shall be subject only to the California Residential Care Facilities for the
Elderly Act . . . .” (Health & Saf. Code, § 1502.5.)

15
to gain access to his or her patient records. (Health & Saf. Code, § 123110, subd. (a).)
For purposes of this statute, a “health care provider” is a “health facility” as defined in
Health and Safety Code section 1250, as well as a number of specified health care
professionals, including physicians, surgeons, podiatrists, dentists, psychologists, and
various therapists. (Health & Saf. Code, § 123105, subd. (a).) A residential care facility
for the elderly is not a “health care provider” for purposes of the statute allowing patient
access to patient records.
None of these statutes, however, mandates how we interpret the HCDL and the
PAL and whether FountainWood is a “health care institution” that provides “health care”
under those laws. “ ‘[W]hen the Legislature uses materially different language in
statutory provisions addressing the same subject or related subjects, the normal inference
is that the legislature intended a difference in meaning. [Citation.]’ [Citation.]”
(Kleffman v. Vonage Holdings Corp. (2010) 49 Cal.4th 334, 342.) The Legislature
defined a “health care institution” in the HCDL more broadly than it defined a “health
facility” and a “health care provider” in other statutes, and it did so because it intended
the terms to have different meanings in their respective contexts.7
The Legislature adopted the HCDL not as a means of regulating the provision of
health care, but as a way to protect an adult’s “fundamental right to control the decisions
relating to his or her own health care” and to protect “individual autonomy.” (Prob.
Code, § 4650, subds. (a), (b).) To meet these purposes, the Legislature defined “health

7 Indeed, as other examples of similar terms having different meanings, the
Legislature defined a “health facility” to include community care facilities for purposes
of the California Health Facilities Financing Authority Act (Gov. Code, § 15430 et seq.).
(Gov. Code, § 15432, subd. (d)(13), (14).) Community care facilities are not “health
facilities” under Health and Safety Code section 1250 or MICRA. And, unlike in
MICRA where the Legislature defined a “health care provider” as including types of
facilities, in the HCDL the Legislature defined a “health care provider” as an “individual”
who is licensed to provide health care in the ordinary course of business. (Prob. Code, §
4621.)

16
care” and “health care institution” differently than it defined “health facility” and “health
care provider” in other regulatory statutes. Serving a different purpose, the other uses of
the terms “health facility” and “health care provider” have little relevance here. 8
FountainWood next raises a different line of attack. Instead of arguing over
whether the type of care it provides is “health care” under the HCDL, FountainWood
directs us to other provisions in the HCDL it claims show the Legislature did not intend
to classify residential care facilities for the elderly as “health care providers” or “health
care institutions” for purposes of the HCDL. These provisions expressly define and
apply to residential care facilities for the elderly in addition to health care providers and
institutions. FountainWood contends the Legislature would not have separately defined
residential care facilities for the elderly if those facilities were included in the definitions
of health care providers or institutions. It claims defining a residential care facility for
the elderly to be a “health care provider” or a “health care institution” under the HCDL
creates surplusage. Under the circumstances before us, we do not agree.

8 In its reply brief, FountainWood contends the reasoning in Kotler, supra, 63
Cal.App.4th 1381, should apply here. Kotler does not help FountainWood. The Kotler
court determined a residential care facility for the mentally ill, a type of community care
facility, was not a “health facility” under Health and Safety Code section 1250, and thus
not entitled to the protections of MICRA. The appellate court acknowledged the facility
provided “incidental medical services” and “health-related services” (Kotler, supra, 63
Cal.App.4th at pp. 1393-1394) similar to those provided by residential care facilities for
the elderly. However, the court held a “residential care facility which provides only
incidental medical services is not a health facility.” (Id. at p. 1394, italics omitted.) It
would be a health facility only if the medical services it provided constituted “a
substantial component of the total services provided.” (Id. at p. 1393.) Kotler did not
consider whether a residential care facility for the elderly was a “health care institution”
under the HCDL. Unlike Health and Safety Code section 1250, as interpreted by Kotler,
the HCDL does not define a “health care institution” as only those facilities whose
provision of medical care constitutes a substantial component of the total services
provided.

