Hutcheson v. Eskaton Fountainwood Lodge

Filed 11/28/17 On rehearing
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 Appellants.

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.

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 This case turns on whether an attorney-in-fact made a “health care decision” by
admitting her principal to a residential care facility for the elderly and, in the process,
agreeing to an arbitration clause. If she did, as the trial court found, she acted outside the
scope of her authority under the power of attorney, and the arbitration clause this appeal
seeks to enforce is void.
To answer this question, we must define the scope of 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 a residential care facility for the
elderly agreed to provide, and actually provided, in this instance (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.
We conclude admission of decedent to the residential care facility for the elderly
in this instance 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 make health care decisions for her principal, 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 health care POA 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 did not authorize anyone to make “medical
and other health-care decisions” for her. Each attorney-in-fact had the authority to act
alone on all matters within their authority under the personal care POA 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,

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and it remained in effect after the admission agreement terminated for the resolution of
all claims.
At some point, FountainWood requested to know who Lovenstein had assigned to
make health care decisions for her. Hutcheson and Charles provided FountainWood with
Lovenstein’s health care POA that named Hutcheson as the attorney-in-fact over
Lovenstein’s health care.
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 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 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.” The Ativan was prescribed for seizures only, not for anxiety.
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 diagnosed her
with aspiration pneumonia and severe dysphagia (difficulty in swallowing). She
remained hospitalized until March 28, 2012, and died on April 11, 2012.
At Charles’s request, FountainWood provided the records it kept on Lovenstein.
Lovenstein’s health care POA was included in the documents FountainWood gave to
Charles.

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 There is no evidence in the record that Hutcheson, Lovenstein’s attorney-in-fact
for health care under the health care POA, was contacted by FountainWood or 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 their first amended complaint, Hutcheson sought damages for elder abuse
and fraud, and Charles sought damages for negligent infliction of emotional distress.
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

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

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 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.
Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972; Pagarigan v. Libby Care
Center, Inc. (2002) 99 Cal.App.4th 298, 301 [].) 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.

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(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 and
executing the arbitration clause was a “health care” decision. Lovenstein’s personal care
POA did not authorize Charles to make health care decisions for Lovenstein. Neither the
personal care POA nor the PAL define a health care decision. However, the HCDL does
define a health care decision, and it applies to all health care POA’s. (Prob. Code,
§ 4665, subd. (a).) Because the HCDL defines the services a personal care POA cannot
authorize, we rely on that law to help us determine the scope of Charles’s authority under
the personal care POA and whether executing the admission agreement with its
arbitration clause was a health care decision.2 We conclude it was a health care decision
beyond Charles’s authority to make under the personal care POA.
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

2 The parties did not discuss the HCDL in their initial briefing. At our request, they
discussed it in supplemental briefing.

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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.)
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).) 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 authority regarding Lovenstein’s claims and litigation includes the authority
to submit claims to arbitration. (Prob. Code, § 4450, subd. (d).) It also includes the
authority to “[c]ontract in any manner with any person, on terms agreeable to the
[attorney-in-fact], to accomplish a purpose of a transaction . . . .” (Prob. Code, § 4450,
subd. (b).)
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.)

8
 By contrast, 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).) 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, conservator, or surrogate, regarding the
patient’s health care, including . . . [s]election and discharge of health care providers and
institutions.” (Prob. Code, § 4617.) A “ ‘[h]ealth care provider’ ” is “an individual
licensed, certified, or otherwise authorized or permitted by the law of this state to provide
health care in the ordinary course of business or practice of a profession.” (Prob. Code, §
4621.) 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 the care
FountainWood agreed to provide Lovenstein. “Health care” is defined as “any” care or
service that maintains or affects a person’s physical or mental condition, a “health care
provider” is an individual authorized or permitted to provide “health care” in the ordinary
course of business, and a “health care institution” is a facility licensed to provide such
“health care” as its business

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’ ” regardless of
whether the person is known as an attorney-in-fact or agent. (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.

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 We recognize the term “health care” cannot be read for purposes of the PAL and
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.4
The PAL and the HCDL define personal care primarily as providing for the
necessities of living at a basic level. Neither law mentions making decisions about the
principal’s health care other than paying for it. But is a decision to place someone in a
residential 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. Charles
contracted with FountainWood to provide Lovenstein with health care as well as 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

4 A health care POA may also authorize the attorney-in-fact to make decisions
regarding the principal’s personal care. The HCDL defines “personal care” similarly to
the PAL. 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).)

10
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
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)), and much of what they provide is personal 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 “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,

11
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).)
However, residential care facilities for the elderly may also provide types of care
that go beyond personal care and include health care. For example, a residential care
facility for the elderly may provide dementia care. This is a higher level of care
administered by staff members specifically 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).)
In addition, residential care facilities for the elderly are 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
positive pressure breathing machine use; certain pressure sores; and wound care. (Health
& Saf. Code, § 1569.725; 22 Cal. Code Regs. §§ 87609, subd. (a), 87612.)5
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.)

5 It is not clear from the admissions agreement whether FountainWood agreed to
provide any incidental medical services to Lovenstein.

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 We also infer from the PAL’s definition of personal care that some forms of
custodial care may qualify as health care. The PAL defines personal care in part as
paying for “necessary medical, dental, and surgical care, hospitalization, and custodial
care.” (Prob. Code, § 4460, subd. (a)(3).) By including custodial care in a list of obvious
types of health care and authorizing the attorney-in-fact only to pay for that care, the
Legislature recognized some forms of custodial care are health care for purposes of
power of attorney laws.
Care and services involving health care cannot be authorized by an attorney-in-
fact acting only under a personal care POA. When residential care facilities for the
elderly provide health care, they and their employees who provide such care are,
respectively, “health care institutions” and “health care providers” for purposes of the
HCDL, and a third-party contracting for these services as agent for another person may
not do so when acting under a personal care POA.
FountainWood contends it did not agree to provide, nor did it provide, health care
to Lovenstein. We disagree. The record demonstrates Charles, acting under her personal
care POA, contracted with FountainWood to provide health care. Among other things,
FountainWood agreed to provide dementia care as part of its custodial care. As stated
earlier, this higher level of care required staff members to be trained on issues that
included health care, such as hydration, skin care, therapeutic activities and behavioral
challenges. (22 Cal. Code Regs., § 87705, subd. (c)(3)(A).)
There is little doubt the Legislature intended the type of custodial care
FountainWood agreed to provide Lovenstein to qualify as health care for purposes of the
HCDL and the personal care POA. 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

13
& Proceedings 298 (1982) (Handbook).)6 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, italics added.) The Legislature adopted
this definition when it enacted the HCDL’s predecessor statute. (Stats. 1983, ch. 1204, §
10, p. 4615; see 17 Cal. Law Revision Com. Rep. (1984) pp. 103, 117-118.)
In 1999, in response to a new uniform act, the Uniform Health-Care Decisions Act
(9 West’s U. Laws Ann. (2005) U. Health-Care Decisions Act, pp. 83, 85), the California
Law Revision Commission proposed, and the Legislature adopted, the HCDL. (Stats.
1999, ch. 658, § 39, p. 4860; see 29 Cal. Law Revision Com. Rep. (1999) pp. 1, 5.) The
HCDL drew “heavily” from the Uniform Health-Care Decisions Act. (29 Cal. Law
Revision Com. Rep., supra, at p. 5.) It reenacted the same definition of “ ‘[h]ealth
care,’ ” and it enacted for the first time the definitions of “ ‘[h]ealth care decision’ ” and
“ ‘[h]ealth care institution’ ” as described above. (Prob. Code, §§ 4615, 4617, 4619,
4621.)
The Law Revision Commission’s comments on the terms “ ‘[h]ealth care’ ” and
“ ‘[h]ealth care institution’ ” show it intended those terms to apply to custodial care and
residential care facilities that provide custodial care. Adopting comments made by the
National Conference of Commissioners, the Law Revision Commission stated the
“definition of ‘health care’ . . . is to be given the broadest possible construction. It
includes . . . 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,

6 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.)