17
 The HCDL, in addition to defining a “health care provider” and a “health care
institution,” specifically defines a “residential care facility for the elderly” and gives that
term its statutory definition found in Health and Safety Code section 1569.2, quoted
above. (Prob. Code, § 4637.)9 The HCDL uses the phrase in two statutes designed to
prevent conflicts of interest. In neither case, however, does the phrase become
surplusage under our interpretation of the term “health care institution.”
In one such statute, Probate Code section 4674, the HCDL prohibits the following
persons, with exceptions not relevant here, from witnessing the execution of a power of
attorney for health care: “(1) The patient’s health care provider or an employee of the
patient’s health care provider. [¶] (2) The operator or an employee of a community care
facility. [¶] (3) The operator or an employee of a residential care facility for the elderly.
[¶] (4) The [attorney-in-fact].” (Prob. Code, § 4674, subd. (c); see Prob. Code, §§ 4680,
4673.) FountainWood argues the Legislature would not have separately prohibited
operators and employees of residential care facilities for the elderly from serving as
witnesses if such individuals were employees of a “health care provider” for purposes of
the HCDL.
With this argument, FountainWood fails to recognize the HCDL precludes a
residential care facility for the elderly from being defined as a “health care provider.”
The HCDL defines a “ ‘[h]ealth care provider’ ” as an individual. (Prob. Code, § 4621.)
A residential care facility for the elderly is not an individual. Thus, when Probate Code
section 4674 prohibits the “patient’s health care provider or an employee of the patient’s
health care provider” and the “operator or an employee of a residential care facility for
the elderly” from witnessing a power of attorney for health care, it is not necessarily

9 The HCDL also defines a “ ‘[c]ommunity care facility’ ” and gives that term its
statutory definition found in Health and Safety Code section 1502, subdivision (c).
(Prob. Code, § 4611.)

18
restricting the same people. For example, a licensed health care provider who is not the
patient’s provider but who is an employee of a residential care facility for the elderly may
not witness a power of attorney for health care. Interpreting a residential care facility to
be a health care institution under HCDL does not create surplusage in Probate Code
section 4674.
FountainWood directs us to a second statute in the HCDL, Probate Code section
4659, which includes the term “residential care facility for the elderly.” This statute
prohibits the following persons, with exceptions not relevant here, from serving as an
attorney-in-fact under a power of attorney for health care: “(1) The supervising health
care provider or an employee of the health care institution where the patient is receiving
care. [¶] (2) An operator or employee of a community care facility or residential care
facility where the patient is receiving care.” (Prob. Code, § 4659, subd. (a)(1), (2).)
FountainWood contends if the Legislature had intended residential care facilities for the
elderly to be considered as “health care institutions” for purposes of the HCDL, it would
not have separately prohibited operators and employees of residential care facilities from
serving as attorneys-in-fact. Such individuals would have been included in the reference
to employees of “health care institutions.”
Again, that is not necessarily so. An operator, as opposed to an employee, of a
health care institution, other than a residential care facility for the elderly, where the
principal is receiving care and who is not the patient’s supervising health care provider
may serve as an attorney-in-fact for health care.
If the mention of health care institution employees and employees of residential
care facilities for the elderly may seem redundant, we do not see the redundancy as
sufficient evidence to defeat the statutory scheme, already discussed, by which the
Legislature intended residential care facilities for the elderly to be considered as health
care institutions for purposes of the HCDL and the PAL. “Although a statute or
constitutional provision should be interpreted so as to eliminate surplusage, there is no

19
rule of construction requiring us to assume that the Legislature has used the most
economical means of expression in drafting a statute or constitutional amendment.”
(Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 772-
773.) “[T]he rule against interpretations that make some parts of a statute surplusage is
only a guide and will not be applied if it would defeat legislative intent or produce an
absurd result.” (In re J.W. (2002) 29 Cal.4th 200, 209.)
Here, FountainWood’s interpretation would defeat legislative intent. Not only
does the wording and structure of the HCDL demonstrate the Legislature intended
residential care facilities for the elderly could be health care institutions for purposes of
the HCDL, but so does the legislative history behind the HCDL’s definitions of “health
care” and “health care institution.” The HCDL’s definition of “health care” was derived
from and is virtually identical to its definition originally contained in the Uniform Law
Commissioners’ Model Health-Care Consent Act (the Uniform Consent Act), a model
health care representative law adopted by the National Conference of Commissioners on
Uniform State Laws in 1982. (Handbook of the Nat. Conf. of Comrs. on U. State Laws
& Proceedings 298 (1982).)10 The National Conference of Commissioners explained the
Uniform Consent Act’s definition of “health care” was “broader in scope than medical
care and includes care and treatment which is lawful to practice under state law, for
instance, nursing care.” (Id. at p. 301.)
In 1983, the California Law Revision Commission proposed statutes to authorize
the use of a health care POA. (17 Cal. Law Revision Com. Rep. (1984) p. 103.) The
Law Revision Commission proposed the term “ ‘[h]ealth care’ ” be defined identically to
its definition in the Uniform Consent Act, and expressly stated so. (Id. at pp. 117-118.)
It also proposed defining the term “ ‘[h]ealth care decision’ ” as “consent, refusal of

10 The Uniform Consent Act defined “ ‘[h]ealth care’ ” as “any care, treatment,
service, or procedure to maintain, diagnose, or treat an individual’s physical or mental
condition.” (Handbook, supra, at p. 300.)

20
consent, or withdrawal of consent to health care.” (Id. at p. 117.) The Legislature
included these definitions in the enacted law. (Stats. 1983, ch. 1204, § 10, p. 4615.)
In 1993, the National Conference of Commissioners adopted the Uniform Health-
Care Decisions Act. (9 West’s U. Laws Ann. (2005) U. Health-Care Decisions Act, p.
83.) The Uniform Health-Care Decisions Act superseded the Uniform Consent Act. (Id.
at p. 85.) However, it maintained the Uniform Consent Act’s definition of “health care.”
(Id. at p. 89.) For the first time, it defined a “ ‘[h]ealth-care institution’ ” as “an
institution, facility, or agency licensed, certified, or otherwise authorized or permitted by
law to provide health care in the ordinary course of business.” (Ibid.) It also enlarged
the definition of a “ ‘[h]ealth-care decision’ ” to a “decision made by an individual or the
individual’s agent . . . regarding . . . health care, including . . . the selection and discharge
of health-care providers and institutions.” (Ibid.)
In response to the Uniform Health-Care Decisions Act, the California Law
Revision Commission proposed a new statutory scheme to govern health care POA’s.
(29 Cal. Law Revision Com. Rep. (1999) p. 1.) The proposed statutes drew “heavily”
from the Uniform Health-Care Decisions Act. (Id. at p. 5.) This effort resulted in the
Legislature’s adoption of the HCDL. (Stats. 1999, ch. 658, § 39, p. 4860.) The HCDL
reenacted the definition of “ ‘[h]ealth care,’ ” and it enacted for the first time the
definitions of “ ‘[h]ealth care decision’ ” and “ ‘[h]ealth-care institution’ ” virtually
identical to the definitions in the Uniform Health-Care Decisions Act. (Prob. Code, §§
4615, 4617, 4619, 4621.)
The Law Revision Commission’s comments on the terms “ ‘[h]ealth care’ ” and
“ ‘[h]ealth care institution’ ” included as background the comments made by the National
Conference of Commissioners about those terms in the Uniform Health-Care Decisions
Act. (Prob. Code, §§ 4615, 4619.) According to the National Conference of
Commissioners, and the Law Revision Commission by adoption, the “definition of
‘health care’ . . . is to be given the broadest possible construction. It includes the types of

21
care referred to in the definition of ‘health-care decision’ . . . and to care, including
custodial care, provided at a ‘health-care institution’ . . . .” (9 West’s U. Laws Ann.,
supra, U. Health-Care Decisions Act, p. 90, com., italics added.) “The term ‘health-care
institution’ . . . includes a hospital, nursing home, residential-care facility, home health
agency or hospice.” (Ibid., italics added.)
“ ‘[T]he official comments of the California Law Revision Commission “are
declarative of the intent not only of the draftsman of the code but also of the legislators
who subsequently enacted it” [citation], [and thus] the comments are persuasive, albeit
not conclusive, evidence of that intent [citation].’ ” (Metcalf v. County of San Joaquin
(2008) 42 Cal.4th 1121, 1132.) Here, the history and comments, in light of the statute’s
language, demonstrate the Legislature, by incorporating the Uniform Health-Care
Decisions Act’s definitions of “health care” and “health care institution” into the HCDL,
intended the HCDL could apply to decisions concerning custodial care rendered by a
residential care facility for the elderly such as FountainWood.
FountainWood contends the comments to the Uniform Health-Care Decisions
Act’s definitions of “health care” and “health care institution” are not relevant because
the Legislature, when it enacted the HCDL, did not adopt the Uniform Health-Care
Decisions Act in its entirety. It added other provisions; in particular, it added the
definition of a residential care facility for the elderly. But the Legislature adopted the
virtually identical definitions of “health care” and “health care institution,” indicating it
adopted the Uniform Health-Care Decisions Act’s use and definition of these terms. As
shown above, it used the term “residential care facility for the elderly” only in narrow
circumstances when it needed to distinguish those facilities and their operators from other
health care institutions for purposes of preventing conflicts of interest. That use did not
defeat the Legislature’s intent to include residential care facilities for the elderly within
the definitions of HCDL’s definitions of “health care” and “health care institution.”