14
residential-care facility, home health agency or hospice.” (Ibid., italics added.) (Prob.
Code, §§ 4615, 4619.)
“ ‘[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 intended the HCDL to apply to decisions
concerning custodial care rendered by a residential care facility for the elderly that
involve health care. An attorney-in-fact such as Charles operating under a personal care
POA, as opposed to a health care POA, does not have the authority to obtain such health
care for her principal.
FountainWood argues we have it wrong. In addition to asserting it did not
contract to provide health care, an argument we just rejected, FountainWood contends
Charles’s executing the admission agreement was not a health care decision because
FountainWood is not a “health care institution.” 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 it is not a “health care institution” under the terms of the HCDL
itself. At oral argument, FountainWood also argued the arbitration clause was
enforceable because Charles had authority outside of that personal care POA to admit
Lovenstein and she had authority under the personal care POA to submit claims to
arbitration. We disagree with each argument.7

7 The parties also cite us to cases that dispute whether the authority to make a health
care decision under a health care POA includes the authority to execute arbitration
agreements. In Hogan v. Country Villa Health Services (2007) 148 Cal.App.4th 259,
267-268, and Garrison, supra, 132 Cal.App.4th at pages 265-266, the courts held the
decision to admit someone to a particular care facility is a health care decision, and the
execution of arbitration agreements as part of the admission process is part of the health

15
 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. The argument is not persuasive. 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.
FountainWood correctly states it is not a licensed “health facility” for purposes of
licensing requirements imposed on medical care facilities. State statute requires persons
and entities to obtain a license to operate a health facility. (Health & Saf. Code, § 1253.)
For purposes of this rule, 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 . . . .” Such a health facility 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).)
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

care decisionmaking process. However, in Young v. Horizon West, Inc. (2013) 220
Cal.App.4th 1122, 1129, the court, without expressly stating whether a decision to admit
someone to a care facility is a health care decision, ruled in dicta that the authority to
make health care decisions under a health care POA did not include the authority to
execute an arbitration agreement unless expressly granted in the health care POA. In any
event, it did not say the holder of a personal care POA can execute an arbitration clause
in a health care agreement while lacking authority to execute the health care agreement
itself. Charles in this instance made a health care decision she had no authority to make
under the personal care POA.

16
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].)8
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”
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

8 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.)

17
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. Heath care is defined differently for purposes of the PAL than it is
defined in the statutes FountainWood recites. “ ‘[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 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
“ ‘[h]ealth care,’ ” “ ‘[h]ealth care provider,’ ” and “ ‘[h]ealth care institution’ ”
expansively and differently than it defined those terms and related terms in other statutes.
It defined “ ‘[h]ealth care’ ” as “any” care or service to maintain or affect a person’s
physical or mental condition. (Prob. Code, § 4615.) It defined a “ ‘[h]ealth care
provider’ ” and a “ ‘[h]ealth care institution’ ” as any individual and institution authorized
by law to provide such broad “health care.” (Prob. Code, §§ 4619, 4621.) Serving a
different purpose, the other uses of the terms “health facility” and “health care provider”
have little relevance here.
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

18
“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 that residential care facilities for the
elderly may provide. 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 and for purposes of defining the scope of a
personal care POA. 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. As we explained, it defines a health care institution as any entity that provides
care—any care—to maintain or affect a person’s physical or mental condition. We and
the Kotler court are addressing different questions.
Even if FountainWood was not a health care institution, its employees who
provide care or services that include health care to maintain a person’s physical or mental
condition qualify as health care providers for purposes of the HCDL and, in turn, the
personal care POA. Charles did not have authority under her personal care POA to
engage those employees to provide health care to Lovenstein.
FountainWood next raises a different line of attack. Instead of arguing we should
interpret the HCDL and the personal care POA consistent with other statutes that apply to
medical care facilities, FountainWood directs us to 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

19
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,
and defining a residential care facility for the elderly to be a “health care provider” or a
“health care institution” under the HCDL creates surplusage. We disagree.
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 terms “health care institution” and “health care
provider.”
In one such statute, Probate Code section 4674, the HCDL prohibits “[t]he
patient’s health care provider or an employee” of that provider and the “operator or an
employee of a residential care facility for the elderly” from witnessing the execution of a
health care POA. (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 “health care providers” or employees of a “health care provider” for
purposes of the HCDL.
Another statute, Probate Code section 4659, prohibits the “supervising health care
provider or an employee of the health care institution where the patient is receiving care”
and an operator or employee of a “residential care facility” where the patient is receiving

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.)