22
 In its reply brief, FountainWood for the first time contends Department of Social
Services regulations authorized Charles to admit Lovenstein to the care facility regardless
of whether she had express written authority to do so. Because FountainWood did not
raise this argument in its opening brief, the argument is forfeited. (Julian v Hartford
Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4.)
FountainWood complains that being subject to the HCDL is unfair. It contends it
is unfair for plaintiffs to claim FountainWood is a “health care institution” under the
HCDL in order to void the arbitration agreement, and then later claim FountainWood is
not a “health facility” or a “health care provider” under MICRA and thus not protected by
MICRA’s cap on noneconomic damages. While we understand FountainWood’s
concern, we must leave it to the Legislature to address that issue. In the meantime,
residential care facilities for the elderly can protect themselves against unlimited liability
by ensuring its admission contracts and arbitration clauses are executed by persons
having legal authority to do so. Charles was not such a person in this case.11
Ultimately, “a court must adopt the construction most consistent with the apparent
legislative intent and most likely to promote rather than defeat the legislative purpose and
to avoid absurd consequences.” (In re J.W., supra, 29 Cal.4th at p. 213.) Our
interpretation meets that standard. The Legislature intended that the decision to admit
someone to a residential care facility for the elderly could be a health care decision under
the HCDL, and it required that such a health care decision, if made pursuant to a power
of attorney, be made pursuant to a health care POA. A personal care POA under the PAL
does not authorize the attorney-in-fact to make a health care decision. As a result,

11 Persons considering executing a power of attorney, and attorneys who advise
them, must think carefully about designating different persons as their attorneys-in-fact
under a health care POA and a personal care POA. An attorney-in-fact under a personal
care POA cannot arrange for the health care the principal may need.

23
Charles’s decision to admit Lovenstein is void as she had no authority to enter into the
agreement.
III
Ostensible Agency
To the extent we hold the personal care POA did not authorize Charles to execute
the admission agreement, FountainWood contends Charles’s and Lovenstein’s behavior
led FountainWood to believe Charles had the authority to execute the agreement and thus
created an ostensible agency we should enforce. We disagree.
“An agency is ostensible when the principal intentionally, or by want of ordinary
care, causes a third person to believe another to be his agent who is not really employed
by him.” (Civ. Code, § 2300.) “Even when there is no written agency authorization, an
agency relationship may arise by oral consent or by implication from the conduct of the
parties. (van’t Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 571.)
However, an agency cannot be created by the conduct of the agent alone; rather, conduct
by the principal is essential to create the agency. Agency ‘can be established either by
agreement between the agent and the principal, that is, a true agency [citation], or it can
be founded on ostensible authority, that is, some intentional conduct or neglect on the
part of the alleged principal creating a belief in the minds of third persons that an agency
exists, and a reasonable reliance thereon by such third persons.’ (Lovetro v. Steers (1965)
234 Cal.App.2d 461, 474-475; see Civ. Code, §§ 2298, 2300.) ‘ “ ‘The principal must in
some manner indicate that the agent is to act for him, and the agent must act or agree to
act on his behalf and subject to his control.’ . . . ” [Citations.] Thus, the “formation of an
agency relationship is a bilateral matter. Words or conduct by both principal and agent
are necessary to create the relationship . . . .” ’ (van’t Rood, supra, 113 Cal.App.4th at p.
571, italics added.)” (Flores, supra, 148 Cal.App.4th at pp. 587-588.)
FountainWood introduced no facts showing Lovenstein intentionally or
negligently caused it to believe Charles was her agent for purposes of executing the

24
admission agreement. FountainWood argues there is no evidence Lovenstein or Charles
affirmatively informed it that Charles was not authorized to execute the admission
agreement. FountainWood, however, came into possession of Lovenstein’s health care
POA that named Hutcheson as Lovenstein’s health care agent, yet it did not raise the
discrepancy with Charles or Hutcheson or seek Hutcheson’s authorization to admit
Lovenstein. Lovenstein’s silence and possible lack of capacity do not constitute
negligence in this instance. No ostensible agency was created.
DISPOSITION
The order of the trial court denying FountainWood’s motion to compel arbitration
is affirmed. Costs on appeal are awarded to plaintiffs. (Cal. Rules of Court, rule
8.278(a).)

NICHOLSON , Acting P. J.

We concur:

MAURO , J.

DUARTE , J.

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