20
care from serving as an attorney-in-fact under a health care POA. (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.”
Under our interpretation of the HCDL, there is no surplusage. The Legislature
was concerned about conflicts of interest and fraud, and it recognized residents and
potential residents of residential care facilities faced those risks not only from health care
providers and institutions and their employees, but also from employees and operators of
residential care facilities that provided only personal care and who were not health care
providers. It thus reasonably extended these conflict-of-interest prohibitions to apply to
persons who otherwise were not addressed in the HCDL.
In its reply brief and at oral argument, FountainWood raised another argument. It
contended Charles had authority to admit Lovenstein outside of the personal care POA,
and, combined with the authority granted under the personal care POA to submit claims
to arbitration, she could agree to the arbitration clause as part of admitting Lovenstein. In
other words, whether or not admitting Lovenstein was a health care decision, agreeing to
the arbitration clause was not. FountainWood did not raise this argument in its opening
brief, and, accordingly, has forfeited it. (Julian v Hartford Underwriters Ins. Co. (2005)
35 Cal.4th 747, 761, fn. 4.) Even if FountainWood had raised the argument, we would
reject it. Charles did not have authority to execute the health care agreement, including
the arbitration clause, because Hutcheson’s authority was known to FountainWood.
Persons other than those named as attorneys-in-fact under a health care POA may
admit someone to a residential care facility for the elderly. Obviously, conservators and
guardians have this authority. State regulations also authorize a person to be admitted by
her spouse or family member. (22 Cal. Code Regs. §§ 87101, subd. (r)(3), (r)(5), (r)(6);

21
87457, subd. (b); 87507, subd. (c).) The HCDL also authorizes a patient to designate a
surrogate to make health care decisions whether or not the patient has a health care POA.
(Prob. Code, § 4711.) And case law has recognized the authority of next of kin to make
health care decisions for an incompetent relative who did not make a health care POA or
designate a surrogate. (See Barber v. Superior Court (1983) 147 Cal.App.3d 1006, 1020-
1021 [wife was proper surrogate to decide whether to withdraw life support from
husband].)
Moreover, a person named as an attorney-in-fact in a health care POA may not
necessarily have exclusive authority to make health care decisions on behalf of her
principal. But such an attorney-in-fact “has priority over any other person in making
health care decisions” for the resident so long as the attorney-in-fact “is known to the
health care provider to be reasonably available and willing to make health care
decisions.” (Prob. Code, § 4685.) That was the situation in this case.
FountainWood possessed Lovenstein’s health care POA naming Hutcheson as
Lovenstein’s health care agent, thereby giving her priority over Charles with regard to
health care decisions. In her declaration, Hutcheson testified: “We submitted
[Lovenstein’s health care POA] to Eskaton Fountainwood Lodge in connection with
Eskaton’s request to know who my aunt had assigned to make health care decisions for
her.” By giving the health care POA to FountainWood, Hutcheson informed
FountainWood she was available and willing to make health care decisions for
Lovenstein. As a result, because the admission agreement in this instance was a health
care agreement, FountainWood was obligated to seek Hutcheson’s consent and her
agreement to the arbitration clause before it could rely on any authority Charles may have
had to agree to arbitration. We would not be discussing an arbitration agreement had
Charles not made a health care decision. Without that decision, there is no arbitration
agreement in dispute. And we will not extend the authority to execute arbitration

22
agreements in non-health care related matters to the very matters for which the authority
is expressly denied.
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 health care agreements containing arbitration clauses are executed by
persons having legal authority to do so. Charles was not such a person in this case.
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. (2002) 29 Cal.4th 200, 213.) Our
interpretation meets that standard. The Legislature intended that a decision to admit
someone to a residential care facility for the elderly for the provision of health care is 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, Charles’s decision to agree to arbitration as part of
admitting Lovenstein is void as she had no authority to execute an arbitration agreement
as part of making a health care decision.
III
Ostensible Agency
FountainWood contends Charles’s and Lovenstein’s behavior led FountainWood
to believe Charles had the authority to execute the arbitration agreement and thus created
an ostensible agency we should enforce. We disagree.

23
 “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
health care agreement containing the arbitration clause. FountainWood argues there is no
evidence Lovenstein or Charles affirmatively informed it that Charles was not authorized
to execute the agreement. FountainWood, however, came into possession of
Lovenstein’s health care POA that named Hutcheson as Lovenstein’s health care
attorney-in-fact, yet it did not raise the discrepancy with Charles or Hutcheson or seek
Hutcheson’s authorization to render health care to Lovenstein and execute the arbitration
agreement. Lovenstein’s silence and possible lack of capacity do not constitute
negligence in this instance. No ostensible agency was created.

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 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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